Tag Archives: international criminal law

Authors meet Readers series: Dr Pádraig McAuliffe on Transitional Justice and Rule of Law Reconstruction

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We are delighted to welcome this blog post from Dr Pádraig McAuliffe,  Lecturer in Law at the University of Dundee, and incoming Senior Lecturer at the School of Law and Social Justice, University of Liverpool. Pádraig completed his PhD at UCC under the supervision of Prof Siobhán Mullally, on post conflict reconstruction in Timor Leste (East Timor), focusing in particular on the Special Panels for Serious Crimes – a hybrid transitional justice mechanism. Pádraig’s research was supported by an Irish Research Council Government of Ireland PhD scholarship. While completing  his PhD at UCC, Pádraig undertook fieldwork in Timor Leste and was also a visiting fellow at UCLA, School of Law. Prior to taking up a lectureship at the University of Dundee, Pádraig completed a traineeship at the Department of Foreign Affairs, Legal Division.

PMc bookPádraig has published extensively in the field of transitional justice and post conflict reconstruction. In this post, Pádraig discusses his recently published book, Transitional Justice and Rule of Law Reconstruction:  A Contentious Relationship (Routledge: 2013).

 

 Dr Padraig McAuliffe, Lecturer, University of Dundee, author of Transitional Justice and Rule of Law Reconstruction: A Contentious Relationship (Routledge 2013)

pgmcauliffe Five years ago I went on field research to Timor-Leste, the focus of my PhD, to examine the impact of the trials of crimes from the period of independence in 1999 on the on-going process of rebuilding the national justice system. I arranged a series of interviews with local people, judges, and figures from the plethora of UN and multilateral agencies involved in these areas.

 What struck me in so doing was that people I would interview in relation to prosecutions for crimes against humanity had little or no idea what other interviewees concerned with justice sector reform were doing, despite a general belief in scholarship that the two areas would go hand in hand. I noted this surprising phenomenon parenthetically in my thesis, forgot about it completely, but when I began to think about possible areas of exploration for a book, I thought it would be a fertile field for examination.

What I discovered in writing the book was that this problem of the left hand not knowing what the right was doing in East Timor was being replicated in many other peace-building environments – DR Congo, Sierra Leone, Bosnia, Kosovo, Cambodia. Transitional justice is assumed to conduce to rebuilding the rule of law in even the most critical scholarship in the field, but mutually beneficial symbiosis is more apparent on paper than on the ground.

Concern has also been expressed that it is often the same small pool of talent’ that will undertake both tasks and that the burden of external assistance for dealing with past human rights abuses will fall not on the international justice community, but rather the traditional rule-of-law development organizations on account of their larger network of international organizations, aid agencies, and other donor and implementing bodies. While transitional justice has sometimes stimulated beneficial reform, it can also have the opposite effect – in Kenya, justice NGOs began to give up on campaigns to use a national tribunal to pursue justice for post-election violence when the use of the ICC appeared more immediately feasible. Fear has been expressed that activities (such as transitional justice) that are popular and well-funded may be ‘cherrypicked’ to the detriment of strengthening the justice sector as a whole.

International criminal justice tends to strip national judiciaries of resources and staff, while at the other end of the spectrum the use of indigenous or traditional forms of justice to reckon with localised human rights abuses has consistently been isolated from on-going process of integrating these informal mechanisms into the state justice system.

One explanation my book identifies for this gap is the professional balkanization that typically afflicts rule of law reconstruction missions where different experts and agencies with divergent mandates and different institutional dynamics concentrate intensely on their core competencies, producing hyperfocused approaches that fail to add up to an integrated and effective whole. The presumption appears to be that there will be a complementary overlap between transitional justice and rule of law reconstruction, but given the failure to think through their inter-relation, the book identifies a significant risk of ‘underlap’ where incoherence results from the cacophony of projects.

However, professional balkanization is only the organizational form of a wider problem, namely that activists and theorists in both communities have fundamentally different conceptions of what the rule of law means and requires in post-conflict and post-authoritarian transitions. As this book examines, neither group may not have much knowledge of key debates in the opposite field.

My book therefore attempts to explain how those involved in trials, truth commissions and lustration view the rule of law (a very value laden conception focussed primarily on human rights and norms with little attention given to institutions or the cultural commitments on the parts of ruler and ruled to legality) differently to those attempting to rebuild courts, police systems and prisons (a more technocratic, culture-driven view which incorporates human rights but avoids conflating the two). In so doing, it examines differences of opinion on criminal trial (for the former, it is a means of political signalling where fair trial values are contingent, for the latter it is an example to establish scrupulously fair standards), international criminal law (for the former, international trials are often a superior option because they reinforce the global values of norms, for the latter they risk de-legitimising or infantilising national court systems) and indigenous justice (seen in transitional justice as a bastion of resistance to the state, seen in justice sector reform as a key complement or gap-filler for the nascent state justice system).

