Human Rights after Human Rights (Conference)

This conference will explore themes and perspectives that have emerged after and as a reaction to the increasing number of human rights critiques in the recent years. Some of these have been of such a fundamental nature that they have left not few researchers in the field with a nagging doubt about human rights and their status as an ideological project and a so-called ‘last utopia’. Still, human rights continue to play a significant role both in high-level politics and, even more importantly, in grassroots initiatives, becoming in fact the dominant vocabulary for expressing and challenging injustices. This two day event provides an opportunity to confront the challenges that result from the ambivalence of human rights.

For more information and practicalities, see this flyer.

Conference on ‘Urgency and Human Rights’

The Department of International and European Law of the Law Faculty of the Radboud University Nijmegen, Netherlands in cooperation with the Seconda Università di Napoli, Dipartimento di Giurisprudenza, Italy and Ghent Human Rights Centre, Belgium will host a two-day conference on ‘Urgency and Human Rights’ planned for Friday 29 and Saturday 30 May 2015, in Nijmegen, the Netherlands.

This conference firstly aims to bring together existing scholarship regarding urgency and human rights and discuss the evolving practices in this respect with practitioners.

Secondly, its objective is to allow for in-depth discussion of what should be the role of the domestic judiciary when dealing with urgent cases.

For the Call for Papers and the Concept Paper for the conference see: www.ru.nl/law/urgencyandhumanrights.

Thessaloniki Summer Courses on International Law and Human Rights

The Kalliopi Koufa Foundation on the Promotion of International Law and Human Rights organizes the inaugural session of the Thessaloniki Summer Courses on International Law and Human Rights from 1 to 10 July 2015 in Thessaloniki, Greece, on the topic of “International Aspects and Issues of Energy Law”. The Thessaloniki Summer Courses are open to students, especially LLM students and PhD candidates, researchers and practitioners from all over the world.
The 2015 course will introduce the subject of international energy law and examine its links and interaction with various relevant fields of international law, such as environmental law, investment law and arbitration, trade law, law of the sea etc. The session will consist of 10-day intensive, introductory and specialized, courses on the topic as well as lectures, roundtables and discussions involving academics, experts and practitioners.
The Faculty of the 2015 session includes, among others: Catherine Redgwell (University of Oxford), August Reinisch (University of Vienna), Andreas Ziegler (University of Lausanne), Andrea Bjorklund (McGill University), Anastasia Strati (Greek MFA and European Commission), Danae Azaria (University College London).
For more information including registration and the provisional programme, please click here.

Dear readers of the blog,

At the request of UNIS Geneva, please find in this letter some information on the next Graduate Study Programme which is now planned for 6 to 17 July 2015. Please note that the deadline for applications is 27 February 2015. If you have any questions on this programme, please contact: cmomal-vanian@unog.ch.

Best,

Otto

Uitnodiging Film en Debat van Movies that Matter Den Haag

Uitnodiging Film en Debat
Movies that Matter Den Haag

Locatie: Filmhuis Den Haag (Spui 191)
Datum: Zondag 11 januari 2015
Aanvang: 14.00 uur
Toegang: 8,50 euro*
Reserveren: (070) 365 60 30
www.filmhuisdenhaag.nl

Op zondag 11 januari a.s. is de screening door Movies that Matter on Tour van de speelfilm Siddharth (2013) van regisseur Richie Mehta in het Filmhuis Den Haag.

De arme ritsenmaker Mahendra woont met zijn gezin in een provinciestadje in India. Hij komt nauwelijks rond en stuurt zijn twaalf jaar oude zoon Siddharth naar New Delhi voor een tijdelijke baan in een fabriek. Wanneer de jongen na enkele maanden niet naar huis komt, begint Mahendra zich ernstige zorgen te maken. Van lokale autoriteiten verneemt hij dat zijn zoon mogelijk slachtoffer is geworden van mensenhandel. Hij start de zoektocht naar zijn Siddharth: een haast onmogelijke missie in een land met 1,2 miljard inwoners. Prachtig verteld verhaal, gebaseerd op een werkelijke ontmoeting met ouders van in India vermiste kinderen.

Na de film wordt een toelichting gegeven door Luuk Esser. Hij is als onderzoeker werkzaam bij de Nationaal Rapporteur Mensenhandel en ook als promovendus bij het Instituut voor Strafrecht en Criminologie van de Universiteit Leiden.

