Thursday, 4 May 2017

Call for Book Proposals: International Law series

Call for Proposals

The University of Wales Press has launched a new series, International Law. 

The series aim is to capture dynamic and cutting-edge research in international law, with a strong focus on legal theory in international law. Proposals are welcome from any broadly defined sub-field of international law

This series will give internationally-based emerging scholars and published authors the opportunity to disseminate their research with a publisher which has strong links with international markets through its global distribution and marketing network.

International Law is currently soliciting proposals for monographs and edited volumes.

Professor Diane Marie Amann, Associate Dean for International Programs & Strategic Initiatives and Emily & Ernest Woodruff Chair in International Law, University of Georgia School of Law; and Dr Yvonne McDermott, Senior Lecturer in Law, Bangor University.

Professor Simon Chesterman, Dean, Faculty of Law, National University of Singapore;
Professor Fiona de Londras, Chair in Global Legal Studies, Birmingham Law School, University of Birmingham;
Professor Fionnuala Ní Aoláin, Robina Chair in Law, Public Policy and Society, University of Minnesota Law School and Professor of Law, Transitional Justice Institute, University of Ulster;
Professor Volker Roeben, Professor of International Law, Swansea University;
Professor Carsten Stahn, Professor of International Criminal Law and Global Justice and Programme Director of the Grotius Centre for International Studies, Leiden University;
Professor Ryszard Piotrowicz, Professor of Law, Aberystwyth University. 

To discuss ideas for contributing to this exciting new series, please contact the Series Editors, or Sarah Lewis, Head of Commissioning at the University of Wales Press:

Professor Diane Marie Amann:
Dr Yvonne McDermott: 
Sarah Lewis:

Sunday, 23 April 2017

Summer schools: Galway and Newcastle

Readers may be interested in the following Summer Schools:

Contemporary Challenges to International Criminal Justice Summer Academy Northumbria University, Newcastle 12-16 June 2017

Northumbria Law School is pleased to announce its 1st Summer Academy on Contemporary Challenges to International Criminal Justice (Law & Criminology) will take place in Northumbria University, Newcastle from 12-16 June 2017.

This novel summer academy provides a unique opportunity for participants to acquire in-depth knowledge on the most pressing issues facing the international criminal justice system from the leading scholars and practitioners in the field. Speakers will share their expertise and experience on a varied range of topics to encourage and inspire postgraduate research in law and criminology.

 The themes of the summer academy are:

  • Challenges to international criminal justice and the future of the International Criminal Court
  • Challenges to international cooperation in fighting transnational and international crimes
  • Challenges in prosecuting terrorism and religiously motivated violence
  • Challenges in ensuring effective redress for victims in post-conflict situations
  • Ecocide as a challenge to justice and security
  • Rule of law reform in post conflict countries

The distinguished speakers are: 

Professor William Schabas (Middlesex University/Leiden University) - Judge Howard Morrison (International Criminal Court) - Judge Professor Wolfgang Schomburg (International Criminal Tribunal for the former Yugoslavia 2001-2008, Durham University) - Judge David Baragwanath (Special Tribunal for Lebanon) - Judge Professor Philip Weiner (Extraordinary Chambers in the Courts of Cambodia) -  Professor Roger S. Clark (Rutgers Law School) - Professor Chrisje Brants (Northumbria University) - Professor Liz Campbell (Durham University) - Mr Karim A.A. Khan, QC (Temple Garden Chambers, International Defence and Victims Counsel & former Prosecutor) - Dr. Mohamed Elewa Badar (Northumbria University) - Dr. Rod Rastan (Legal Adviser, Office of the Prosecutor, International Criminal Court) - Professor Tim Wilson (Northumbria University) - Professor Roger Clark (Rutgers Law School) - Dr. Mohamed El Zeidy (Legal Officer, Pre-Trial Chamber II, International Criminal Court) - Dr. Tanya Wyatt (Northumbria University)- Dr. Noelle Higgins (Maynooth University) - Professor Michael Rowe (Northumbria University) - Mr. Patrick Schneider (EU Office of the Special Representative for Bosnia and Herzegovina) - Dr. Michael Kearney (Sussex University) - Mr. Krmanj Othman (KRG High Committee for the Recognition of Genocide against Yezidi Kurds and other minorities) ­- Dr. Patricia Hobbs (Brunel University) - Dr. Hakeem Yusuf (University Birmingham) - Dr. Elena Katseli (Newcastle University) - Dr. Jamie Harding (Northumbria University) - Dr. Ibrahim Shaw (Northumbria University) - Professor Nigel South (University of Essex) - Dr. Damien Short (University of London) - Dr. Mohamed 'Arafa (Indiana University) - Ms. Gemma Davies (Northumbria University) - Dr. David McGrogan (Northumbria University).