Arguing that the often Messianic transitional justice community would do well to heed the limitations of its mechanisms and the radically imperfect conditions to which they deploy, the book recommends policy-makers to re-balance the compromises inherent in transitional justice mechanisms against the foundational demands of rule of law reconstruction.

Prioritizing achievable and pragmatic justice sector reform objectives over the more profound but potentially unobtainable political ends that dominate transitional justice theory, the book recommends that a more clear-eyed vision of costs and benefits, risks and opportunities is required when decisions are made to employ, circumvent or complement the transitional state’s institutions of justice by internationalised trials, truth commissions and other sui generis processes.

 

 

 

 

 

The Value of the Charles Taylor Judgment, by Fiona O’Regan

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On Thursday 26 April 2012, Charles Taylor, former President of Liberia was convicted of aiding and abetting eleven counts of war crimes and crimes against humanity by the Special Court for Sierra Leone (SCSL).  Among the crimes Taylor was convicted of were murder, rape, recruitment and use of child soldiers, pillage, enslavement and acts of terrorism (judgment summary available here).The Taylor judgment is historic because it marks the first occasion since Nuremberg that a sitting or former head of state was convicted by an international criminal court. 

The Taylor conviction is the latest in a series of significant achievements for the SCSL.  The Court has in the past drawn praise for being the first international court to convict individuals of recruitment and use of child soldiers as well as, in the same case (the AFRC case), recognise the crime of forced marriage.  In addition, the SCSL has been relatively efficient and managed admirably with its far more limited resources in contrast to the heavily financially supported ad-hoc tribunals who have attracted consistent criticism for their perceived wastefulness.  The Court has also developed a comprehensive outreach programme and engaged in effective capacity building, through employing a significant number of native Sierra Leoneans in its activities.  Furthermore, the conclusion of the Taylor case will mark the final chapter in the work of the SCSL, so that it shall become the first of the major international criminal tribunals of the modern era to complete its mandate.

However, the Taylor judgment is problematic in certain respects.  Firstly, Taylor has only been convicted of crimes committed in connection to the Sierra Leone conflict and thus, the myriad of crimes he is linked to in his native Liberia look likely to remain unpunished.  In addition, Taylor has been convicted of aiding and abetting the crimes by the SCSL, a less serious mode of liability than the Prosecutor would have hoped of securing the convictions under.  Finally, many of those directly responsible for the crimes Taylor was convicted of are unlikely to be brought to justice, which for many of the victims of these crimes is unacceptable and mars the significance of the Taylor judgment. Each of these factors contributes to an image of what J. Peter Pham, in a New York Times Op-ed, calls “incomplete justice” in the Taylor case and “demonstrates the severe limitations of an international criminal justice system that is insufficient to deter future atrocities”.  Thus, whilst Charles Taylor has been found guilty by an international criminal court, the limited scope of this accountability and the impunity gaps it exposes, detracts from the impact such a judgment could have had had the case been more all-encompassing.

Nevertheless, the value of the Taylor verdict should not be dismissed.  International criminal justice by its nature will always be limited and imperfect, considering the amount of potential defendants, the restricted resources and the complex political difficulties that surround the task of bringing individuals to justice.   However, these challenges do not mean that constructive results cannot emerge from this flawed system.  In particular, international criminal trials possess a considerable expressivist potential, whereby the message sending ability of the system can help increase respect for the rule of law as well as facilitate the creation of a historical record of the relevant atrocities.  As Drumbl posits, “International trials have a better chance of becoming the kinds of “popular trials” that define a debate, remind us of the content and value of law, or serve as intergenerational “signposts” in history”.  The classic example of this powerful function is of course the Nuremberg trials, which for all their flaws, still serve as a source of inspiration to those engaged in international justice today.

The Taylor judgment may also carry some of this expressivist potential.  Although the case may not have been ideal, it still represents an exceptional occurrence: a once very powerful figure being held to account by the international community for very serious crimes. According to the Prosecutor in the case, Brenda J. Hollis, the judgment “reinforces the new reality, that Heads of State will be held to account for war crimes and other international crimes,” and “affirms that with leadership comes not just power and authority, but also responsibility and accountability. No person, no matter how powerful, is above the law.” Thus, this conviction ought to send a powerful message to other errant heads of state engaged in similar crimes that impunity is no longer guaranteed.  The limitations of the case may reduce the potency of this message, but they are unlikely to diminish it completely and thus, the Taylor judgment could yet become a beacon of hope to victims of similar leaders that one day these individuals (such as Laurent Gbagbo and Omar Hassan Ahmad Al Bashir) may yet be brought to justice.

