Archive for September, 2012
September 30th, 2012 by Julien Maton
Special Tribunal for Lebanon
Tomorrow, the Appeals Chamber of the Special Tribunal for Lebanon (STL) will hear arguments of the Defence against the Trial Chamber decision on the jurisdiction and the legality of the Tribunal.
The Trial Chamber of the U.N.-backed court, which is trying suspects in the 2005 attack that killed former Lebanese Prime Minister Rafik Hariri, dismissed the four Defence motions challenging the jurisdiction and legality of the Tribunal. The Defense Counsel had argued that the Tribunal was established illegally, violated Lebanese sovereignty and had selective jurisdiction, in violation of the principles of fairness and equality before the law.
The Counsel for three of the accused (Salim Ayyash, Mustafa Badreddine and Hussein Oneissi) appealed against this decision on 24 August 2012 and maintained the that Trial Chamber made a mistake when it ruled that Security Council Resolution 1757 was the “sole legal basis” for establishing the STL, failing to consider violations of the Lebanese Constitution, and when it ruled that it could not review that resolution.
If you want to see the hearing, click here.
September 26th, 2012 by Anna Bonini
by Philippa Webb
On 25 September, Equatorial Guinea sought to institute proceedings against France at the International Court of Justice. It is the latest in a series of cases brought by African countries against France for purported violations of the immunity of State officials.
Equatorial Guinea's Teodoro Nguema Obiang, for whom the French authorities have issued an arrest warrant (Photograph: Abdelhak Senna/AFP/Getty Images)
Equatorial Guinea claims that France has breached international law through proceedings and investigative measures taken against the President of Equatorial Guinea and the Vice-President, who is also the Minister of Agriculture and Forestry and the son of the President. Guinea makes references to an arrest warrant being issued against the Vice-President and the seizure of property and premises by French judges during an investigation. This is related to the French ‘ill-gotten gains’ investigation targeting three African leaders and their families for alleged embezzlement of State funds, including €160m worth of assets located in France invested in bank accounts, Riviera villas and luxury cars.
The first challenge that Equatorial Guinea faces is establishing the ICJ’s jurisdiction since there is no basis in the Optional Clause nor in the compromissory clause of a treaty. Equatorial Guinea has therefore brought its claim on the basis of Article 38(5) of the Rules of Court, whereby the Applicant State asks the other State to consent to the Court’s jurisdiction solely for the purpose of that case (forum prorogatum).
This provision of the Rules has been invoked three other times in cases against France. The first time was in Certain Criminal Proceedings in France, where the Republic of the Congo complained about French proceedings against its President, the Minister of the Interior and the Inspector-General. France consented to the Court’ s jurisdiction under Article 38(5), but the case was withdrawn by the Republic of the Congo in November 2010 before a judgment could be rendered:
In Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Djibouti alleged that, inter alia, witness summons against the President, the Procureur de la République and the Head of National Security breached international law. France consented to the proceedings and the Court issued its Judgment in 2008, finding that the dignity of the President had not been harmed by the summons and that the required steps for invoking the immunity of the other two officials had not been taken.
(Photograph: www.trekearth.com)
Finally, in 2007, Rwanda tried to institute proceedings against France under Article 38(5) with respect to arrest warrants issued by French officials against Rwanda’s Chief of General Staff of its Defence Forces, the Chief of Protocol attached to the Presidency and the Ambassador of Rwanda to India. It also challenged a request apparently from France to the UN Secretary-General that President Kagame should stand trial at the ICTR.
France did not consent to the ICJ’s jurisdiction under Article 38(5) so the case was never entered onto the docket or ‘General List’ of the ICJ. France apparently lifted the arrest warrants in 2010.
It will be interesting to see how France will react to Equatorial Guinea’s request. If France consents and the case proceeds to Judgment, it will raise fascinating issues of international law, including whether the ICJ’s views on the scope of the immunity of State officials has changed since the Arrest Warrant Judgment of 2002 and the limits on the pre-judgment attachment of property. It will be a complementary case to Germany v Italy, which looked at these issues from the perspective of the immunity of the State itself.