Speelfilm, 96 min.
Gesproken taal: Hindi, Engels ondertiteld

An ICC Trial Chamber brings the Kenyatta case closer to an end

By Dov Jacobs [Cross posted on Spreading the Jam

On 3 December 2014, a Trial Chamber at the International Criminal Court (ICC) issued two decisions in the case against President Kenyatta of Kenya. Together, these decisions bring the case yet closer to a close, even before the trial even started. As you might know, a few weeks ago, the Trial Chamber held two status conferences at which was discussed the question of Kenya’s alleged lack of cooperation with the Prosecutor’s investigation, the OTP request for another adjournment of the trial and the Defense’s corresponding request for a termination of the proceedings.

Today’s decisions when read together can only be read as an unmitigated disaster for the Office of the Prosecutor (OTP). In the cooperation decision, the Trial Chamber, while recognizing some elements of bad will on the part of Kenya, ultimately considers that it would be inappropriate to make a finding of non-compliance because ultimately “while cooperation by State Parties is crucial for the functioning of the Court, the primary responsibility for investigation lies with the Prosecution” (§85). In light of this, the Chamber considered that the OTP did not do all it could to follow through on its own request for cooperation. As noted by the judges (§88):

The Chamber considers that the approach adopted by the Prosecution to the cooperation was, in some respects, not reflective of a prosecutorial and investigative body effectively seeking to obtain the requested materials. If the primary objective of pursuing the cooperation request at this time was to actually obtain the requested materials, the Chamber would have expected to see a greater degree of diligence, persistence and, where necessary, flexibility on the part of the Prosecution. The Chamber does not accept that the Prosecution has no independent means of taking such an approach. It ought to be pursued both throughout the course of the cooperation and when ultimately seeking to persuade the Chamber that a finding under Article 87(7) of the Statute is warranted. In summary, considering the overall interests of justice and integrity of the proceedings, the Chamber does not consider that the requisite burden has been met.

This is a extraordinary indictment of the OTP’s perceived lack of diligence in the conduct of the investigation and follow-up of the cooperation request and justifies the finding that a finding of non-compliance is not warranted at this stage and that in any case “referral [of a state to the ASP] for the purpose of sanction should not be seen as a compensating for any deficiency on the part of the Part of the Prosecution in fully investigating and prosecuting the crimes under the jurisdiction of the Court” (§84).

The decision not to grant the adjournment follows the same logic. Essentially, the Chamber blames the OTP for the case falling apart (§52):

More generally, the Chamber also recalls its findings regarding the failure on the part of the Prosecution to take appropriate steps to verify the credibility and reliability of evidence on which it intended to rely at trial, being, in the Chamber’s view, the ‘direct reason’ for the Prosecution’s evidence falling below the required standard at such a late stage.

Given these circumstances, it would be unfair to the defendant to prolong the process any longer. In coming to this conclusion, the Chamber rightly rejects a number of points made by the OTP, and which I had criticized a few weeks ago when live tweeting the status conference.

For one, the Chamber considers that allegations that Mr. Kenyatta is responsible for the lack of cooperation of Kenya cannot be accepted without actual substantiation and that the proper route to address this would in any case be Article 70 of the Statute on offenses against the administration of justice (§53).

Second of all, the judges do not follow the OTP’s claim that the adjournment should be pronounced in order to send a message to States that they cannot frustrate the proper exercise of the function of the court by not cooperating. In my view, they do not reject this assertion strongly enough. They seem to accept the OTP’s point on principle, but say that it needs to be balanced with the rights of the accused (§44). For me, these issues are entirely unrelated. As the Chamber said in both decisions, the burden for building a good case rests on the OTP, not States and the existence of such a case should be the only relevant factor in proceeding to trial. The non-cooperation of a State, while a problem, should not be used to prejudice the defendant. If the drafters of the Rome Statute decided not to grant the Court with stronger powers against States, this is not the defendant’s fault.

Third of all, the judges courageously, given the sensitive dimension of the question, to let the “interests of victims” affect their decision. They note that:

in the context of criminal proceedings, the interests of victims must be balanced with other interests of justice. While the victims’ legitimate interests include seeing those responsible for the crimes committed being held accountable, the Chamber does not consider that, in light of the presumption of innocence, it would be in the interests of justice, or the interests of the victims, for the current proceedings to be continued on the speculative basis which has been presented.

