Archive for November, 2012
November 30th, 2012 by Raphaelle Rafin
Yesterday, the U.N. General Assembly approved the de facto recognition of a sovereign Palestinian. The General Assembly was called on the International Day of Solidarity with the Palestinian People to vote on a bid by Palestinians for Non-Member Observer State status. There were 138 votes in favor, nine against and 41 abstentions, including Israel and the United States.
Mahmoud Abbas (centre), President of the Palestinian Authority, with his delegation in the General Assembly. UN Photo/Rick Bajornas
Before the vote, Mahmoud Abbas declared “what permits the Israeli government to blatantly continue with its aggressive policies and the perpetration of war crimes stems from its conviction that it is above the law and that it has immunity from accountability and consequences [...] The moment has arrived for the world to say clearly: Enough of aggression, settlements and occupation.” U.N. envoys said Israel might avoid harsh retaliation as long as the Palestinians did not seek to join the International Criminal Court.
While commentators wonder whether or not, and when, Palestine would ratify the Rome Statute, Kevin Jon Heller recalls that, under Articles 11(2) and 12(3) of the Rome Statute, Palestine could accept the Court’s jurisdiction retroactive to 1 July 2002. “Though not the picture of drafting clarity, the two provisions make clear (1) the default position is that the ICC will have jurisdiction only over crimes committed after a state ratifies the Rome Statute, but (2) the state in question may file a declaration with the Registrar accepting the Court’s jurisdiction retroactively.”
Palestine will have to carefully weigh the pros and cons before ratifying the Rome Statute: if Palestine would then be able to refer a situation to the Prosecutor, the ICC would also have jurisdiction on crimes committed by Palestinians.
November 29th, 2012 by Ellie Geranmayeh
The Leveson Inquiry published its much awaited report today on the practices and ethics of the British press. Reflecting on the 2,000 page report, Lord Justice Leveson said the press had “wreaked havoc in the lives of innocent people” for many decades. The report expressly denies a statutory regulation of the press, but rather recommends “independent regulation of the press organised by the press, with a statutory verification process”. The report concludes that the “ball is now in the court of the politicians” as to if and how the recommendations are implemented.
The News of the World came under severe criticism by the report which reflected on the witnesses who had their phones hacked, were followed and had their privacy illegally intruded by the press so as to obtain information. The report describes the behaviour of some journalists as “outrageous” which has made it necessary to have overarching regulation of the press.
Dan Kitwood Getty Images
Accountability
The report focuses on creating a tough new regulator backed by legislation to ensure accountability of the press. This new body must be free of serving editors and uphold the highest level of protection for victims through a legally-binding arbitration process. The regulator must be independently funded and publish its annual findings. It is also proposed that the regulator has powers of sanction over the press through substantial fines. Continue reading ‘Leveson Report – A New Tough Press Regulator’
November 29th, 2012 by Raphaelle Rafin
Today, the Trial Chamber of the International Criminal Tribunal for former Yugoslavia (ICTY) acquitted of all charges Ramush Haradinaj, the former Prime Minister of Kosovo and a former commander of the Kosovo Liberation Army (KLA); and two ex-commanders of the KLA, Idriz Balaj and Lahi Brahimaj.
Ramush Haradinaj, © ICTY.org
The three Accused were charged as members of a Joint Criminal Enterprise (“JCE”) or, alternatively, under other modes of individual criminal responsibility, with crimes allegedly committed by them or by other members of the KLA in 1998 against Kosovo civilians in violation of the laws or customs of war.
While the Trial Chamber found that the crimes alleged in four counts were established or partially established, the Chamber found that “the Prosecution presented no direct evidence to prove that the established crimes were committed as part of a JCE in which the three Accused participated” and considered circumstantial evidence tendered by the Prosecution to prove this allegation. The Trial Chamber came to the same conclusion on alternative modes of accessory liability. Ramush Haradinaj, Idriz Balaj, and Lahi Brahimaj, therefore, were not found criminally responsible as participants in a JCE or individually for the crimes charged in the Indictment. Continue reading ‘ICTY : Acquittal of former Kosovan PM Haradinaj’
November 28th, 2012 by Jessica Peake
On November 20, 2012, 
New Zealand filed a declaration of intervention in the case concerning Whaling in the Antarctic (Australia v. Japan) before the International Court of Justice (ICJ). New Zealand invoked Article 63 of the Statute of the Court which permits a State to intervene in proceedings where the construction of a convention they are a party to is under consideration by the Court.