Charles Taylor Found Guilty before the Special Court for Sierra Leone by Anna Marie Brennan

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The Special Court for Sierra Leone delivered its verdict in the trial of Charles Taylor last Thursday. Charles Taylor had been charged with providing material support to the Revolutionary United Front which killed thousands of civilians in Sierra Leone during the civil war from 1991 until 2002.

 

This is a very significant decision for a number of reasons. First of all, Charles Taylor is the first former head of state to have been convicted before an international criminal tribunal since the Nuremberg Trials in the aftermath of World War II. Even though Charles Taylor was found not guilty of ordering war crimes or crimes against humanity the Special Court for Sierra Leone concluded that he had supplied weapons and soldiers to the Revolutionary United Front. The Court therefore found Charles Taylor guilty of aiding and abetting war crimes during the civil war in Sierra Leone. Moreover, the Special Court for Sierra Leone concluded that Taylor had express knowledge that the Revolutionary United Front were carrying out atrocities against the general civilian population. Even though Taylor claimed that he had attempted to facilitate peace talks with the Revolutionary United Front the Court nevertheless concluded that Taylor had in fact encouraged the rebel group not to disarm and to carry on their armed attacks against civilians.

Human rights groups have welcomed last week’s verdict. In particular, Elise Keppler from Human Rights Watch told the BBC that “[t]his is a significant decision” and that “Charles Taylor has been called to account for the crimes in Sierra Leone. It is an incredible day for international justice but most of all for victims in Sierra Leona and everywhere.” Nevertheless, the Court’s judgement last Thursday was not without controversy. Following the reading of the verdict by Presiding Judge Lussick, Judge El Hadji Malik Sow made an attempt to speak. According to both Jennifer Easterday and Sara Kendall who were seated in the public gallery, “a few words from an unidentified speaker [were heard] before the microphones were cut off.” A metal grate was also lowered to hide the courtroom from the public gallery. Moreover, while people waited for press statements from the prosecution and the defense teams, a document was apparently circulated containing the statement made by Judge Sow. It would appear that the court stenographer had carried on typing into the transcription program even though the other judges were filing out of the courtroom. This text appeared on the screens of those seated in the courtroom. A legal assistant on the defense team of Charles Taylor wrote down the brief statement out of concern that the Special Court for Sierra Leone would not include the judge’s statement in the official record. Judge Sow’s statement was as follows:

The only moment where a Judge can express his opinion is during the deliberations or in the courtroom, and pursuant to the rules, when there is no deliberations, the only place for me in the courtroom. I won’t get – because I think we have been sitting for too long but for me I have my dissenting opinion and I disagree with the findings and conclusions of the other Judges, standard of proof the guilt of the accused from the evidence provided in this trial is not proved beyond reasonable doubt by the Prosecution. And my only worry is that the whole system is not consistent with all the principles we know and love, and the system is not consistent with the values of international criminal justice, and I’m afraid the whole system is under grave danger of just losing all credibility, and I’m afraid this whole thing is heading for failure.

 

Despite the fact that Judge Sow, as an alternate judge, was not entitled to speak during the delivery of the verdict, his brief statement raises a number of interesting questions. First of all, his statement indicates that there were “no deliberations” indicating that there were significant communication problems among the judges in Trial Chamber II. Judge Sow also criticised the length of the trial which lasted for nearly four years. He also questioned the Trial Chamber’s judgment that the Prosecution had satisfactorily proven their case against Charles Taylor beyond reasonable doubt. Nevertheless it is important to note that the full judgment has yet to be released. Therefore, it is not yet clear what evidence was found satisfactory to meet the burden of proof required. In any event, it remains to be seen whether the Judge Sow’s statement will have a lasting impact on the legacy of the Special Court for Sierra Leone.

International Criminal Court Delivers First Ever Verdict in Lubanga Case by Anna Marie Brennan

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The International Criminal Court delivered its first ever verdict in The Hague this morning in the case of Thomas Lubanga.

Lubanga, who became the political leader of the Union of Congolese Patriots in 2002, had been charged with recruiting and using child soldiers in armed hostilities in the north-eastern region of the Democratic Republic of Congo (DRC). He pleaded not guilty to the charges and contended during trial that he did not take any part in the hostilities. Lubanga also argued that he was only the political leader of the UCP and was not the commander of the party’s armed wing. However, the Prosecution accused Lubanga of using boys and girls under the age of 15 as bodyguards, sex slaves and soldiers.