This event is a wonderful opportunity for international lawyers, legal interns, academics, and present and future postgraduate students to meet eminent scholars and practitioners in the field of international criminal justice as well as like-minded colleagues from all over the world. 
Participants may register to attend individual sessions or the whole event. Please note that places are limited.

For further information and to register please visit our website or email.

The International Criminal Court Summer School 2017
19 to 23 June 2017, NUI Galway, Ireland

The annual International Criminal Court Summer School at the Irish Centre for Human Rights is the premier summer school specialising on the International Criminal Court. The summer school allows participants the opportunity to attend a series of intensive lectures over five days. The lectures are given by leading academics on the subject as well as by legal professionals working at the International Criminal Court. The interactive and stimulating course is particularly suited to postgraduate students, legal professionals, scholars, and NGO workers. Participants are provided with a detailed working knowledge of the establishment of the Court, its structures and operations, and the applicable law. Lectures also speak to related issues in international criminal law, including: genocide, war crimes, crimes against humanity, the crime of aggression, jurisdiction, fair trial rights, and the rules of procedure and evidence.
This year’s ICC Summer School will include a topical special session on Corporate Crimes and the International Criminal Court.
The list of speakers at the 2017 ICC Summer School includes the following: Professor William Schabas (Irish Centre for Human Rights/Middlesex University); Professor James Stewart (University of British Columbia); Dr. Fabricio Guariglia (Office of the Prosecutor, International Criminal Court); Professor Megan A. Fairlie (Florida International University);  Professor Ray Murphy (Irish Centre for Human Rights); Dr. Rod Rastan (Office of the Prosecutor at the International Criminal Court); Dr. Mohamed M. El Zeidy (International Criminal Court); Professor Donald M. Ferencz (Middlesex University);  Dr. Noelle Quenivet (University of the West of England); Dr. Nadia Bernaz (Middlesex University); Dr. James Nyawo (INTERVICT, Tilburg University); Dr. Nadia Bernaz (Middlesex University); Mr. Richard J. Rodgers (Global Diligence LLP); Mr. John McManus (Crimes Against Humanity and War Crimes Section, Canadian Department of Justice); Dr. Noelle Higgins (Maynooth University); Dr. Shane Darcy (Irish Centre for Human Rights).
The registration fee of €450 includes all conference materials, all lunches and refreshments, a social activity and a closing dinner. The registration fee also includes a complimentary copy of Professor William Schabas' book 'An Introduction to the International Criminal Court'. The closing date for registrations is 1 June 2017.
To register and for more information regarding the 2017 ICC Summer School, please visit our website  and follow us on Facebook or Twitter.
Should you have any queries, please email us.

Thursday, 5 January 2017

ICC extends war crimes of rape and sexual slavery to victims from same armed forces

Trial Chamber VI of the ICC issued a very interesting decision in the case of Ntaganda yesterday. At issue was the Defence's argument that the Court could not have jurisdiction over the crimes of rape and sexual slavery allegedly committed against UPC/FPLC child soldiers, because war crimes cannot be committed against combatants from the same armed forces as the perpetrator. Such crimes, the Defence argued, would come within the ambit of domestic law and human rights, and were not covered by the war crimes prohibition. 

The argument, on its face, is rather convincing - the Geneva Conventions and their Additional Protocols explicitly protect certain categories of persons, principally sick, wounded and shipwrecked persons not taking part in hostilities, prisoners of war and other detainees, civilians and civilian objects. Ntaganda is charged with these crimes under Article 8(2)(e)(vi) of the ICC Statute, which defines the war crime as:
Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;
The chapeau of Article 8(2)(e) enumerates the crimes therein as being 'other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law'. It stands to reason, then, that we would examine that established international law framework in seeking to determine whether fellow combatants from the same armed forces as the perpetrator are protected by that framework.

Common Article 3 refers explicitly to 'persons taking no active part in hostilities', while Article 4 of Additional Protocol II (which contains the prohibition on outrages upon personal dignity, rape, enforced prostitution and any form of indecent assault) applies only to those 'persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted'. 