September 26th, 2012 by Julien Maton
by the United Kingdom Association for European Law (UKAEL) and the Criminal Justice Centre of Queen Mary, University of London
Date: 5 October 2012, 10.00 to 16.30
Venue: The Signet Library – Parliament Square,
Edinburgh, EH1 1RF
Programme:
Chaired by Philippa Watson, Eussex Court Chambers
Welcome by UKAEL President, Professor Sir Francis Jacobs QC KCMG, King’s College London
- The European Public Prosecutor, The Rt Hon Frank Mulholland QC, Lord Advocate ;
- Developments in the exchange and admissibility of evidence in Criminal cases in the EU, Mr Mark Mackarel, University of Dundee ;
- EU Harmonisation of Procedural Safeguards, Dr Robin Lööf, QEB Hollis Whiteman Chambers ;
- How “fundamental” is the Charter right against double jeopardy? Patrick Layden QC TD, Scottish Law Commission ;
- The European Arrest Warrant After NS and Assange, Professor Valsamis Mitsilegas, Head of the Department of Law and Director of the Criminal Justice Centre, Queen Mary University of London;
Fee: £100 for current UKAEL members, £150 for general public.
Students please contact the administrator on ukael@kcl.ac.uk
If you want to register, click here.
September 25th, 2012 by Admas Habteslasie
President Bashar al-Assad (Reuters)
A recent report on the worsening human rights situation in Syria has reignited debate on the referral of Syria to the International Criminal Court.
The report, produced by the Human Rights Council-mandated Independent International Commission of Inquiry on Syria, was presented last week at the twenty-first session of the Council in Geneva. According to the Commission’s lead investigator, Brazilian diplomat and professor Paulo Sergio Pinheiro, “Gross violations of human rights have grown in number, in pace and in scale. Civilians, many of them children, are bearing the brunt of the spiralling violence.” Notably, the report documented an increase in the number of abuses being committed by rebel forces, in addition to continued abuses at the hands of government forces.
Pinheiro revealed that a list of individuals and units believed to be responsible for war crimes would be provided to the UN High Commissioner for Human Rights, Navi Pillay. Following the publication of the report, a number of Arab states at the Human Rights Council submitted a draft resolution calling for an extension of the Commission’s soon-to-expire mandate for another six months.
A number of states at the session called for the referral of the situation in Syria to the International Criminal Court. If the Commission’s mandate is extended, the Human Rights Council would need to appoint a third commissioner in addition to the existing two. Carla del Ponte, former Prosecutor for the International Criminal Tribunal for the Former Yougoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), has been proposed by the Swiss government for the role.
September 20th, 2012 by Julien Maton
Mustafa Amine Badreddine
Today, at the request of the Defence Counsel for Mustafa Amine Badreddine, the press office of the Special Tribunal for Lebanon (STL) issued the following press release:
Last Thursday, on 13 September 2012, the U.S. Department of the Treasury imposed sanctions against Mustafa Badr Al-Din, designating him pursuant to Executive Order 13224 “for providing support to Hizballah’s terrorist activities in the Middle East and around the world”.
The Defence for Mustafa Amine Badreddine (the ‘Defence’) considers that these sanctions amount to political interference with the on-going judicial process before the Special Tribunal for Lebanon (the ‘Tribunal’). By referring to the indictment issued in June 2011 by the Prosecutor of the Tribunal to support the designation of Mr. Badreddine, the United States Government has shown scant regard for the presumption of innocence and for international criminal due process.
In particular, the Defence questions the rationale behind the timing of the sanctions, which do not appear, in so far as they concern Mr Badreddine, to be related to any alleged support on his part to the Assad regime. Rather, having been adopted a few weeks after a date was set for trial in March 2013, the imposition of sanctions appears to be an attempt to influence the Tribunal, prejudicing the minds of the judiciary against Mr. Badreddine in advance of his impending trial and thus interfering with the proper administration of justice. It is notable that in the US Treasury release there is no reference to the fact that Mr. Badreddine is presumed innocent of the charges brought by the STL Prosecutor.
It is highly questionable whether Mr. Badreddine can now ever receive a fair trial before the Tribunal, when the United States – a major sponsor of the Tribunal – has publicly and expressly branded him a “senior terrorist leader”.
Furthermore, the sanctions have paralysed the work of the Defence Team at a critical time in the judicial proceedings, co-counsel John RWD Jones, a dual U.K./U.S. citizen, now having to suspend his legal representation of Mr. Badreddine pending clarification as to whether he can continue to represent Mr. Badreddine without breaching the sanctions regime.
States, including members of the U.N. Security Council, donor countries and states of citizenship of Tribunal judges, should refrain from, and be vigilant against, attempts to influence international judicial proceedings.. The Defence had already alleged, in its submissions on the illegality of the Tribunal, that the Tribunal is an unlawful and political creation. The sanctions recently imposed by the United States on Mr. Badreddine only further weaken the Tribunal’s legitimacy, casting doubt on its ability to provide the accused with a fair trial.