During the proceedings video footage was admitted into evidence which appeared to depict Lubanga inciting child soldiers to actively participate in tribal warfare in the north-eastern region of the DRC. In a unanimous decision, the three trial judges held that the evidence proved that as the leader of the UCP and its armed faction, Lubanga was responsible for the recruitment of child soldiers who took part in inter-tribal warfare in the region. 

This is landmark decision for a number of reasons. First of all, it is the first verdict to be handed down by the International Criminal Court after it was established more than ten years ago. It is also the first ever trial to focus specifically on the use of child soldiers in an armed conflict situation and therefore could set a precedent for individuals such as Joseph Kony, the leader of the Lord’s Resistance Army in Northern Uganda, who still remains at large.

At the same time, the trial of Thomas Lubanga was not without controversy. In June 2008, the proceedings were halted after the court ruled that the refusal by the Prosecutor to disclose exculpatory evidence, from sources such as the United Nations, had infringed the accused’s right to a fair trial. Even though the Prosecutor had acquired the evidence on the condition of confidentiality the trial chamber held that the Prosecutor had wrongly applied the Rome Statute of the International Criminal Court. As a consequence, the International Criminal Court ordered the release of Lubanga on the grounds that a fair trial of the accused was not possible because there was no longer any justification for his continued detention. However an Appeal Chamber agreed to keep Lubanga in custody while the Prosecutor appealed the trial chamber’s decision. In November 2008, the Prosecutor agreed to make all confidential information available to the trial chamber. As a result, the trial chamber overturned its ruling and ordered the resumption of the trial. Although the Prosecutor was widely criticised for his conduct the International Criminal Court was commended for its efforts to ensure the fair trial of Lubanga. 

Nevertheless, the International Criminal Court can be criticised for a number of reasons. States such as China, Russia and the United States who are permanent veto-holding members of the UN Security Council have not signed the Rome treaty establishing the Court. This in turn has arguably undermined the authority and influence of the court in the international arena. The Court is also impeded in carrying out its functions by not having its own police force to execute arrest warrants and as a consequence relies on the goodwill and support of the international community to capture and detain suspects. However, the most contentious issue is that despite the fact that the International Criminal Court has nearly 700 employees and had a budget of nearly 900 million dollars during the first decade of its existence it still took almost seven years to initiate the trial of Thomas Lubanga. 

International legal experts, such as Professor Schabas at Middlesex University, have also criticised the outgoing Prosecutor of the ICC, Moreno Ocampo, for only investigating and initiating proceedings against the losing parties in armed conflict situations. In particular, Professor Schabas has argued that the prosecutor has “avoided situations where he would be likely to step on the toes of the permanent members of the Security Council, from Afghanistan to Gaza, to Iraq, to Columbia.” In conclusion, a persuasive argument can be made that the International Criminal Court may not be fulfilling the actual purpose for which it was established; to bring individuals suspected of committing international crimes to justice.

The Denial of Humanitarian Assistance: The case of Syria

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The International Committee of the Red Cross (ICRC) has now entered the sixth day of negotiations with the Syrian authorities over allowing access for humanitarian assistance to the neighbourhood of Baba Amr in Homs. The Syrian authorities have cited security concerns for the denial of access to the ICRC and the Syrian Red Crescent, claiming that the neighbourhood is booby trapped and landmined. Yet the UN Secretary General, Ban Ki-Moon, has stated that he has received “grisly reports” of summary executions and torture by Syrian troops, and it is alleged that the delay in allowing access is so that Syrian forces can hide evidence of such killings. Meanwhile, the Irish authorities have pledged €500,000 in humanitarian assistance toSyria, with Tánaiste and Minister for Foreign Affairs Eamon Gilmore, highlighting the importance of immediate and unhindered access for all humanitarian agencies, and the danger of any militarisation of humanitarian assistance.

The Right to Humanitarian Assistance under IHL

Humanitarian access, particularly in the midst of an armed conflict, has long been a contentious issue. Nevertheless, while the extent of a binding international legal right to humanitarian assistance remains contested, Geneva Convention IV relative to the Protection of Civilian Persons in Time of War does provide certain rights to humanitarian assistance for civilian populations during armed conflicts. For example, Article 23 provides that the entire population in a conflict zone is entitled to receive medical supplies and objects necessary for religious worship; while particularly vulnerable groups such as children under fifteen, expectant mothers and maternity cases are additionally entitled to essential foodstuffs, clothing and tonics. The forms of assistance allowable in international armed conflicts were expanded via Article 70 of Additional Protocol I in 1977 to include clothing, bedding, shelter and other supplies necessary for the survival of the civilian population, plus objects necessary for religious worship.