The Convention in question is the International Convention for the Regulation of Whaling, and in particular Article VIII that provides that “any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for the purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit.” New Zealand has determined that its intervention is necessary “to place its interpretation of the relevant provisions of the Convention before the Court”, “given its long-standing participating in the work of the International Whaling Commission”.
Through intervening in this case under Article 63, New Zealand will be equally bound by the construction given to the International Convention for the Regulation of Whaling by the Court. Australia and Japan, the parties to the case, have been invited to furnish their written observations on New Zealand’s intervention, in accordance with Article 83 of the Rules of Court.
November 28th, 2012 by Raphaelle Rafin
by the British Institute of International and Comparative Law
Date: Tuesday 4 December 2012, 17:00 to 19:00
Venue: British Institute of International and Comparative Law, Charles Clore House, 17 Russell Square, London WC1B 5JP
Chair: Nicholas Bowen QC, Doughty Street Chambers
Speakers: Professor Peter Bartlett, Nottinghamshire Healthcare NHS Trust Professor of Mental Health Law, University of Nottingham
Ms Camilla Parker, Partner, Just Equality
Ms Aleema Shivji, Director, Handicap International UK
Details:
The 3rd December 2012 is the International Day of Persons with Disabilities. In celebration of this, the British Institute of International and Comparative Law is hosting an event on 4th December that examines the scope of application of the Convention on the Rights of Persons with Disabilities (CRPD).
The CRPD entered into force on 3rd May 2008. It is a remarkable international instrument that has received strong international, political support. The purpose of the CRPD is to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity” (Article 1, CRPD).
The CRPD recognises the diversity of persons with disabilities and seeks to ensure their human rights in a wide range of challenging situations. Consequently, the CRPD has incredible breadth in its scope of application, making it a vital tool for ensuring the human rights of persons with disabilities at all times. Three important facets of the application of the CRPD will be addressed by this event:
• Its application to persons with mental disabilities;
• Its application to children with disabilities and its relationship with the Convention on the Rights of the Child; and
• Its application in emergency situations.
Book online or by emailing eventsregistration@biicl.org
November 28th, 2012 by Ellie Geranmayeh
The Zambian government has reportedly been asked to extradite six people alleged to have played decisive roles in Rwanda’s 1994 genocide. The Times of Zambia reported that the Rwandan request was publicized during a Zambian Parliamentary session last Friday.
The Rwandan Genocide claimed approximately 800,000 lives in 1994. Picture: GIANLUIGI GUERCIA, AFP/Getty Images
The newspaper quoted Zambian Foreign Affairs Deputy Ministers, Effron Lungu, as stating that “the Extradition Act, Chapter 94 of the Laws of Zambia could only allow extradition of fugitives if there was an agreement on reciprocal basis”, which was not in place between Zambia and Rwanda. Lungu remained pessimistic about the chances of securing the extradition without an agreement in place between the two governments.
The Rwandan Prosecutor General, Martin Ngoga, said that Lungu’s response was “simplistic” as it failed to take into consideration the gravity of the crime of genocide. Ngoga has reportedly commented that the absence of a reciprocal extradition agreement can be circumvented through the political medium gaining momentum in support of accountability over the 1994 genocide.
Meanwhile, experts have met with Interpol’s general Secretariat during the 5th International Expert Meeting on Genocide, War Crimes, and Crimes against Humanity and expressed urgency in arresting over 130 genocide suspects indicted by Rwanda. At the meeting, groups expressed concern over the indictment of many genocide fugitives suspected to reside in the Democratic Republic of Congo (DRC), Zambia, Zimbabwe, Malawi, Mozambique, Kenya, Tanzania, and Uganda.
November 26th, 2012 by Julien Maton
by Dr Miša Zgonec-Rožej
This analysis is an expanded and modified version of the Chatham House expert comment. If you wish to see it, click here.
The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), on Friday, 16 November 2012, overturned the convictions of two Croatian generals, Ante Gotovina and Mladen Markač, acquitting them of all and any crimes against the Serb civilian population in the Krajina region of Croatia. Two iLawyers, Guénaël Mettraux and John R.W.D. Jones, were members of the Gotovina and Markač defence teams, respectively.