The Badreddine Defence team is represented by Mr. Antoine Korkmaz (lead counsel), Mr. John RWD Jones (co-counsel), Ms. Pauline Baranes (legal officer) and Ms. Sarah Codde (case manager).
Antoine Korkmaz: korkmaz@stl-tsl.org
John Jones: jones@stl-tsl.org
Pauline Baranes: baranes@stl-tsl.org
Sarah Codde: codde@stl-tsl.org
September 18th, 2012 by Julien Maton
A former Khmer Rouge leader has been released after the Extraordinary Chambers in the Courts of Cambodia (ECCC) ruled that she was unfit to stand trial.
Ieng Thirith, 80, was the social affairs minister during the 1970s when the Khmer Rouge was blamed for the deaths of up to two million people.
She is thought to be suffering from Alzheimer’s disease.
Under the terms of her release, Ieng Thirith must inform the Court of the address where she will reside and not change residence without prior authorization. She must also surrender her passport and ID card as well as report to the court whenever it summons her.
She had been due to be released on Friday after the court decided that she suffered from “a progressive, degenerative illness” and that there was no prospect that she could be tried “in the foreseeable future.” The Court stated that these conditions were provisional and that further restrictions could be imposed after it decides on the merits of the appeal submitted by the Co-Prosecutors last week. These conditions are aimed at preventing her from fleeing the country and interfering with the ongoing trials of three other senior Khmer Rouge leaders.
Ieng Thirith was the most powerful woman among the Khmer Rouge top ranks and has always denied any wrongdoing. Prosecutors said she knew that people were dying from starvation and disease on collective farms, but did nothing to stop the brutality.
September 18th, 2012 by Julien Maton
ROUTLEDGE HANDBOOK OF INTERNATIONAL CRIMINAL LAW
Edited by William A. Schabas and Nadia Bernaz
International criminal law has developed extraordinarily quickly over the last decade, with the creation of ad hoc tribunals in the former Yugoslavia and Rwanda, and the establishment of a permanent International Criminal Court. This book provides a timely and comprehensive survey of emerging and existing areas of international criminal law.
The Handbook features new, specially commissioned papers by a range of international and leading experts in the field. It contains reflections on the theoretical aspects and contemporary debates in international criminal law.
The book is split into four parts for ease of reference:
The Historical and Institutional Framework – Sets international criminal law firmly in context with individual chapters on the important developments and key institutions which have been established.
The Crimes – Identifies and analyses international crimes, including a chapter on aggression.
The Practice of International Tribunals – Focuses on topics relating to the practice and procedure of international criminal law.
Key Issues in International Criminal Law – Goes on to explore issues of importance such as universal jurisdiction, amnesties and international criminal law and human rights.
Providing easy access to up-to-date and authoritative articles covering all key aspects of international criminal law, this book is an essential reference work for students, scholars and practitioners working in the field.
466 pages | August 2012
If you want to order it, click here.
September 9th, 2012 by Julien Maton
In a recent article in The Guardian, Richard Dicker discusses the stark contrast between the Nuremberg trial and Guantánamo’s Camp Justice, in light of the politics of the US Government in terms of fair trial rights.
The US government’s willingness to offer a fair trial, as it was the case at Nuremberg, is not reiterated at Guantánamo. On the contrary, the US government restricts the exercise of basic fair trial rights guaranteed by international and US domestic law.
The author states that the Nuremberg trial marked a stunning turning-point in using law to punish the most egregious crimes and laid the foundation for the still-evolving system of international justice. On the other hand, Guantánamo is unlikely to create such a powerful positive precedent.
For instance, anything detainees or their lawyers say in the courtroom is presumed classified, so that none of what they say will ever appear in the public record, explains the author.
Moreover, the prosecutor can unilaterally veto a defense attorney’s decision to call a witness. If this is the case, the lawyer must debate with the prosecutor in front of the judge. For Richard Dicker, this constitutes an unfair allocation of power between prosecution and defense which directly violates the “equality of arms”, and locks in a prosecutorial advantage that undercuts a vigorous and effective defense.
Based on the growing awareness worldwide of the efforts that have succeeded in bringing some of those accused of the world’s worst crimes to justice, Richard Dicker urges policymakers in Washington to raise due process guarantees at Guantánamo if they don’t want to undercut US credibility in pressing for justice elsewhere but also to devalue Nuremberg’s achievements.