Again on this point, I would have possibly framed this slightly differently. Indeed, the victims have “interests” while the defendant has actual “rights” that are at the heart of the fairness of the proceedings. The balancing test can therefore not be balanced, if I can express it it this way. But given the current practice of the Court in relation to victims, the Chamber can only be lauded for putting the rights of the defense first.

Finally, it should be noted that the Chamber did not follow the Defense’s clever , but unrealistic, invitation to enter a verdict of acquittal, which would conveniently triggered the ne bis in idem principle. Rather, the Chamber chooses to respect the last shred of discretion left to the Prosecutor at this stage: either show that there is enough evidence or drop the charges. This reminds me a little bit of the mafia boss who gets to the insider witness who was going to testify against him, leaves a loaded gun on the table and tells him: “you know what is the decent thing to do” before leaving the room…

Overall, in the circumstances, based on the OTP’s concession that its case is just not good enough to go to trial, one can only agree with the Trial Chamber’s decision.

What is the effect of this decision? it is obviously a huge success for Mr. Kenyatta who is likely to remain a free man and won the fight even before entering the ring.

From the Court’ perspective, things are a little ambiguous. On the one hand, the judges (and to some extent the OTP) took their responsibilities seriously in not proceeding to trial without a case. In a way, and rather counter-intuitively for some I’m sure, this actually proves that the system works. On the other hand, this is one more massive blow to the practices of the OTP in terms of investigations, the same week that Judge Usacka leveled the same criticism in a dissenting opinion in the Lubanga Appeals Judgment, and after difficulties faced in both the Katanga and Gbagbo cases. The OTP has been very vocal in the past few years about changing its investigative practices. Even accepting the genuineness of these claims, it is time for actual results to be seen in that respect.

For the Court generally, this case illustrates the difficulties of investigation senior political figures in power and raises doubts about the general efficiency of the process. Seven years after the post-electoral violence in Kenya that triggered these proceedings one cannot help but note the irony of the ICC telling Kenya, at the time, that it had not moved fast enough in prosecuting those responsible. If the Court is going to present itself as the judge of the adequacy of domestic measures to fight impunity, it should start setting the right example.

A Molotov Cocktail on the Principle of Legality: STL confirms contempt proceedings against legal persons

By Dov Jacobs [cross posted on Spreading the Jam]

In January 2014, a contempt judge of the Special Tribunal for Lebanon (STL) confirmed an indictment for contempt proceedings which included a legal person, a first for an international criminal tribunal. At the time, I raised some doubts about the reasoning of the judge, who applied a teleological reasoning that essentially allowed him to create law based on his own interpretative preferences. I also did not find convincing the idea that the interpretation of the term “person” for the purposes of contempt proceedings could be different than the interpretation of the same term in article 2 of the Statute of the Tribunal when it came to personal jurisdiction of the tribunal generally.

In July 2014, another contempt judge reversed the first ruling, considering that the term person should be interpreted narrowly in light of the principle of legality and could not include legal persons.

Last week, an Appeals Panel of the STL reversed this latter decision, held, by majority, that legal entities could be covered by contempt proceedings and, as a consequence, reinstated the proceedings against a media company. This decision is very interesting, and problematic, in the way it approaches the question of both inherent jurisdiction and general rules of interpretation and has just entered my top 10 worst argued decisions in ICL. It might even enter my top 3, along with the SCSL amnesty decision and the ICC Malawi decision on immunities.

It would take up too much space here to comment on the decision extensively, but I just want to highlight how the Appeals Panel has found the perfect Molotov cocktail to kill the principle of legality: the “spirit” of the statute combined with inherent jurisdiction.

  • The Spirit of the Statute

First of all, the decision seriously over-relies on what is called the “spirit” of the Statute as a source of interpretation, which, according to the judges, allows for a more “liberal” interpretation of the Rules (para. 27). This leads the judges to blame the contempt judge for interpreting the term “person” in accordance with the letter of the Statute rather than its spirit (!!!). The problem with that is that I don’t know what the “spirit” of the statute is. Trusting judges in relation to this spirit is like trusting the weird looking guy in the tent at the town fair that he can contact the spirit of your grandmother: he basically gets to tell you what he wants…

For the judges of the Appeals Panel, the spirit of the statute, in a nutshell, is the “fight against impunity” for those who obstruct the course of justice, which allows for a teleological interpretation that  includes legal entities. Once they have decided this, the judges look for anything under international law that would not allow them to interpret person in that way… At this point, it’s not even teleological interpretation anymore, it’s backwards reasoning in its purest form!