1. Background
Mladen Markač and Ante Gotovina
In 1995, Croatia carried out “Operation Storm”, a military operation to take control over the territory in Croatia’s Krajina region. An estimated 20,000 ethnic Serbs fled their homes and allegedly 150 were killed during the military operation. Before being recaptured by the Croatian Army forces in 1995, the region of Krajina was under the control of the self-proclaimed Republic of Serbian Krajina that had existed since 1991. Two Croatian Serb leaders of the Republic of Serbian Krajina, Milan Babić and Milan Martić, were convicted by the ICTY for their roles in the forcible removal of Croats and other members of the non-Serb population from the Krajina region.
Gotovina, the commander of the Split Military District of the Croatian Army, was the overall operational commander of Operation Storm, while Markač was the Assistant Minister of the Interior and Operation Commander of the Special Police in Croatia. In its judgement delivered on 15 April 2011, the Trial Chamber found that Gotovina and Markač were part of a joint criminal enterprise led by late Croatian President Franjo Tuđman whose common purpose was to permanently remove the Serb civilian population from the Krajina region by force or threat of force. Continue reading ‘Prosecutor v. Gotovina & Markač: Tribunal Acquits Croatian Generals’
November 26th, 2012 by Ellie Geranmayeh
President Mohammed Mursi has come under increasing pressure over his decree, announced on 22 November 2012, which seeks to place his edicts outside the realm of any judicial oversight until a new constitution is approved. Mr Mursi has maintained the temporary measure prevents democratically elected bodies, in charge of writing the constitution, from being undermined.
Pursuant to the decree, no authority can revoke presidential decisions. Additionally, there is a bar on judges dissolving the assembly that is currently writing Egypt’s new constitution. The 100-member assembly drawing up the constitution has been disbanded already by the courts once before and has had its deadline extended by two months under the decree. There is fear that the real agenda of the assembly, currently dominated by Islamist, is to increase the Islamist influence within the constitution. The new constitution will be put to a referendum before coming into force.
At least three senior advisors to Mr Mursi have resigned over the new measures and street protesting escalated over last weekend in Cairo. Judges have threatened a national strike in response to the proposed measures. The move is seen by critics as a step towards an autocratic Egypt to increase Mr Mursi’s power rather than protecting the revolution.
Mr Mursi is a former leader of the Muslim Brotherhood and was elected to Presidency after Hosni Mubarak was ousted from Egypt. Mr Mursi’s current justice minister is seeking to find a half-way solution to scale back the decree through discussions with the Supreme Council of the Judiciary, the highest council overseeing Egyptian courts.
Egyptian media reported on Monday that Mr Mursi has agreed to restrict the scope of the decree so as to enable judicial review of his edicts, but that the assembly would be still protected from such review. Major demonstrations which had been called for in Cairo on Tuesday have been cancelled due to fears over extensive clashes.
November 25th, 2012 by Julien Maton
Date: 4th December 2012, 5.00pm – 7.00pm
Venue: The Hague Institute for Global Justice, Sophialaan 10, 2514 JR The Hague
The Amsterdam Center for International Law (ACIL) together with The Hague Institute for Global Justice organize a book launch to mark the publication of:
‘How Interpretation Makes International Law. On Semantic Change and Normative Twists’
by Dr Ingo Venzke, Senior Researcher and Lecturer, ACIL, University of Amsterdam.
The book was recently published by Oxford University Press.
A brief introduction into the book by the author and by Professor André Nollkaemper, Professor of Public International Law, will be followed by comments, and discussion.
Commentators will be Judge Fausto Pocar (International Criminal Tribunal for the Former Yugoslavia) and Dr. Christina Hoss (Registry, International Court of Justice).
If you wish to register, click here.
November 25th, 2012 by Julien Maton
The Third Committee of the UN General Assembly addresses questions related to social, humanitarian affairs and human rights issues that affect people all over the world.
Last Tuesday, the Third Committee of the UN General Assembly approved the draft Resolution on Extrajudicial, Summary, and Arbitrary Executions. The main aspect of this resolution is that it mentions for the first time gender identity as a characteristic warranting protection from unlawful executions.
This resolution comes up for a vote in the Committee every two years. Language to protect individuals on the basis of “sexual orientation” has been included for the past 12 years, but this year marked the first time the resolution has mentioned “gender identity.”