September 8th, 2012 by Julien Maton
THE LAW OF TARGETING
by William H. Boothby, Former Deputy Director of Legal Services, Royal Air Force
Targeting is the primary method for securing strategic objectives in an armed conflict. Failure to comply with the law of targeting jeopardizes the achievement of those aims. It is therefore essential that all those involved in or studying issues surrounding targeting have an accurate and complete understanding of this area of law. This book offers the definitive and comprehensive statement of all aspects of the law of targeting. It is a ‘one-stop shop’ that answers all relevant questions in depth. It has been written in an open, accessible yet comprehensive style, and addresses both matters of established law and issues of topical controversy.
- Detailed, practical, and accessible, this is the definitive work on the controversial topic of targeting in warfare
- Highly contemporary account analysing new attack methods, including drone attacks and the complex issues surrounding cyber warfare
- With both a doctrinal and practical perspective, this book will be invaluable to government and army legal advisers as well as to scholars and students in the area
656 pages | August 2012 | Price £95.00
If you want to order it, click here.
September 6th, 2012 by Julien Maton
Abdullah al-Senussi with Muammar Gaddafi. Photograph: Sabri Elmhhedwi/EPA
Deposed Libyan leader Muammar Gaddafi’s intelligence chief was extradited to Libya from Mauritania on Wednesday.
Senussi was sent back to Libya six months after being arrested at Nouakchott airport in Mauritania after flying in from Morocco. He was disguised as a Tuareg chieftain and was carrying a fake passport. He fled Libya after last year’s uprising.
Libya has promised a fair trial for Mr Senussi, accused of crimes allegedly committed during Col Gaddafi’s rule. “Abdullah al-Senussi will have a fair trial according to international standards for human rights, the rights from which Libyans were deprived,” Prime Minister Abdurrahim el-Keib told reporters in Tripoli.
A Mauritanian government source told Reuters news agency that Mr Senussi was extradited to Libya on the basis of guarantees given by the Libyan authorities.
Abdullah al-Senussi is one of the most wanted man in the world as France and the International Criminal Court (ICC) are also seeking his extradition.
After Gaddafi’s son Seif al-Islam, Mr Senussi’s extradition to Libya is a new blow for the ICC. In June 2011, the ICC issued a warrant for Mr Senussi for crimes against humanity alleged to have been carried out in Benghazi, the main base of the Libyan opposition during the revolt last year.
September 5th, 2012 by Raphaelle Rafin
The European Court of Human Rigths (ECtHR) held a public hearing last week in the case of Tymoshenko v. Ukraine. The case concerns Yuliya Tymoshenko, the leader of Batkivshchyna, the main opposition party in Ukraine, and former Prime Minister in 2005 and between December 2007 and March 2010. Ms Tymoshenko was convicted of abuse of power for allegedly making an illegal order for the signing of a contract concerning gas imports and was sentenced by a Ukrainian court to seven years’ imprisonment and a three-year ban on holding public office. She is currently receiving treatment in the Kharkiv hospital.
In her application to the ECtHR, Ms Tymoshenko complained that her detention was politically motivated and unlawful and that her detention conditions are inadequate. Ms Tymoshenko claims that the Ukrainian Government thereby violated Art. 3 (prohibition of degrading treatment or punishment), Art. 5 (right to liberty and security), Art. 8 (right to private life) and Art. 18 (limitation on use of restrictions on rights). On 14 December 2011, the case was given priority in view of the serious and sensitive nature of the allegations raised.
- Yuliya Tymoshenko (c) Reuters
The Court heard submissions from the representatives of Government and of the applicant and put questions to both parties. The Court is now to conduct private deliberations. On 3 July 2012, the Court found that Ukraine had violated the rights of the former Minister of the Interior of the Ukrainian Government headed by Yuliya Tymoshenko, Yuriy Lutsenko.
For the ECtHR press release, click here.
For the webcast of the hearing, click here.
September 4th, 2012 by Anna Bonini
by Rachel Lindon
For the English version of this post, click here.
Deux procès se sont tenus à ce jour en France, à l’encontre de somaliens accusés d’actes de piraterie au large des côtes somaliennes.
Lors du premier procès, qui s’est tenu en novembre 2011, dans l’affaire dite du Carré d’As, sur les six personnes accusées, une a été acquittée, et les cinq autres ont été condamnées à des peines de 4 à 8 années d’emprisonnement. Le Parquet ayant interjeté appel, cette décision n’est pas définitive.