The most obvious way to resolve this issue would seem to be to acknowledge that Article 8(2)(c) and (e) crimes cannot be committed against those actively taking part in hostilities, but to argue that those victims identified in paragraphs 66-72 of the Confirmation Decision as having been abducted to act as domestic servants and, in the words of one witness, provide 'combined cooking and love services' were obviously not actively taking part in hostilities. 

Yet, other victims mentioned in the Confirmation Decision acted as bodyguards, while other young girls abducted by the UPC/FPLC and later raped by soldiers in camps underwent military training, from which we can assume that they probably carried out some military functions. The issue here is that the Trial Chamber in Lubanga embraced a much broader definition of 'active participation in hostilities', in order to include a wide range of children who were forcibly recruited as victims under Article 8(2)(e)(vii). It determined, in paragraph 628, that:
Those who participate actively in hostilities include a wide range of individuals, from those on the front line (who participate directly) through to the boys or girls who are involved in a myriad of roles that support the combatants.
At the time of the Lubanga judgment, several authors noted that this expansive definition may have unintended negative consequences for the protection of children in armed conflict. For example, Nicole Urban argued that, 'Should the sexual exploitation of and violence against child soldiers render them ‘active’ participants in hostilities under one Article, there is a real risk that they will also be considered as active participants in hostilities under the others.' In a sense, the chickens have now come home to roost, as the Court in Ntaganda has to marry that interpretation, which seeks to protect child soldiers as victims of forcible recruitment, with an interpretation that includes them within the ambit of Article 8(2)(e) when they become victims of other war crimes.

The Pre-Trial Chamber took the position that individuals only lose their protection 'for such time' as they are actively participating in hostilities, and that those who were raped and subjected to sexual violence were clearly not participating in hostilities at that time. This interpretation is somewhat problematic, as it sidesteps the situation of those members of the armed groups who bear a 'continuous combat function'. 

Trial Chamber VI in yesterday's decision took a rather different approach, by determining that:
While most of the express prohibitions of rape and sexual slavery under international humanitarian law appear in contexts protecting civilians and persons hors de combat in the power of a party to the conflict, the Chamber does not consider those explicit protections to exhaustively define, or indeed limit, the scope of the protection against such conduct. (para. 47)
It went on to conclude that, because the prohibition of rape had attained jus cogens status under international law (para. 51), 'such conduct is prohibited at all times, both in times of peace and during armed conflicts, and against all persons, irrespective of any legal status', and that it did not, therefore, need to determine whether the victims were 'members' of the armed forces at the relevant time (paras. 52-53).

This decision neatly sidesteps the issues surrounding the notion of active participation in hostilities raised by the Lubanga judgment. Yet, the conclusion that members of the same armed force are not per se excluded as potential victims of war crimes is a very expansive interpretation of Article 8, and one that is not fully reasoned in the judgment. The decision appears to be founded on two separate aspects. 

The first is that not all war crimes need to be committed against protected persons (para. 37). The Chamber referenced a number of sub-paragraphs of Article 8(2)(e) in this regard, namely Articles 8(2)(e)(ix) and (x) on perfidy and denying that no quarter will be given, in support of this argument. This is not entirely convincing, as Article 8(2)(e)(ix) explicitly refers to killing or wounding 'a combatant adversary' treacherously. Article 8(2)(e)(x), prohibiting a declaration that no quarter will be given, is explicitly prohibited because it would result in the killing of persons hors de combat

The second justification for the decision appears to be the widespread prohibition of rape and sexual violence under international humanitarian law. The Chamber considered that to limit the protection against rape to exclude members of the same armed group would be 'contrary to the rationale of international humanitarian law, which aims to mitigate the suffering resulting from armed conflict, without banning belligerents from using armed force against each other or undermining their ability to carry out effective military operations.' Given that there could be no military objective or justification to engage in sexual violence against any person, regardless of whether or not that person was a legitimate target under the law of armed conflict, the Chamber considered that the prohibition of sexual violence under IHL was not limited to certain categories of persons, and that anyone could be a victim of this war crime. This justification is more convincing, but leaves many questions unanswered, as it seems to be limited to the prohibition of rape (which the Chamber considered to be a jus cogens norm of international law). We might ask, for example, whether armed forces who commit acts of humiliating or degrading treatment against their own members, or who deny those members a fair trial, may now find that they are committing war crimes under Article 8 of the ICC Statute. 