The Resolution was passed by a vote of 108 to 1, with 65 abstentions and 18 absences.
The United States chose to abstain. U.S. Ambassador Elizabeth Cousens gave an interesting explanation as to such vote. After saying that the U.S. agreed that all States should take effective action to combat all extrajudicial killings and punish the perpetrators, she stated that the resolution obscures that there are not one, but two complementary bodies of law that regulate unlawful killings of individuals by governments – international human rights law and international humanitarian law.
The Ambassador added that the applicable rules on extrajudicial killing in international armed conflict are primarily found in international humanitarian law. For the U.S. Representative, the resolution as worded contributes to legal uncertainty about how these two important bodies of law apply to an array of factual circumstances.
November 22nd, 2012 by Raphaelle Rafin
The Committee against Torture has adopted on 19 November 2012 its General Comment no. 3 on the application of Article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Article 14 of the CAT provides victims the rights to redress and to compensation: it is the first time a United Nations Human Rights treaty body issues an authoritative interpretative of an issue which remains largely indefinite in international law. General Comment no. 3 is of significant importance since it provides a source of reference for victims seeking redress. Indeed, general comments have been integrated to the work of regional human rights institutions and international criminal tribunals, and they have had a real influence in domestic courts. Continue reading ‘CAT General Comment on Victims’ Right to Redress’
November 22nd, 2012 by Julien Maton
The International Criminal Court (ICC) has issued an arrest warrant for Ivory Coast’s former first lady Simone Gbagbo for alleged crimes against humanity committed during the West African nation’s post-election crisis last year.
The court announced Thursday it had unsealed an arrest warrant issued Feb. 29 for the first woman indicted by the first permanent, treaty-based, international criminal court.
Her husband, Laurent Gbagbo, is already in custody in The Hague facing similar charges stemming from his fight to retain power after losing a 2010 presidential election.
November 21st, 2012 by Ellie Geranmayeh
The Iraqi Independent High Commission for Human Rights (the “Commission”) intends to create a special court by 2013 with jurisdiction over human rights complaints and abuses in Iraq. The Commission already has powers under its mandate (pursuant to Iraqi Law No. 53 of 2008) to track human rights breaches and refer them for prosecution. The new court was approved by the Supreme Judicial Council of Iraq in order to ensure expedient accountability over the array of human rights cases in the country.
In describing the mechanics of the new tribunal, a member of the Commission stated that the “Commission offices in all Iraqi provinces will monitor instances of human rights violations, receive complaints from injured parties, prepare [these issues] as legal cases and submit them to the court so it can investigate them and take the required legal steps”.
The Commission aims to strengthen the political and social culture within Iraq through a reaffirmation of Iraq’s commitment to international human rights. The Commission will compliment the work of the new tribunal through co-ordinating investigations and reporting on human rights abuses inIraq.
November 20th, 2012 by Ellie Geranmayeh
Credit: BBC News
On 19 November 2012, a Danish court upheld the decision of Denmark’s Government to extradite Emmanuel Mbarushimana, a Rwandan national suspected of partaking in the 1994 genocide against the Tutsi group in Rwanda.
Mbarushimana has been in Denmark for the last 12 years after leaving Rwanda where he was a school inspector. An immediate appeal has been lodged against the decision of the court in Roskilde. Mbarushimana asserts that he will not receive a fair trial in Rwanda and could be subjected to torture and persecution if extradited.
Previously, the Supreme Court of Denmark had ruled that the Danish courts could try Mbarushimana for his alleged role in the 1994 genocide. This was a result of a legal battle related to the retroactive application of the Danish law on the crime of genocide, which had come into force after the 1994 genocide. However, the Danish Ministry of Justice revoked this decision, and the Danish government has since sought Mbarushimana’s extradition in conjunctions with a murder trial against him.
The appeal is likely to be heard by March 2013. Mbarushimana’s murder trial has been postponed till June 2013 pending the outcome of his extradition case.
November 19th, 2012 by Raphaelle Rafin
Yesterday, leaders of the Member States of the Association of Southeast Asian Nations (ASEAN) adopted the ASEAN Human Rights Declaration (AHRD) on the occasion of the 21st ASEAN Summit in Phnom Penh, Cambodia.