Lors du deuxième procès, qui s’est tenu en juin 2012, dans l’affaire dite du Ponant, sur les six personnes accusées, deux ont été acquittées, et les quatre autres ont été condamnées à des peines de 4 à 10 années d’emprisonnement. Cette décision est devenue définitive, en l’absence d’appel des parties.
Ainsi, à ce jour, quatre somaliens se retrouvent libres en France : trois qui ont été acquittés et souffert pendant plusieurs années de détention provisoire indue et arbitraire, et un dont la détention provisoire abusivement longue de quatre années a couvert sa peine (la France, régulièrement condamnée par la Cour Européenne des Droits de l’Homme pour des durées de détention trop longues, a établi un funeste record mondial en matière de détention provisoire de supposés pirates somaliens…).
Après avoir été interpellés en territoire somalien (territoire maritime ou terrestre selon les cas), transférés en France, quelles ont été les conditions des détentions provisoires des somaliens pendant les longs mois d’enquêtes, et qu’a-t-il été prévu à leur sortie ?
A courtroom sketch made on May 22, 2012 in Paris, shows the six Somalis, charged with taking the crew of sailing ship Le Ponant hostage in the Gulf of Aden in 2008 during their trial at Paris’ courthouse. (AFP)
Continue reading ‘Le traitement par la France des somaliens accusés de piraterie’
September 2nd, 2012 by Anna Bonini
Anti-apartheid hero Desmond Tutu has called for Tony Blair and George Bush to be brought before the International Criminal Court in The Hague for their decision to invade Iraq in 2003. In a letter to The Observer, the Nobel peace prize winner accused the former British and US leaders of lying about weapons of mass destruction allegedly owned by Iraq. Archbishop Tutu suggested the decision to take military action produced disastrous consequences not only in Iraq itself, but also in terms of other conflicts subsequently exploding in a variety of areas around the world. According to Desmond Tutu “in a consistent world, those responsible for this suffering and loss of life should be treading the same path as some of their African and Asian peers who have been made to answer for their actions in the Hague”.
The text of Archibishop Tutu’s letter can be found here. For further details, click here.
September 2nd, 2012 by Julien Maton
by Guénaël Mettraux
This blog was commenting yesterday on the strange indictment of 270 South African miners on charges of “murdering” 34 of their co-workers who were killed by South African police. The BBC is now reporting that charges against the miners have been “provisionally dropped”.
It might be that a Prosecutor has woken up today to his better judgment and that he remembered the wise words of Glanville Williams that “the lawyer is interested in the causal parentage of events, not in their causal ancestry”. Or it may be that yet another jurisdiction has started rejecting a legal instrument (the “common purpose” doctrine or “joint criminal enterprise” theory) that is so hard to reconcile with principles of individualized justice and almost impossible to fit into the idea of personal culpability. Either way, it is a good step in the right direction…
September 1st, 2012 by Anna Bonini
Erwin Sperisen (photo: Keystone)
Mr Erwin Sperisen, a Swiss and Guatemalan citizen, was arrested yesterday in Geneva for crimes he allegedly committed between 2004 and 2007 in his capacity of Head of Police of Guatemala. The charges relate, in particular, to cases of extra-judicial executions, torture, forced disappearance and rape perpetrated by the police forces under his control.
In August 2010, an arrest warrant against Mr Erwin Sperisen was issued by Guatemala, following requests by a group of NGOs including TRIAL and the World Organisation Against Torture. Due to his double nationality, the former head of police cannot be extradited to Guatemala, and criminal proceedings against him should have taken place in Geneva. Amnesty International and TRIAL subsequently lamented the failure by the Geneva authorities to take timely action against Mr Sperisen. Yesterday’s arrest comes after a letter rogatory which gave the Geneva prosecutor access to evidence held against Mr Sperisen by the Guatemalan authorities, convincing him of the strength of the case against the former Head of Police.
For further details on this case, click here.
September 1st, 2012 by Raphaelle Rafin
Ignoring objections and calls for mercy from human rights NGOs and States around the world, the Ministry of the Interior of The Republic of the Gambia has issued on Monday a press release confirming the execution by firing squad of nine death row inmates on the previous evening, Sunday 26 August 2012.