The Appeals Chamber makes an incredibly broad assessment of international and domestic pronouncements on corporate liability (in general, not necessarily for contempt!) to conclude that nothing prevents the judges from interpreting “person” in a broad way (para. 60).

Even  more amazing, the STL goes through the whole history of ICL where no legal entity was ever prosecuted for contempt or otherwise, but finds it unpersuasive, concluding that section with the extraordinary vague statement that “corporate criminal liability is on the verge of attaining, at the very least, the status of a general principle of law applicable under international law” (para. 67).

“On the verge of attaining”? What a marvelous new source of law. Following the progressive view of the Appeals Panel, I suggest that Article 38(1) of the ICJ Statute now read as follows:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

[...]

e. Any norm on the verge of attaining the formal status of any of the above

  • The inherent jurisdiction of the Court

Inherent jurisdiction has always been a problematic issue, useful for creative judges over the years. But surely there has to be a limit to it. The problem is that the way the Appeals Panel uses it makes it extraordinarily large. There are a number of pronouncements in the decision on the (lack of) scope of the inherent jurisdiction of the tribunal, but this one wins the prize for honesty:

When operating within the realm of our inherent power, our jurisdiction remains undefined, only to be determined upon the crystallization of circumstances that call for a judicial pronouncement

In other words, we don’t know what our jurisdiction is, you don’t know what our jurisdiction is, but don’t worry and trust us: we’ll tell you when we get there. This cannot be how jurisdiction (inherent or otherwise) should work, especially in the current case of contempt (i.e, criminal) proceedings.

  • The end of the principle of legality

The problem with everything I have described so far is that we are here dealing with criminal charges, not a innocuous rule of procedure relating to the extension of the number of pages in a brief. Inherent jurisdiction cannot be used to trump the principles that should apply in criminal law matters, notably the principle of legality and its corresponding rules of interpretation: strict interpretation and in dubio pro reo. In that respect, someone should have pointed the judges to Article 22 of the Rome Statute.

In light of this, as pointed out by the dissenting judge, both human rights law and general principles of ICL should have led the judges to consider these basic principles in interpreting the term “person” in the RPE.

  • Some concluding thoughts

First, a logical point: as I pointed out in my previous post on this, for me the interpretation of term “person” in the RPE should necessarily mirror the interpretation of the term “person” in the Statute. If the STL cannot prosecute legal entities for killing Hariri, it cannot prosecute them for contempt. If not, as I said in my previous post and as picked up by the dissenting judge (who forgot to quote me…), the “spirit” of the statute would be that legal entities should not commit the horrendous and humanity-offending crime of publishing a list of witness, but can commit murder, bodily harm and terrorism without being bothered…

Second, a legal reasoning point: as with the first contempt judge who accepted the indictment for legal persons, the Appeals Panel essentially give us reasons why corporate entities ought to be held responsible for contempt. These might be valid reasons, but it’s not their job.

Third,  an argumentation point: the judges refer in an amazingly broad way to the evil that corporate entities can wrought upon the world. And this is just to extend contempt jurisdiction! It seems like overkill to me. What will the first international judge to prosecute a company for genocide be able to say?

Fourth, and finally, an endless point of frustration: the drafters of the STL Statute, in their infinite (lack of) wisdom, still thought it was a good idea to let judges write their own RPE. As a result, the RPE are written by the judges, can be changed by the judges as they please, and then get interpreted by the judges. In this context, it is somewhat farcical to see them pretend to find the higher “spirit” of the Statute, fill 30 pages of analysis of domestic legislation and international pronouncements on the responsibility of legal entities and provide general moral musings on corporate liability in order to divine the true meaning of the word “person”. But, judges wrote the RPE! Adding up pages of argumentation will not bring us any closer to telling us what they were thinking when they drafted the rules on contempt in the first place and answer this ultimately very simple question which seems to have been ignored in the entirety of these proceedings: if they thought that corporate liability for contempt was so important, to the point of it verging on attaining a legal status, why did they not include it, just to make everyone life easier down the road?

In any case, I’m not sure things are over yet. It is now 3-2 for judges who want to extend contempt to legal persons. Not a large consensus. Let’s see what happens next…