Signing ceremony of the statement on the adoption of the ASEAN Human Rights Declaration (c)AFP
The civil society and United Nations officials had previously expressed concerns regarding the drafting process and the lack of publicity of the works of the drafting committee. The AHRD was finally made public on Sunday evening, following its formal adoption. Despite the last-minute addition of a paragraph requiring members to enforce the declaration with a level of commitment accorded to the Universal Declaration of Human Rights, the AHRD fails to meet international standards. Indeed, the drafting committee disregarded the recommendations formulated by the Coordination Committee of the Special Procedures of the Human Rights Council and maintained provisions limiting human rights to national law and seeking to “balance” rights with individual duties.
The declaration has been rejected by a common statement of fifty-seven civil society organizations stating that the declaration falls far below international standards. The statement denounces provisions which could serve to provide “ready-made justifications for human rights violations of people within the jurisdiction of ASEAN governments” and the absence of several rights, including the right to freedom of association and the right to be free from enforced disappearance.
The UN High Commissioner for Human Rights Navi Pillay expressed similar concerns and hopes for improvement: “Other regions have shown how regional human rights systems can evolve and improve over time, and I am confident this will be the same for ASEAN”, Mrs. Pillay said. “Looking ahead, it is essential that ASEAN ensures that any language inconsistent with international human rights standards does not become a part of any binding regional human rights convention.”
November 18th, 2012 by Dina Mahmoud
- source: http://truthaholics.wordpress.com/
The Palestinian News & Information agency has announced that the Arab League has demanded the provision of international protection for the Palestinian people, their leaders, land, and destiny; holding the international community fully responsible for the maintenance of international peace and security.
At the Council of the Arab League’s extraordinary session at the ministerial level concerning “the brutal Israeli aggression on the Gaza strip and its implications”, which took place yesterday, the Secretariat of the Arab League confirmed that Israel’s monstrous aggression on the Gaza strip, which has recently increased in an unprecedented fashion, comes in light of the international community’s continued silence on Israel’s persistent aggression towards the Palestinian people, which Israel has taken as a green light to continue its aggressive political, military, and economic policies towards the Palestinian people in the occupied Palestinian lands.
At a meeting of the foreign ministers of the Arab States, which also took place yesterday at the Arab League headquarters in Cairo at the request of the Egyptian president Mohammed Mursi, the Arab League emphasised the necessity of providing international protection to the Palestinian people, their leaders, land, and destiny. It further emphasised that the international community bears the full responsibility of maintaining international peace and security. Continue reading ‘The Arab League demands international protection for the Palestinian people’
November 16th, 2012 by Raphaelle Rafin
On 11 November 2012, opponents of Syrian President Bashar al-Assad signed an agreement in Doha to establish a national coalition aimed at uniting the various factions seeking to overthrow al-Assad. The Syrian National Coalition for Opposition and Revolutionary Forces (Syrian National Coalition) is headed by Mouaz al-Khatib and includes the Syrian National Council, the previously dominant opposition umbrella group. The unity accord states that the Syrian National Coalition “supports the unification of the revolutionary military councils under the leadership of a supreme military council,” will establish a “national judicial commission,” and will “form a provincial government after gaining international recognition.”
Members of the new Syrian National Coalition in Doha, Qatar on November 11, 2012. © 2012 Reuters
First official recognitions came quickly from the Arab League and states of the Gulf Co-operation Council. On Tuesday, France became the first Western State to recognize the newly formed Syrian National Coalition as the sole legitimate representative of the Syrian people. Following a meeting with Mouaz al-Khatib, William Hague today announced that Britain was prepared to formally recognize the coalition. The United States have simply declared support for the coalition.
The creation of the Syrian National Coalition has already (re)opened international negotiations. Continue reading ‘New Syrian National Coalition: International Recognition, Arms Delivery and Human Rights’
November 16th, 2012 by Julien Maton
Mladen Markač and Ante Gotovina
Today, the Appeals Chamber of the International Tribunal for the Former Yugoslavia has acquitted Ante Gotovina and Mladen Markač.
The Croatian Generals were accused of war crimes and crimes against humanity.
On 15 April 2011, Trial Chamber I found Mr. Gotovina and Mr. Markač guilty for their roles in a 1995 military offensive to drive Serbian rebels out of Krajina, a Croatian region bordering Bosnia-Herzegovina.
Mr. Gotovina was sentenced to 24 years of imprisonment, and Mr. Markač was sentenced to 18 years of imprisonment.