This decision is clearly founded in a desire to offer the greatest level of protection to victims of sexual violence in armed conflict, regardless of their status. A similar argument was made in the ICRC's updated commentary to Common Article 3 of the Geneva Conventions, which stated that 'all Parties to the conflict should, as a minimum, grant humane treatment to their own armed forces based on Common Article 3.'

It will certainly be interesting to see what states' reactions to this expansive interpretation, and what the broader consequences of this decision, will be. 

Wednesday, 23 November 2016

Calls for papers: ESIL, University of Windsor, UCL Postgraduate Conference

ESIL Annual Conference, Naples, 7-9 September 2017: Call for Papers 

The 13th Annual Conference of the European Society of International Law will take place in Naples, Italy, on 7-9 September 2017. The conference will be hosted by the University of Naples Federico II, the oldest public university in the world.
The theme of the conference is ''Global Public Goods, Global Commons and Fundamental Values: The Responses of International Law''.
The Call for Papers is now open. Deadline for submission of abstracts: 31 January 2017.
Further information is available on ESIL website.

TLJN Conference 2017 - Transnational Criminal Law in the Americas, 4-5 May 2017: Call for Papers

On May 4-5, 2017, the Transnational Law and Justice Network at the University of Windsor, Faculty of Law, invites academics, policy makers, NGOs, and individuals working on the ground to participate in a multidisciplinary regional dialogue about the most pressing transnational criminal law issues facing the Americas today.

Topics may include: the suppression treaty regime generally; legal responses to specific transnational crimes such as drug trafficking, human trafficking, migrant smuggling, money laundering, corruption, firearms trafficking, environmental crimes, and other transnational organized crime; institutions and accountability for transnational crime; and mutual legal assistance, cooperation and capacity building. 

Questions to be addressed may include:

•    What are the most pressing transnational criminal law issues facing the Americas today and how are these issues evolving and shifting? 

•    Should greater emphasis be placed on regional responses to transnational criminal law and how should such regional responses be structured?

•    What assumptions underlie the current legal regimes addressing transnational crime and do they adequately reflect the reality of transnational criminality today?

•    How have globalization and technological advancements shifted the nature of transnational criminality and how should this inform the legal response?

•    How do critical approaches to law inform questions of transnational criminal law?

Those interested in presenting at the conference are invited to apply by email to no later than January 20, 2017. Further information can be found on the conference website.

The Art of Balancing: The Role of Law in Reconciling Competing Interests
University College London Faculty of Laws is pleased to invite submissions for its 2017 Postgraduate and Early Careers Conference to be held on 30-31 March 2017, at University College London, London, UK.The conference is designed to provide current doctoral students and recent PhD graduates with a forum to present and discuss their work among academic peers from different backgrounds and legal disciplines. The conference aims to promote fruitful research collaboration between its participants, and to encourage their integration in a community of legal scholars.

The Conference theme is “The Role of Law in Reconciling Competing Interests”. Contemporary legal problems create the need to balance competing interests, values, rights, obligations, and freedoms. This Conference will explore the response of the law and legal actors to modern challenges, be it in the context of domestic law and national jurisdictions or in the framework of international law.
The increasing criticism against the fragmentation of legal fields have brought about the need to reconcile public, individual, and international interests. Additionally, the growing focus on States’ obligations to respect and protect human rights and freedoms has too led to a shift in the manner States conduct themselves both in the domestic and international arenas. Yet, given the ever increasing extent of international regulation and concomitant demands on limited financial, technical and human resources, it is not at all clear how these competing rights and obligations ought to be balanced. Furthermore, the mounting pressure on the States to ensure the security of their population brings about the debate over States’ ability to limit other rights and freedoms on behalf of security interests, legitimate as may be.

We welcome applications from current doctoral students, both in law and law-related disciplines, and from recent graduates of doctoral programs up to five years since the completion of their PhD. We encourage submissions engaging all disciplines of law. Selection will be based on the quality of the proposal, as well as its capacity to engage with other proposals in a collaborative dialogue.

Interested scholars should email an abstract of up to 750 words along with a short bio in no more than two paragraphs by25 December 2016 to the following address: Abstracts should reflect papers that have not been published nor submitted elsewhere for consideration for publication. Successful applicants will be selected by an Organizing Committee and notified no later than 15 January 2017.