While ICRC acknowledges that military considerations are part and parcel of decisions surrounding the provision of humanitarian assistance to civilians in conflict zones, GV IV also stipulates that civilian populations are entitled to a minimum level of protection against some of the consequences of war, with key protections in place for hospitals and “neutralised zones”. Particularly vulnerable groups such as the sick and wounded or the elderly should also receive explicit protection.

Furthermore, Article 70 API utilises non-discretionary language: “If the civilian population … is not adequately provided …, relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken” (emphasis added). Nevertheless, despite this mandatory language, Article 70 then introduces certain limitations on the provision of this humanitarian assistance. First and foremost, the provision that humanitarian assistance must be “subject to the agreement of the Parties concerned”. Additionally, the Parties have the right to prescribe technical arrangements, including search procedures, under which the passage of humanitarian supplies are permitted. Meanwhile, although Article 71 API provides that humanitarian personnel shall be respected and protected in the discharge of their functions, it also stresses that “[u]nder no circumstances may relief personnel exceed the terms of their mission … In particular they shall take account of the security requirements of the Party in whose territory they are carrying out their duties”.

These provisions reflect the recognition throughout IHL that while parties to a conflict have explicit responsibilities towards civilians under their control, individual rights may be legitimately constrained, either for military necessity, security reasons or due to insufficient resources.

Considering that the Syrian authorities have argued security concerns for the denial of access for the ICRC and Syrian Red Crescent, at face value this might imply that they are justified in their current stance. Indeed, internal armed conflicts present further difficulties for humanitarian access. Additional Protocol II does not contain the same level of detail regarding relief activities for civilian populations, and Article 18(1) APII provides only a right for humanitarian agencies such as the Red Cross to offer their services for the victims of internal armed conflicts. By implication, such an offer may be refused by a Party to the conflict. Yet, Article 18(2) once again uses mandatory language in proscribing that “[i]f the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival … relief actions for the civilian population … shall be undertaken”.

Furthermore, the provisions of humane treatment set out in Common Article 3 apply in all internal armed conflicts, and the ICRC has determined that the provision of humanitarian assistance to civilian populations is part of customary international law. Under Customary International Law Rule 55, the parties to a conflict must allow and facilitate the rapid and unimpeded passage of humanitarian relief for civilians in need, while Rule 56 states that Parties to a conflict must ensure the freedom of movement of authorised humanitarian personnel. Crucially, only in case of imperative military necessity may their movements be temporarily restricted.

The Denial of Humanitarian Assistance as an International Crime

During the negotiations for the establishment of the International Criminal Court (ICC), Sergio Vieira de Mello submitted a communication to the Diplomatic Conference on behalf of the UN Inter-Agency Standing Committee which argued that the wilful denial of humanitarian assistance committed in both international and internal armed conflicts, should be included in the jurisdiction of the Court. While the Rome Statute did not create a specific crime of the denial of humanitarian assistance, the non-provision of humanitarian assistance could be classified as a crime against humanity. As per Article 7 of the Rome Statute, a crime against humanity includes acts committed as part of a widespread or systematic attack against any civilian population that results in murder, extermination, persecution, or other inhumane acts causing great suffering or serious injury to body or to mental or physical health. Indeed, the ICC has noted that “extermination” covers inflicting conditions that destroy life and has specifically highlighted the deprivation of access to food and medicine in this context. Furthermore, Additional Protocols I and II prohibit the deliberate starvation of civilians as a method of warfare, and the ICRC Customary International Law Study has concluded that this prohibition is also part of customary international law in both international and non-international armed conflicts.

So if it is part of a widespread or systematic policy which is considered an attack on a civilian population, the deliberate denial of humanitarian assistance and resultant suffering and potential deaths may amount to a crime against humanity. It is therefore possible for prosecutions under international criminal law to be initiated if evidence comes to light that a deliberate policy of denial of humanitarian assistance has taken place in breach of Syria’s international obligations. Individuals who planned and implemented policies that resulted in the denial of humanitarian assistance could therefore face either national or international criminal charges. The consequential threat of punishment for actions that result in denial of assistance may help ensure not just the mobilisation of national resources for the affected populations, but facilitate access by international agencies to those in need.

On this basis, it would seem that the criminalisation of actions that lead to the wilful denial of humanitarian assistance can provide a key tool in negotiations on humanitarian access in situations of armed conflict. However, Médecins Sans Frontières has noted that:

“… it is the threat of punishment, rather than punishment itself, that might potentially have a deterrent effect. Once the latter has been handed down, the criminal has nothing left to lose. Within a week of the ICC’s arrest warrant for the Sudanese head of state [President Omar al-Bashir], the Khartoum government committed a new series of war crimes, ranging from blocking humanitarian aid to kidnapping humanitarian workers, including the looting and use by Sudanese security forces of MSF’s vehicles, communications devices, and personal identification. So while the threat of charges could act as an incentive in negotiations between the international community and the Sudanese government, the announcement of charges against the Sudanese president drove him into a corner … As far as relying on the fear of international criminal charges to protect humanitarian relief efforts is concerned, we can only stress that it is a risky bet.”