Ilawyers Guénaël Mettraux and John Jones were respectively Counsel for Ante Gotovina and Mladen Markač.
November 15th, 2012 by Ellie Geranmayeh
Photograph: Staff/Reuters/Corbis
The legal charity Reprieve received a double-edged reply to its arguments before the UK Supreme Court in defence of Yunus Rahmatullah on 31 October 2012. Reprieve sought the remedy of habeas corpus and submitted that the Pakistani national, who had been capture by UK forces and remains in US custody, should be returned to the UK. While the Supreme Court upheld the historic remedy enshrined in habeas corpus, it concurred with the UK Government that it had, practically, little power to enforce this remedy against the US to ensure Rahmatullah’s return.
In 2004, UK forces captured Rahmatullah in Iraq on suspicion that he had links to al-Qaeda. He was later handed over to US forces at the Afghani airbase in Bagram, under the authorisation of the then-Secretary of State for Defence John Hutton. Rahmatullah remains in US custody without charge to date.
Continue reading ‘Rahmatullah: The UK Supreme Court’s Ruling On Habeas Corpus’
November 12th, 2012 by Raphaelle Rafin
In an interview to al-Arabiya TV last week, British Prime Minister David Cameron said a safe exit for President Bashar al-Assad “could be arranged” if it would end Syria’s increasingly bloody conflict.
British Prime Minister David Cameron tells Al Arabiya’s Rima Maktabi he fears the violence may prolong and may bring instability to the region. (Al Arabiya)
David Cameron said the international community should consider anything “to get that man out of the country” and that he “would favour [Bashar al-Assad] facing the full force of international law and justice”. “I am certainly not offering him an exit plan to Britain but if he wants to leave he could leave, that could be arranged,” he added.
According to al-Arabiya, a spokesman for Cameron suggested separately that an immunity deal could – reluctantly – be put on the table. “Clearly we would like Assad to face justice for what he has done, but our priority, given the situation in that country, has to be an end to violence and a transition. And that cannot take place while Assad remains in place,” the spokesman said.
Amnesty International UK responded to reported comments from David Cameron saying that Mr. Assad and others were only likely to leave Syria if they were offered immunity. Amnesty International UK Syria campaign manager Kristyan Benedict added: “Instead of talking about immunity deals for President Assad, David Cameron should be supporting efforts to ensure that he faces justice, ideally at the International Criminal Court at The Hague. After Syrian government forces have indulged in a massive campaign of indiscriminate bombings, mass round-ups and torture, there should be no question of Bashar al-Assad escaping justice with a cosy deal of this kind.”
Since March 2011, the estimated numbers of casualties are 25,000 dead, 250,000 wounded and more than 200,000 refugees. Recently, a report of the Human Rights Council-mandated Independent International Commission of Inquiry on Syria documented an increase in the number of abuses being committed by rebel forces, in addition to continued abuses at the hands of government forces.
November 12th, 2012 by Ellie Geranmayeh
Abu Qatada today won his appeal under Article 6 of the European Convention on Human Rights at the UK Special Immigration Appeals Commission (SIAC) and has been released on bail from prison subject to curfew and tagging conditions. Mr Justice Mitting upheld his appeal and accepted that he would not receive a fair trial in Jordan, where he is alleged to have plotted bomb attacks. The ruling is contrary to the decision of the European Court of Human Rights which had assessed that Abu Qatada would not face ill-treatment and would benefit from due process in Jordan.
Omar Othman, a.k.a. Abu Qatada (AFP)
The Judge noted that even if the Court was persuaded that Abu Qatada would face an impartial court in Jordan, given the extent of time passed since the allegation of torture, it was “too late and too difficult” for someone in Abu Qatada’s shoes to discharge the burden of proof that evidence used against him was obtained by torture.
The British government intends to appeal against the ruling and has been assured by Jordan that evidence obtained through torture would not be used against Abu Qatada. The Home Office stated “today’s ruling found that the Jordanian judiciary, like their executive counterparts, are determined to ensure that the appellant will receive, and be seen to receive, a fair retrial”.
November 11th, 2012 by Julien Maton
The European Court of Human Rights
ECHR: Djokaba Lambi Longa against the Netherlands
Whilst there might be little side-roads between the two judicial cites, the European Court of Human Rights has certainly built large jurisdictional stumbling blocks.