Saturday, 27 August 2016

Training materials on the investigation and documentation of sexual and gender-based violence

Last year, the organisation I worked for (the Institute for International Criminal Investigations in The Hague) was contracted by the Foreign and Commonwealth Office to develop a set of training materials based on their International Protocol on the Documentation and Investigation of Sexual Violence in Conflict. I'm glad to say that those training materials have finally been made available online. There are ten Powerpoint modules on relevant topics, along with guidance notes to indicate how the materials should be used, how to run the exercises and what specific expertise the trainers should have to be able to deliver the module successfully. Some of the modules are very specific to international criminal law, but some are more general and deal with issues like understanding and recognising sexual and gender-based violence, conducting interviews with vulnerable witnesses, planning investigation or documentation exercises and storing evidence safely. At the moment the materials are only available in English, but because they were designed to be used with the International Protocol they may be translated and made available in other languages at some point in the future. They are a very useful resource for anyone who is conducting trainings on this issue, and they would also be helpful to anyone researching the practicalities of how to improve standards of investigation and documentation in relation to sexual and gender-based crimes. The training materials are available here:

We have also produced specific guidelines on how to investigate or document sexual and gender-based violence committed against men and boys, which recognises some of the unique challenges and considerations of dealing with male victims of these types of crimes. Those guidelines are available here:

Friday, 8 April 2016

The Mistrial, An Innovation in International Criminal Law

Earlier this week, the second Kenyan case at the International Criminal Court came to an end with the granting of a motion by the two accused claiming that there is ‘no case to answer’. This is a pretty standard concept in adversarial proceedings. When the prosecution concludes its evidence and confirms that it has nothing further to add in order to make evidence of guilt, it becomes the turn of the defence to call evidence. But first the defence may contend that the evidence of the prosecution is insufficient to provide the basis for a conviction. If it succeeds, it is in principle entitled to an acquittal on the charges.

In the Ruto and Sang decision, two of three judges agree with the defence that the prosecution evidence is insufficient to establish guilt. The decision is somewhat strange and perhaps even unprecedented in international criminal law in that we have three separate judgments by the three judges. Dissenting judge Carbuccia even claims ‘that the decision of the majority of the Chamber contains insufficient reasoning, since Judge Eboe-Osuji and Judge Fremr have both given separate reason’. But that is clearly wrong because Judge Eboe-Osuji and Judge Fremr agree that there is no case to answer. Furthermore, Judge Eboe-Osuji, in his judgment, says he accepts Judge Fremr’s review of the facts.

The real novelty in this decision is the remedy. According to Judge Eboe-Osuji, it is a ‘mistrial’. Judge Fremr doesn’t use the word ‘mistrial’, and he says ‘I do not consider the impact to have been of such a level so as to render the trial null and void’. But he agrees with Judge Eboe-Osuji that it is ‘appropriate to leave open the opportunity to re-prosecute the accused, should any new evidence that was not available to the Prosecution at the time of the present case, warrant such a course of action’.

The consequence, then, is that the two majority judges agree that the prosecutor has been unable to produce enough evidence to convict but that she should be given a second chance. I suspect that the Prosecutor is very relieved to send the end of the Kenya nightmare and that this will be the last we hear of the situation. Were there ever an attempt to prosecute Ruto and Sang again, they would have strong arguments to challenge the legality of the determination by the majority.

This is the first time that a ‘mistrial’ has been declared in international criminal law. It is a term that is used in common law adversarial proceedings where juries are present and where a trial is in effect aborted and the prosecution given the chance to start anew. I am unaware of any examples of a mistrial outside the context of a jury trial. Presumably if there were any, Judge Eboe-Osuji, who is a meticulous and thorough researcher, as his many constructive and creative opinions demonstrate, would have found them and cited them in his reasons.

The first problem is that there is no notion of a ‘mistrial’ in the Rome Statute, the Rules of Procedure and Evidence, the Regulations of the Court, and previous practice of other international criminal tribunals. When prosecutors and defence counsel have tried to argue that certain procedural mechanisms exist by virtue of article 21, and in the absence of express provision in the Rome Statute, they have met with rejection by the Appeals Chamber. Judge Eboe-Osuji’s contention that this novel and hitherto unknown concept can be derived from article 64(2) and the duty of a Trial Chamber to ensure a fair trial is not very convincing. His case would be more compelling if he could find examples in national practice for a ‘mistrial’ where the prosecution is unable to make out its case.