If this is the case, then the ICC should be cautious in bringing charges against Syrian officials at this stage when the conflict is ongoing, but rather should be actively pursuing credible allegations of crimes within the Rome Statute for potential prosecutions in the future. Meanwhile, in the absence of a unified approach from the UN Security Council, the international community must increase the diplomatic and political pressure on the Syrian authorities to respect their international commitments to provide and facilitate humanitarian assistance to all civilian populations.

Call for Papers: 6th Annual CCJHR Postgraduate Conference, 26th April 2012

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The Centre for Criminal Justice and Human Rights (CCHJR) at University College Cork is pleased to announce that the 6th Annual Postgraduate Conference will take place on Thursday, 26th April 2012. The conference is aimed at postgraduate researchers working in the areas of criminal law, criminal justice and human rights.

The theme for this year’s event is “Transformation and Reform: Structures and Mechanisms for Rights-Based Protections”. The aim is to examine the implications for individuals and rights-based protections that arise from recent proposals for major reforms at the national, European and international level, including proposals for changes to the Irish legal profession and potential constitutional amendments, reforms of the treaties and structures of the European Union, and the UN Treaty Body Reform process. This theme is intended to encourage debate and reflection on the challenging question of ensuring the protection of fundamental rights during periods of change and crisis.

This international one-day event is aimed at promising research scholars from Ireland, the UK and Europe in the areas of law, politics, philosophy and the related social sciences. We are especially interested in papers that relate to human rights, criminal justice, criminal law or the intersection of these fields from a national, European or international perspective. We will also welcome papers dealing with issues that fall within the broad theme of the conference.

The keynote address will be delivered by Professor Christopher McCrudden of Queen’s University Belfast. Professor McCrudden is currently working on an integrated theory of comparative human rights law, and is an expert on equality and discrimination, as well as the relationship between international economic law and human rights.

Papers will be streamed thematically. The two best papers, as selected by the conference organisers, will present their paper to the plenary session of the conference.

Abstracts for papers (max. 300 words) should be submitted to the conference organisers by 20th February 2012. Successful conference submissions will be notified by 20th March 2012. To be considered for the best paper and the opportunity to present to the plenary session, full papers should then be submitted by 16th April 2012. Submissions and further enquires should be directed to ucclawconf@gmail.com.

For further information and registration details please visit: www.ucc.ie/en/ccjhr

Please note: a CPD Certificate of Attendance will be available for this conference.

Antonio Cassese 1937 – 2011: Obituary

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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.

Yet more crisis at the ECCC as investigating judge resigns

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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.”

Remembering Vann Nath

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The death was announced yesterday of Vann Nath, one of the few people to survive imprisonment by the Khmer Rouge in Tuol Sleng prison.

Vann Nath survived his imprisonment because of his ability to paint; rather than killing him his jailers forced him to paint and sculpt images of Pol Pot. He was ultimately one of only seven reported survivors of the infamous torture center.

Years later, after the collapse of the Khmer Rouge regime, Toul Sleng was converted into a genocide museum and Vann Nath returned to work there for several years. His painting, many of which still hang in the museum, graphically highlight some of the brutal crimes of the Khmer Rouge. They are a moving testimony to the horrors inflicted on the people of Cambodia by their radical leadership during the 1970s.

Vann Nath’s paintings were a central part of his life’s work to seek justice for the victims of the Khmer Rouge and to tell the story of those years. In 1998, he wrote his memoir – A Cambodian Prison Portrait: One Year in the Khmer Rouge’s S-21 Prison– which is believed to be the only written account by a survivor of Toul Sleng.

When, in 2009, the Khmer Rouge trials finally commenced Vann Nath was the first survivor to testify against Duch, his former jailer who was later convicted of  war crimes and crimes against humanity. At the hearing the Chamber president asked Vann Nath why he wanted to testify, his answer expressed a desire to ensure that Cambodia’s younger generations learnt from the Khmer Rouge period:

“I determined if one day I survived and had freedom… I would compile the events to reflect on what happened so that the younger generation knew – would know of our suffering…. So I had to reveal, I had to write, I had to compile, and it can be served as a mirror to reflect to the younger generation of the lives of those who were accused with no reason, who committed no wrong, and that they were punished that way. That was the very suffering that we received and the suffering that we had because we told them the truth and they did not believe it.”

