Friday, 16 February 2018

Judicial Independence in Times of Crisis

There are still a small number of guest places available for our British Academy conference in March on 'Challenges to Judicial Independence in Times of Crisis'. Full details and a registration link are here. Book now to avoid disappointment!

Speakers include:
Lord Kerr of Tonaghmore, Justice of the Supreme Court
Lord Thomas of Cwmgiedd, former Lord Justice of England and Wales
M Guy Canivet, former President, Cour de Cassation
Sir Konrad Schiemann, former Judge of the Court of Justice of the European Union
His Honour Jeremy Roberts QC, The Parole Board for England and Wales
Dame Sue Carr, High Court, Midland Circuit
Professor Fiona De Londras, University of Birmingham
Professor David Sklansky, Stanford University
Professor John Jackson, University of Nottingham
Professor Kate Malleson, Queen Mary University of London
Professor Ilias G. Anagnostopoulos, Athens Law School
Professor Martina Feilzer, Bangor University
Professor Raphaële Parizot, Université Paris-Nanterre
Professor Julian Petley, Brunel University London
Professor Vian Bakir, Bangor University
Dr Daniel Aguirre, University of Greenwich
Dr Moa Bladini, University of Gothenburg
Dr Lawrence McNamara, Bingham Centre for the Rule of Law and University of York
Dr Stephen Skinner, University of Exeter
Dr Dimitrios Giannoulopoulos, Brunel University
Lt. Col. Harry Mynors, Army Legal Service
Dr Yvonne McDermott Rees, Swansea University

Guest post: Michael Kearney, 'Al-Werfalli and the Presumption of Innocence'

We are delighted to welcome Dr. Michael Kearney, Senior Lecturer in Law at the University of Sussex, for this guest post.

In welcoming students to a black letter international crimes module, one of the initial, contextual, points worth emphasising is that since the individuals brought before international courts do tend to have been obviously responsible for serious crimes, we have to double down on our commitment to the presumption of innocence. It’s useful to acknowledge, if only by reference to logistics, the selectivity of international courts, and the unease that only a few individuals from among a potentially huge cast in any scenario are being prosecuted. It’s also helpful to flag up, how, since an accused may have been quite remote or detached from the physical perpetration of crimes, the appropriate interpretation and application of the various modes of liability will be crucial to the outcome of a case.

Last week I asked LLM/MA students to read the ICC’s August 2017 Arrest Warrant, and subsequent statements made by the OTP, in the case against Mahmoud Al-Werfalli in the situation in Libya. It seemed a useful first case to review in a new module since it was both topical and atypically straightforward: the accused was charged as a physical perpetrator of murder as a war crime, so no need for convoluted engagement with indirect coperpetration or the contextual elements of crimes against humanity. Considering the executions in question had been recorded and videos of them posted online, and the accused having been detained then released by his superiors, this could be regarded as having been as straightforward a prosecution as the OTP would get. 

So straightforward in fact that the Arrest Warrant, in addressing whether the evidence showed reasonable grounds to the believe Al-Werfalli had committed a crime within the Court’s jurisdiction had the following to say at para 28:
“Further, the Chamber finds that Mr Al-Werfalli personally committed the murders described in Incidents 1, 2, 3 and one of the murders described in Incident 7, and that he ordered, as a superior to others in the Al-Saiqa Brigade, the commission of the murders described in Incidents 4, 5, 6, and 19 of the murders described in Incident 7. The Chamber is further satisfied that he acted with intent and knowledge, and that he was aware of the status of the victims and of the factual circumstances that established the existence of the non-international armed conflict.”

To be clear, the paragraph continues in the next sentence to note that the Chamber ‘therefore finds reasonable grounds to believe that Mr Al-Werfalli bears individual criminal responsibility as a direct perpetrator’, while the summing up declaration notes ‘alleged criminal responsibility’. The OTP’s statement following issuance of the warrant clearly asserts: ‘Mr al-Werfalli is presumed innocent until proven guilty and the burden is on my Office to prove that he is guilty of the crimes we allege he committed. My Office can only discharge that burden if Mr al-Werfalli appears before ICC judges.’

Previously, in providing students with examples of the type of legal reasoning which would result in their struggling to pass a module, I reached for former Prosecutor Ocampo’s July 2010 Guardian piece on the Arrest Warrant for Al Bashir. While the entire proceedings revolved around the meaning of ‘reasonable grounds to believe’, Ocampo falsely asserted that a man who had never been brought before a judge, had been found by the ICC to be ‘deliberately inflicting on the Fur, Masalit and Zaghawa ethnic groups living conditions calculated to bring about their physical destruction.’