The African Commission on Human and Peoples’ Rights (ACHPR) was closely following the situation in the country hosting its headquarters and addressed urgent calls on the President of the Gambia, Yayah Jammeh, not to proceed with the executions and to observe the 30-year moratorium on death penalty. Following confirmation by the Ministry of the Interior, the ACHPR publicly condemned the executions.
The ACHPR has consistently encouraged the abolition of the death penalty in Africa, to implement Article 4 of the African Charter which protects the right to life and prohibits the arbitrary use of capital punishment. In addition, the ACHPR has adopted Resolutions in 1999 and 2008 calling on State Parties to observe a moratorium on the death penalty, with a view to abolishing this practice.
While The Gambia has observed the moratorium since 1981, the ACHPR has noted that the executions constitute a violation of the African Charter, more specifically of Articles 4 and 5. Mrs. Atoki has stated that “[t]hese executions are a disregard of the obligations of the Republic of The Gambia under the African Charter on Human and Peoples’ Rights, other regional and international human rights instruments to which the Gambia is a party and the Constitutive Act of the African Union in which the respect for the sanctity of human life is a principle that should be followed by each Member State.”
Demonstrators in front of the Gambian Embassy in Dakar, 30 August 2012. © AFP - Seyllou
In a protest letter to the Gambian Government, Mrs. Atoki has called on President Yayah Jammeh to continue to ensure that The Gambia complies with its obligation under the African Charter by refraining from further executing prisoners on death row and to continue to observe a moratorium pending the eventual abolition of death penalty.
The UN High Commissioner for Human Rights Navi Pillay noted that in 2010 the Gambia reaffirmed its moratorium on the death penalty when it reported to the Human Rights Council for its Universal Periodic Review, and as recently as April 2011 officially abolished the death penalty for drug offences, in accordance with international standards. Mrs. Pillay also called on The Gambia to “immediately stem this regression in human rights protection, and to impose an official moratorium, effective immediately, on the use of the death penalty.”
September 1st, 2012 by Anna Bonini
by Guénaël Mettraux
The doctrine of “Joint Criminal Enterprise” also known as “common purpose” doctrine has sometimes been lauded as the tool that would end impunity. The flip side of the doctrine is a darker thing however.
Because it is so broad, so extraordinarily flexible and so all-encompassing in its reach, it is capable of spreading criminal liability far and wide, almost indistinguishably to anyone associatedde près ou de loin with a criminal endeavor. When applied to individuals charged with war crimes and other mass atrocities, this fact is generally regarded as a valuable prosecutorial tool capable of reaching into the far corners of organized criminality. Trigger something violent and unlawful and you might be held criminally responsible for all of its natural and foreseeable consequences, regardless of the identity of the perpetrator of those criminal consequences, regardless of the fact that you did not intend these consequences and regardless of the fact that you made no demonstrable contribution to these consequences. Now to an illustration of how such a flexible doctrine may apply in practice…
In one of the strangest ever cases of JCE or common purpose doctrine, South African prosecutors have now dusted off this Apartheid-era instrument and used it to charge 270 miners who were present during a violent demonstration in the course of which 34 fellow miners were shot and killed by South African police officers. The charges? Murder, 34 counts of it.
(Photo: Siphiwe Sibeko/Reuters)
Weird and unfair? Yes and yes. But also strangely valuable as a lesson in legal (in)sanity. Nothing makes the point better about the dangers of a particular rule of law than a good case of abuse of prosecutorial discretion. What shocks, of course, is that these miners did not kill their fellow demonstrators and that they did not intend such a result. These facts are not, however, relevant to that doctrine. Nor is the fact that they did not contribute to the death of any of them other. Their willful participation in an unlawful demonstration in the knowledge that death or injury could result would have been enough. So maybe what should shock our conscience is not the fact that prosecuting authorities acted as they did but that the law itself allowed them to do so and allowed them to drag into the net of the criminal law individuals so remotely connected to the criminal consequences for which they are now charged?
Our willingness to be appalled by prosecutorial or judicial unfairness is of course often first triggered by the sympathy that we may feel towards the accused (Pussy Riot over Mikhail Khodorkovsky; South African miners over Bosnian Serb wartime leaders). But there is another sort of unfairness that we should perhaps also concern ourselves with: the unfairness of letting some being prosecuted and convicted under certain legal standards when we are not ready to see us all being held to the same exacting and expansive standards. Next time a “great advance” is made in international criminal law, we should, I dare suggest, pause and wonder whether that law is really one that we are content to see apply to all, in particular to ourselves.