That belief in the importance of telling the truth and establishing a clear history of the abuses carried out by the Khmer Rouge will perhaps be the most important legacy of the work of the ECCC . For many years the approach taken by Cambodia to how to deal with the legacy of the Khmer Rouge was, as the Prime Minister once said, to “dig a hole and bury the past.” The New York times described the “painful generation gap” that developed as a result, with the older generations having lived through the horror of that period, and the younger generations knowing little if anything of that time. In the run up to the beginning of the Khmer Rouge trials this problem was clearly identified in a 2009 survey carried out by the Human Rights Center at Berkeley Law School. This found that four out of five members of people under 30 knew little or nothing about the Khmer Rouge years, and only 15% said they knew much about the ECCC trials. Two years later, after the Duch trial, a follow-up survey found an increase in the level of knowledge generally, and a positive response regarding the work of the court:

Over three-quarters of respondents (compared to 68% in 2008) believed the ECCC would have a positive effect on the victims of the Khmer Rouge and/or their families such as bringing justice (37% compared to 2% in 2008) and helping victims feel better, have less anger, or help relieve the pain and suffering endured during the Khmer Rouge period (25%).

Vann Nath did not survive to witness the upcoming trial of the four senior leaders of the Khmer Rouge. The case will be more significant in the attempt to establish a public record than the Duch trial. However, it is unclear how effective it will be as the four defendants, Noun Chea, Khieu Samphan, Ieng Sary and Ieng Thirith will not cooperate in the same way as Duch. Their response thus far to the charges laid against them, including that of genocide, relies on a version of history which portrays the Khmer Rouge as national liberators who protected the country from Vietnamese incursions and threats from American bombing during the Vietnam War. 

Regardless of the outcome of further trials, Vann Nath will be remembered as an inspirational artist and human rights advocate. His paintings vividly establish the suffering and abuse of the Cambodian people between 1975-1979. Whilst his emotional testimony before the ECCC was a critical moment in speaking for all victims of the Khmer Rouge, something he had dedicated his life to and had achieved with dignity and integrity.

Finally, below a letter of condoence written by the Documentation Centre for Cambodia is reproduced here:

DC-Cam Letter of Condolence for Vann Nath

Vann Nath: Witness of History

Today, September 5, 2011, Vann Nath passed away. As one of only 14 known survivors of the infamous Tuol Sleng S-21 prison, Vann Nath was a witness to history and exhibited great strength in providing his testimony despite the horrific crimes he suffered and in the face of the impunity enjoyed by his former tormentors for over thirty years. When the Khmer Rouge Tribunal was finally established to seek justice for victims of the Khmer Rouge, Vann Nath chose not to apply for civil party status. He made this choice because he understood that his primary duty was to provide testimony for subsequent generations of Cambodians to learn from. This reflected a concept of justice that focuses on the future of humanity, rather than temporary individual desires for retribution, revenge or remuneration.

 The passing of Vann Nath before others responsible for the creation of Tuol Sleng S-21 prison are tried is a tragedy that highlights the high cost that the simple passage of time can inflict on the pursuit of justice. Sadly, this tragedy repeats itself silently throughout Cambodia, as each day victims of the Khmer Rouge pass away without having been provided any measure of justice. What is even more tragic is the fact that many of these deaths could be prevented if ordinary Cambodians had access to modern healthcare, making the world-class healthcare provided to the accused at the Tribunal appear unfair to many victims. It is hard to explain lofty, abstract goals such as promoting the “rule of law” to victims who cannot afford to even see a doctor.

Nevertheless, by providing medical care to the accused out of respect for fair trial and human rights principles, the Tribunal can present a counterpoint of compassion to the terror, torture and degradation Vann Nath and many others suffered at Tuol Sleng S-21 and other Khmer Rouge prisons throughout Cambodia. Although protecting the rights of former Khmer Rouge leaders can at times be a bitter pill to swallow, doing so, even when it is difficult or unpopular, provides a lesson for the future of which Vann Nath could be proud: that every human being has a right to dignity and equality under the law.

Vann Nath was a friend to many of us and will be missed by everyone at the Center and many others throughout the world. We will all miss, but draw inspiration from, the palpable sense of peace that emanated from within him.

 Youk Chhang, Director, Documentation Center of Cambodia

The Applicability of Common Article 3 to the Geneva Conventions to Armed Attacks by Transnational Armed Groups

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Anna Marie Brennan

This post examines whether armed attacks by Transnational Armed Groups come within the meaning of Common Article 3 to the Geneva Conventions as supplemented by Addition Protocol II (CA3).