Much has been made of the purpose of proceedings before the ICC’s Pre Trial Chambers, tending towards the consensus that while crucial, this particular stage should not be understood as a mini-trial. Introducing a case such as that against Al Werfalli, where the evidence against him is so glaringly odius and obvious, should be the perfect opportunity to illustrate, as per the OTP’s statement above, that the man remains innocent until proven otherwise. It’s difficult, when introducing students to the study of international criminal law, to have to somehow try and explain how it is that ICC judges, in drafting this Warrant, could, to such a degree, appear to violate that fundamental principle of criminal law which is common knowledge to all laypersons.

Monday, 11 December 2017

Important essays on myriad international law subfields in new OUP book, "Arcs of Global Justice: Essays in Honour of William A. Schabas"

Professor Diane Marie Amann provided this guest post, which is cross-posted from her blog.

LONDON – Building on my earlier post about the magical London conference launching Arcs of Global Justice: Essays in Honour of William A. Schabas (Margaret M. deGuzman and Diane Marie Amann eds.), today's post profiles the book itself, which, thanks to excellent assistance from John Louth, Blake Ratcliff, and their staff, has just been published by Oxford University Press. (The hardback may be ordered via OUP or Amazon, and the book's also available on Kindle.)
Very pleased to have coedited this volume with my colleague Meg. The concept, in our words:
Martin Luther King, Jr. once said 'the arc of the moral universe is long, but it bends toward justice.' Testing the optimism of that claim were the many fits and starts in the struggle for human rights that King helped to catalyze. The same is true of other events in the last half-century, from resistance to apartheid and genocide to equal and fair treatment in domestic criminal justice systems, to the formation of entities to prevent atrocities and to bring their perpetrators to justice. Within this display of myriad arcs may be found the many persons who helped shape this half-century of global justice-and prominent among them is William A. Schabas. His panoramic scholarship includes dozens of books and hundreds of articles, and he also has served as an influential policymaker, advocate, and mentor.
This work honours William A. Schabas and his career with essays by luminary scholars and jurists from Africa, Asia, Europe, and the Americas. The essays examine contemporary, historical, cultural, and theoretical aspects of the many arcs of global justice with which Professor Schabas has engaged, in fields including public international law, human rights, transitional justice, international criminal law, and capital punishment.
In all, the book includes 29 contributions by 35 academics, advocates, and jurists, as detailed in the table of contents below. Providing jacket-cover testimonials were Steven Kay QC, Philippe Sands QC, Professor and former Ambassador David Scheffer, and Judge Christine Van den Wyngaert. We hope that you'll follow their recommendations and give these important, substantive essays a very good read.
Arcs of Global Justice:
Essays in Honour of William A. Schabas
Foreword by Diane Marie Amann and Margaret M. deGuzman, coeditors
Introduction: William Schabas: Portrait of a Scholar/Activist Extraordinaire by Roger S. Clark, Board of Governors Professor of Law, Rutgers University School of Law

Human Rights
Human Rights and International Criminal Justice in the Twenty First Century: The End of the Post-WWII Phase and the Beginning of an Uncertain New Era by M. Cherif Bassiouni (He died at age 79 in September, just weeks after he completed final changes on this essay; as posted, our conference included a memorial to him. At the time of his death, he was Emeritus Professor of Law, DePaul University College of Law; Honorary President, Siracusa Institute for Criminal Justice and Human Rights; and Honorary President, L'Association internationale de droit pénal.)
William Schabas, the Canadian Charter of Rights and Freedoms and International Human Rights Law by Justice Thomas A. Cromwell, Supreme Court of Canada, and Bruno Gélinas-Faucher, formerly a law clerk on that court and now a Cambridge PhD candidate
The International Convention on the Protection of All Persons from Enforced Disappearance, as a Victim-Oriented Treaty by Emmanuel Decaux, Professor Emeritus, Université Paris 2 (Panthéon-Assas), and former President, Committee on Enforced Disappearances
The Politics of Sectarianism and its Reflection in Questions of International Law & State Formation in The Middle East by Kathleen Cavanaugh, Senior Lecturer at the Irish Centre for Human Rights, National University of Ireland Galway, and  Joshua Castellino, Professor of Law & Dean of the School of Law, as well as the Business School, at Middlesex University, London

Capital Punishment
International Law and the Death Penalty: A Toothless Tiger, or a Meaningful Force for Change? by Sandra L. Babcock, Clinical Professor of Law at Cornell Law School and Faculty Director of the Cornell Center on the Death Penalty Worldwide
The UN Optional Protocol on the Abolition of the Death Penalty by Marc Bossuyt, Fellow at the Stellenbosch Institute for Advanced Study, Emeritus Professor of the University of Antwerp, Emeritus President of the Constitutional Court of Belgium, and former Chairman of the UN Commission on Human Rights
The Right to Life and the Progressive Abolition of the Death Penalty by Christof Heyns, formerly the UN Special Rapporteur on extrajudicial, summary or arbitrary executions from 2010 through 2016, and now a member of the UN Human Rights Committee and Professor of Human Rights Law at the University of Pretoria, Thomas Probert, Research Associate, Centre of Governance & Human Rights, University of Cambridge, and Tess Borden, Aryeh Neier Fellow at Human Rights Watch and the American Civil Liberties Union, and former researcher for the UN Special Rapporteur on extrajudicial, summary or arbitrary execution
Progress and Trend of the Reform of the Death Penalty in China by Zhao Bingzhi, Dean of the College for Criminal Law Science of Beijing Normal University, President of the Criminal Law Research Association of China, Vice-President of the International Association of Penal Law, and President of that association's Chinese National Group