The Djokaba Lambi Longa Decision is part of what may be characterized as the great jurisdictional reluctance of the Strasbourg Court to look into the activities of its Hague cousins.
Facts: On 9 October 2012, the European Court of Human Rights (ECHR) dismissed the application of Bède Djokaba Lambi Longa, who was transferred in 2011 from the Democratic Republic of Congo (DRC) to The Netherlands to testify as a witness for the defence of Thomas Lubanga at the International Criminal Court (ICC). Longa and three other witnesses who were also transferred and detained in Holland claimed asylum in The Netherlands after giving testimony that implicated President Kabila of the DRC.
Longa’s application to the European Court of Human Rights complained of unlawful detention as his detention in the DRC expired in July 2007. He argued that the ICC had no legal basis to sustain his detention past his April 2011 testimony.
The ICC Trial Chamber in Lubanga acknowledged that it did not have a legal reason to continue Longa’s detention but stated that it couldn’t send Longa back to the DRC while his asylum application in The Netherlands was pending.
The witness argued that regardless of who had authority over his detention, the Netherlands still had an obligation to protect his human rights. He claimed that the level of human rights protections guaranteed by the ICC was insufficient.
The Court found that because he was detained by the ICC, an international organization, his presence in Holland did not make him the responsibility of the Dutch Government. Therefore, the Court found that the legal agreement between the ICC and the DRC which brought Longa to Holland was a sufficient basis to continue his detention.
November 10th, 2012 by Raphaelle Rafin
The War Crimes Research Office (WCRO) recently issued its sixteenth report on the International Criminal Court (ICC) as part of the initiative launched in 2007, the ICC Legal Analysis and Education Project, aimed at producing public, impartial, legal analyses of critical issues raised by the Court’s early decisions. The Report examines the Investigative Management, Strategies, and Techniques of the International Criminal Court’s Office of the Prosecutor.
At the occasion of the ten-year anniversary of the entry into force of the Rome Statute and of the departure of the Court’s inaugural Chief Prosecutor, Luis Moreno-Ocampo, the report examines some of the potentially problematic aspects of the Office of the Prosecutor’s (OTP) investigative practices that have been identified by the judges of the Court and outside observers to date. Recognizing the challenges of conducting international criminal investigations and the substantial successes achieved by the OTP in a short period of time, the aim of the report is to explore some of those issues and offer recommendations that could contribute to improving the OTP’s investigative practices, thereby helping to build a stronger Office of the Prosecutor and enhancing the Court’s capacity to administer justice more effectively.
“At the time of this writing, just over ten years after the Rome Statute governing the ICC entered into force, the Court had issued warrants of arrest or summonses to appear against twenty-nine individuals. To date, fourteen of these individuals have appeared before the Court for purposes of participating in a hearing before a Pre-Trial Chamber to determine whether the Prosecution’s charges should be confirmed and the case should be sent to trial. While the Pre-Trial Chambers have confirmed charges against the majority of individuals appearing before them thus far, they have declined to confirm the charges against four suspects, meaning that the Prosecution has failed to establish that there are ‘substantial grounds to believe’ the charges against nearly one-third of its suspects. Furthermore, even in those cases that do survive the confirmation hearing and proceed to trial, charges have occasionally been dropped by the Pre-Trial Chamber due to an insufficiency of evidence. Finally, the first case to actually go to trial before the Court involved limited charges that were widely perceived as not fully reflecting the criminal conduct of the accused, and the Trial Chamber, in its judgment, determined that the evidence provided by a number of Prosecution witnesses could not safely be relied on due to questionable practices employed by intermediaries working with the Office of the Prosecutor (OTP).” [Executive Summary, extract]
For a hard copy of the report or more information, contact the War Crimes Research Office at warcrimes@wcl.american.edu, or +1 (202) 274-4067.
The reports are also available online here.
November 9th, 2012 by Raphaelle Rafin
Foreign Ministers of the Association of Southeast Asian Nations (ASEAN) are expected to adopt the ASEAN Human Rights Declaration (AHRD) later this month. The draft document will be submitted for consideration at the 21st ASEAN Summit in Phnom Penh, Cambodia, from 18 to 20 November 2012.