A Transnational Armed Group can be described as a non-state armed actor which operates beyond the territorial borders of a single state and carries out serious and violent acts intended to cause fear, death, serious bodily injury and property damage to a person, group or general population in order to force a government or international organisation to perform or refrain from performing a particular act. The best example of a Transnational Armed Group is Al-Qaeda. Other examples of Transnational Armed Groups include Jemaah Islamiyah and the Palestine Liberation Organisation. However, these particular Transnational Armed Groups are more limited in geographical scope and vary in organisation and objectives. At present, Al Qaeda is the only Transnational Armed Group operating on such a wide geographical basis with training grounds in Pakistan, Afghanistan and Uganda. Al-Qaeda has also proven itself to be global in outlook by carrying out attacks in locations such as Madrid, London, Bali, Karachi and New York.

Two requirements define the scope of application of CA3: (1) the existence of an armed conflict; and (2) that it is a non-international armed conflict. However, characterising attacks by Transnational Armed Groups as an armed conflict within the meaning of CA3 raises major policy questions. First of all, ascribing ‘belligerent’ or ‘combatant’ status to members of Transnational Armed Groups might invest members of such groups with rights and privileges under International Humanitarian Law (IHL). Secondly, the classification of attacks by Transnational Armed Groups as an armed conflict may also symbolically aggrandise the Transnational Armed Group by suggesting that states consider them much more than a sinister criminal organisation. Lastly, categorising attacks by Transnational Armed Groups as an armed conflict could also immunise members of such armed groups from prosecution for proportional attacks directed against military targets. As a result of these issues, it is difficult to categorise attacks by Transnational Armed Groups under either traditional perceptions of war or contemporary ideas of armed conflict. Nevertheless, the attacks do exhibit several characteristics of armed conflict including their purpose, coordination and intensity.

Nevertheless, the question whether CA3 regulates armed attacks by Transnational Armed Groups still remains. The text of CA3 provides very little guidance on the issue. In reality, the text of CA3 is only helpful in determining the type of armed conflicts it does not regulate by identifying its field of application as ‘armed conflict not of an international character.’ Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY) has arguably clarified the definition of armed conflict in IHL. In particular, the Appeals Chamber in Prosecutor v. Tadic (Tadic) concluded that:

[A]rmed conflict exists whenever there is a resort to armed force between States and protracted armed violence between … such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal armed conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole of the territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place.

Two features of this definition clarify the definition of ‘armed conflict.’ First of all, the definition suggests that an armed conflict exists only if the armed group controls a segment of the state’s territory. Secondly, the definition categorises internal hostilities as an armed conflict only if the violence is protracted. Jinks notes that both requirements would limit the conditions under which CA3 applies. Even though the definition laid down by the ICTY is persuasive, a careful reading of the Tribunal’s reasoning makes clear that it does not restrict the scope of application of CA3 to Transnational Armed Groups.

The Tribunal’s definition does not necessitate that armed groups have control over territory within the state. The Tribunal defines the circumstances in which IHL applies by carefully analysing its general scope of application, the temporal scope of application and the territorial scope of application. Jinks notes that by defining the territorial field of application for non-international armed conflict the ICTY confirms that IHL is applicable in territory that is no longer under the control of the state and in the whole of that territory.

In addition, the ‘protracted’ armed violence prerequisite does not limit the application of IHL in any considerable way. The conclusion reached by the ICTY Appeals Chamber in Tadic indicates that most instances of internal violence would satisfy this requirement. Whether the internal violence is protracted is determined by reference to the entire time period of the armed hostilities from the initiation to the cessation of the hostilities. Moreover, IHL applies to all acts committed during an armed conflict even if the act was committed before the point at which the ‘protracted’ threshold was crossed. To be precise, the ‘protracted’ requirement does not exclude acts committed in the early stages of a non-international armed conflict. The ‘protracted’ armed violence requirement can be best appreciated as little more than a reiteration of the rule excluding isolated and sporadic acts of violence from the scope of IHL. Furthermore, the jurisprudence of the ICTR established that armed violence over a period of a few months meets the ‘protracted’ requirement and, because of the level and intensity of the armed violence, it constituted an armed conflict within the meaning of CA3.

In conclusion, the intensity, coordination, and pattern of attacks by Transnational Armed Groups against the United States and other states make clear that attacks by Transnational Armed Groups are not simply isolated and sporadic acts of violence and constitute an armed conflict within the meaning of CA3. Attacks by Transnational Armed Groups have involved the coordinated use of force and have demonstrated their capability to operate globally even against military and diplomatic targets. It is undoubtedly clear that the organisational capacity of Transnational Armed Groups such as the Palestine Liberation Front and Al Qaeda distinguishes them from ‘mere bandits’ in that they indisputably possess the de facto capability to carry out sustained armed attacks against states.