Suppose that instead of making a ‘no case to answer’ motion, the defence had simply said it had no evidence to call on its own behalf. In other words, the defence would invite the Trial Chamber to issue a verdict based upon the prosecution’s evidence without calling any of its own witnesses. The result would have to be an acquittal. Why does this tactical decision by the defence put Ruto in a Sang in a position that is inferior to the one that they would be in had their counsel said they had no evidence to call?

Perhaps, according to Judge Eboe-Osuji’s theory, the ‘mistrial’ would still be available even at the verdict stage. But it seems extraordinary that a Trial Chamber could decline to issue a verdict of guilty or not guilty and instead declare a ‘mistrial’, thereby inviting the Prosecutor to try again. There is also a serious obstacle to all of this in the Rome Statute itself. Article 20(1) states: ‘Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.’

Article 84 of the Rome Statute poses another obstacle. It allows a revision of a judgment of conviction in the event of new evidence being available. There is no similar procedure in the case of acquittal. Allowing the Prosecutor to get a second chance if new evidence comes available is not consistent with this provision and with the vision of the drafters of the Statute. Suppose, for example, that instead of evidence of interference with prosecution witnesses being available at the 'no case to answer' stage, as it is in Ruto in Sang, this only became available after an acquittal, would the Prosecutor be entitled to demand a new trial? This is simply not allowed by the Statute.

Judge Eboe-Osuji is quite right to be shocked at the evidence of interference with the trial but his attempt to find an original remedy is troublesome. He is probably right to see article 70 proceedings for offences against the administration of justice to be an inadequate answer. But it cannot be ruled out that the ‘mistrial’ remedy may actually have the opposite effect. If a trial can be aborted in this way because of interference with witnesses, is that not an invitation to those who do not want justice to run its course? In this case, the defendant clearly would prefer an acquittal to a second trial. But in many cases, the defendant will prefer a second trial to the prospect of a conviction. Those who seek to avoid a conviction have now been provided with a mechanism.

Perhaps at some point another Chamber or another court will have to interpret this judgment. It should be construed as holding that based upon all of the Prosecutor's evidence there is 'no case to answer' and that this is equivalent to an acquittal. That the majority judges attempt to reserve the right of the Prosecutor to start again is not provided for by the Rome Statute and is in fact forbidden by article 20(1). They have gone beyond their authority in so doing. Subject to an appeal by the Prosecutor, Ruto and Sang are 'not guilty'.

Fred Harhoff and the mystery of the Šešelj acquittal

The acquittal judgment of Vojislav Šešelj paints a portrait of a man who might be described as ‘the Donald Trump of Serbia’. Some readers of the blog may be frustrated to find only summaries of the judgment and the dissent by Judge Lattanzi on the website of the International Criminal Tribunal for the former Yugoslavia. In fact, the Judgment can be found on the French site of the Tribunal, along with the 500-page Opinion concordante ofJudge Antonetti.

The trial itself finished in mid-2012, some four years ago, but judgment was delayed when Judge Fred Harhoff was recused in September 2013, only weeks before the Trial Chamber was expected to issue its verdict. Judge Harhoff’s recusal resulted from a motion filed by the defendant after Judge Harhoff’s infamous e-mail message to Danish friends and colleagues that complained about a malaise at the Tribunal. The President of the Chamber, Judge Antonetti, objected to the recusal of Judge Harhoff.

Rather than abort the trial and start again, the Tribunal decided to appoint a new judge who was to familiarize himself with the trial materials and then participate in the verdict. On 31 March 2016, Judge Antonetti and the new judge voted to acquit while Judge Lattanzi dissented.

One puzzle in the acquittal is the attitude of Judge Antonetti to the recusal of Judge Harhoff, back in September 2013. We now know what could not have been known in 2013, namely that Judge Antonetti favoured acquittal. Why would he have fought to keep Judge Harhoff in the Chamber knowing that he would vote with Judge Lattanzi to convict? After all, Judge Harhoff was recused because his impartiality was challenged by the defendant. The judgment of recusal  states that Judge Harhoff had ‘a bias in favour of conviction’.

Judge Liu dissented on that decision. He said that the majority had failed to take into account Judge Harhoff's experience as a Judge of the Tribunal and a professor of law. He said ‘had the Majority considered these circumstances, it would have found that Judge Harhoff's statements do not demonstrate an appearance of bias towards conviction of accused before the Tribunal as to overcome the presumption of impartiality’.