Heads of Delegations at the 9th meeting ASEAN Intergovernmental Commission on Human Rights (AICHR) on the ASEAN Human Rights Declaration – Manila, Philippines – 13-14 September 2012
The AHRD will be the first-ever regional human rights instrument to be adopted by Asian States, although a Human Rights body already exists in the region. Established in 2009, the ASEAN Intergovernmental Commission on Human Rights (AICHR) is an inter-governmental consultative body comprising representatives of the ASEAN 10 Member States. Its objectives are to promote and protect human rights and regional cooperation on human rights. The AICHR was also tasked with drafting the ASEAN Human Rights Declaration. Drafters of the AHRD –ten representatives of the ten ASEAN member States- first met on 1 July 2011 and submitted a draft to the AICHR by December 2011. The AICHR presented the draft AHRD to the 45th ASEAN Ministerial Meeting in August 2012.
While the AHRD has not yet been adopted, it has been criticized throughout its preparation. Voices were raised against the secrecy of the drafting process. Civil society organizations, networks and non-governmental organizations from Southeast Asia and from the world have especially called for the AHRD draft to be publicized so that the public could meaningfully participate to the drafting process and provide targeted input. Civil society organizations have also reported that there has not been any substantive and broad-based regional consultation with the peoples in the region on the draft AHRD and called on AICHR to conduct national consultations.
The lack of transparency of the process has prevented an analysis on the substance of the declaration, but Human Rights activists have already shared concerns that the AHRD could undermine international standards and that it would actually diminish human rights in the region. It is feared that several key principles in the draft were diluted, including workers’ bargaining power, and the rights of indigenous peoples, ethnic minorities, lesbian-gay-bisexual-transexual (LGBT) persons and people deprived of liberty, and that the declaration would only enable the ASEAN Intergovernmental Commission on Human Rights (AICHR) to ask for information on human rights conditions from members.
The UN High Commissioner for Human Rights Navi Pillay supported the call of the civil society and urged ASEAN leaders to take more time to develop an Asian regional Human Rights Declaration. Mrs. Pillay welcomed the inclusion of many fundamental rights in the AHRD, but she noted blanket restrictions that are not part of international human rights law. “I urge the governments of the region to take the necessary time to develop a Declaration that fully conforms with international human rights standards and is framed with the participation of all key stakeholders,” the High Commissioner said.
November 8th, 2012 by Anna Bonini
On Monday, at a press conference at Doughty Street Chambers in London, Eugenia Tymoshenko reiterated her appeal for justice for her mother Yulia.
Eugenia Tymoshenko with her mother's lawyers, barristers Geoffrey Robertson QC and Amal Alamuddin of Doughty Street Chambers, on 24 October 2012
Yulia Tymoshenko — the former Prime Minister of Ukraine and leader of the Orange Revolution — has been in detention since 11 October 2011, when a Ukrainian court sentenced her to seven years in prison on charges of “abuse of office” for approving a 2009 gas deal with the Russian supplier Gazprom.
During the conference, Eugenia described the ill-treatment that her mother is routinely subjected to in prison. Ms Tymoshenko said her mother was watched and video-taped 24hrs a day in her prison hospital and even in the bathroom and that the regime “grotesquely invaded her privacy by uploading [the] film of her hospital treatment to the internet”. Geoffrey Robertson QC and iLawyer Amal Alamuddin, Yulia Tymoshenko’s lawyers, explained how the former Prime Minister had been convicted on vague charges by judges who lacked independence and presided over an unfair trial.
Geoffrey Robertson QC explained that the legal team was finalising an appeal to the European Court of Human Rights raising the violations of Mrs Tymoshenko’s human rights that arise from the trial process. This supplements the case currently before the European Court. According to Mr Robertson, a decision in her favour by the Strasbourg-based court would force Ukraine to release her, or else Ukraine may be suspended from membership of the Council of Europe.
Yulia Tymoshenko with her daughter Eugenia and her husband Alexander
The press conference in London came a week after parliamentary elections in Ukraine were denounced as unfair by international monitors and two weeks after Ukraine’s human rights record was reviewed at the UN Human Rights Council in Geneva on 24 October. At a press conference organised in Geneva that day, Ms Alamuddin thanked the states – including the US, UK and Australia – that have had the courage to speak out about injustice in Ukraine, including Mrs Tymoshenko’s case, but stated that “more needs to be done” to make sure that Ms Tymoshenko was freed.