International Criminal Law
Criminal Law Philosophy in William Schabas' Scholarship by Margaret M. deGuzman, Professor of Law at Temple University’s Beasley School of Law
Is the ICC Focusing too Much on Non-State Actors? by Frédéric Mégret, Associate Professor and Dawson Scholar, Faculty of Law, McGill University
The Principle of Legality at the Crossroads of Human Rights and International Criminal Law by Shane Darcy, Senior Lecturer at the Irish Centre for Human Rights, National University of Ireland Galway
Revisiting the Sources of Applicable Law Before the ICC by Alain Pellet, Emeritus Professor at the University of Paris Nanterre, former Chairperson of the UN International Law Commission, President of the French Society for International Law, Member of the Institut de droit international, as well as Counsel and Advocate before the International Court of Justice, the International Tribunal for the Law of the Sea, and other forums
The ICC as a Work in Progress, for a World in Process by Mireille Delmas-Marty, Member, Institut de France, and Professor Emerita, Collège de France de Paris
Legacy in International Criminal Justice by Carsten Stahn, Professor of International Criminal Law and Global Justice, Leiden University
Torture by Private Actors and 'Gold Plating' the Offence in National Law: An Exchange of Emails in Honour of William Schabas by Andrew Clapham, Professor of Public International Law at the Graduate Institute of International and Development Studies in Geneva, and Paola Gaeta, Professor of International Law and International Criminal Law at the Graduate Institute of International and Development Studies, Geneva

Genocide and Crimes Against Humanity
Secrets and Surprises in the Travaux Préparatoires of the Genocide Convention by Hirad Abtahi, First Legal Adviser, Head of the Legal and Enforcement Unit, at the Presidency of the International Criminal Court, and Philippa Webb, Reader (Associate Professor) in Public International Law at King's College London and a barrister at 20 Essex Street Chambers
Perspectives on Cultural Genocide: From Criminal Law to Cultural Diversity by Jérémie Gilbert, Professor of International and Comparative Law, University of East London
Crimes Against Humanity: Repairing Title 18's Blind Spots by Beth Van Schaack, Leah Kaplan Visiting Professor in Human Rights at Stanford Law School and Visiting Scholar at the Center for International Security & Cooperation at Stanford University
A New Global Treaty on Crimes Against Humanity: Future Prospects by Leila Nadya Sadat, James Carr Professor of International Criminal Law and Director of the Whitney R. Harris World Law Institute at Washington University School of Law, Special Adviser to the ICC Prosecutor on Crimes Against Humanity, and Director of the Crimes Against Humanity Initiative

Transitional Justice and Atrocity Prevention
Justice Outside of Criminal Courtrooms and Jailhouses by Mark A. Drumbl, Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute, Washington and Lee University School of Law
Toward Greater Synergy between Courts and Truth Commissions in Post-Conflict Contexts: Lessons from Sierra Leone by Charles Chernor Jalloh, Professor of Law, Florida International University, and a member of the International Law Commission
International Criminal Tribunals and Cooperation with States: Serbia and the provision of evidence for the Slobodan Milosevic Trial at the ICTY by Geoffrey Nice QC, a barrister since 1971, formerly at the International Criminal Tribunal for the Former Yugoslavia, and Nevenka Tromp, Lecturer in East European Studies at the University of Amsterdam and former member of the ICTY Leadership Research Team
The Arc toward Justice and Peace by Mary Ellen O'Connell, the Robert and Marion Short Chair in Law at the University of Notre Dame Law School
The Maintenance of International Peace and Security through Prevention of Atrocity Crimes: The Question of Co-operation between the UN and regional Arrangements by Adama Dieng, UN Under-Secretary-General and Special Adviser on the Prevention of Genocide, as well as former Registrar of the International Criminal Tribunal for Rwanda and former Secretary-General of the International Commission of Jurists

Justice in Culture and Practice
Law and Film: Curating Rights Cinema by Emma Sandon, Senior Lecturer in Film and Television at Birkbeck, University of London, and a Research Fellow to the Chair for Social Change, University of Johannesburg
The Role of Advocates in Developing International Law by Wayne Jordash QC, international human rights and humanitarian lawyer and founding partner of Global Rights Compliance
Bill the Blogger by Diane Marie Amann, Emily and Ernest Woodruff Chair in International Law and Faculty Co-Director of the Dean Rusk International Law Center at the University of Georgia School of Law