With hindsight, we can see that dissenting Judge Liu, who upheld the impartiality of Judge Harhoff was correct. The two judges who voted to recuse Judge Harhoff were wrong. So was the defendant, who made the mistake of filing his motion. By the way, Vojislav Šešelj deserves some credit for eventually obtaining an acquittal. He was ridiculed for defending himself. He didn’t even call witnesses in his own defence, something that most experienced criminal lawyers would denounce as a huge mistake. And he won an acquittal. But his challenge aimed at recusing Judge Harhoff was a mistake.

How do we know that Judge Harhoff would have voted to acquit? Today, the Oslo-based TOAEP released a policy brief by Fred Harhoff discussing his recusal. Professor Harhoff explains that he waited until the verdict before making this public statement. In it, he writes:

However, I did not even mention Šešelj’s name or make any reference to his person or his trial in my letter because my concern was not about Šešelj or other politicians, but about generals and the military establishments’ possible interest in rais- ing the legal requirements for the conviction of generals. The Panel did raise this issue in its Decision by referring to the fact that Šešelj was charged, inter alia, with hav- ing “directed paramilitary forces”, but his role was not comparable to the authority of a regular military com- mander during combat. He was a politician who occasionally visited his paramilitary volunteers at the front- line to boost their morale, but to the best of my knowledge, he never engaged in tactical manoeuvres or combat con- trol on the battle eld. My letter had nothing to do with Šešelj, nor was it particularly concerned with Serbs as such (as claimed by Šešelj in his Motion).
I waited until after the rendering of the Šešelj Trial Judgment on 31 March 2016 to publish these thoughts. A pos- sible appeal may still reverse the Trial Chamber’s acquit- tal. I regret the Decision to disqualify me from the Šešelj trial, not only because I still believe that the Decision – for the reasons I have explained above – was ill-founded, but also because my disquali cation and replacement by an- other Judge caused a further and substantial delay of the trial against the accused who had already been held in custody in The Hague for more than ten years. Indeed, the Bench on which I sat in the Šešelj case was just a couple of months away from rendering its judgment. The episode remains a mystery to me.

Professor Harhoff does not quite go so far as to say he was planning to vote to acquit, although that seems obvious enough from his comments made public today.

But maybe it is not such a mystery. We now understand better why Judge Antonetti was opposed to his recusal in the report that he sent President Meron in early September 2013. The only 'mystery' is the misjudgment by the other judges and those who supported the recusal of Judge Harhoff, including the defendant.

This episode provides a rare opportunity to assess how wrong conclusions about bias may be sometimes. Isolated statements and comments, taken out of context, can indeed raise concerns and lead to negative perceptions. The test is what the 'reasonable person' would apprehend. The saga of Šešelj and Harhoff should inform our 'reasonability' in such circumstances.

Fred Harhoff was and always has been a fair-minded professional who would neither convict or acquit an accused for improper reasons or out of bias. This wasn’t obvious enough to the judges who voted to remove him. Nor did the defendant understand this. If he had, he would have been a free man two and a half years ago.

Wednesday, 6 April 2016

The death penalty: Is the glass half full or half empty?

Amnesty International today issued its 2016 report on capital punishment. The thorough annual reports by Amnesty International have been produced for many years. They enable comparisons to be made and trends to be identified.

The ‘headline’ on Amnesty’s website is ‘Dramatic Rise In Executions’. It is a gloomy and discouraging message. I expect this story will run in the media around the world.

This may be a case of debating whether a glass is half empty or half full. As the report indicates, the dramatic increase is due to three countries: Iran, Pakistan and Saudi Arabia. In 2014, the three accounted for 386 executions. In 2015, they were responsible for 1,451 executions. It is a huge and terrifying increase. As Amnesty recognizes, these three states generate 89% of the total executions on the planet (with the exception of China, which Amnesty does not include in its statistics because nothing official is available).

But there is another much more hopeful message in the Amnesty data.

If the very peculiar and grotesque cases of Iran, Pakistan and Saudi Arabia are excluded from the total, we actually see a rather stunning decline in the death penalty throughout the world. I looked at Amnesty’s reports over the past six years, calculating the total number of executions but without counting Iran, Pakistan and Saudi Arabia. Here is the result

2010  248
2011  234
2012  288
2013  330
2014  223

2015  179

In other words, excluding those three very nasty countries, the number of executions in the world has never been lower. The decline in 2015 is nothing if not dramatic. If we look at the average for the previous five years, it is 264 executions per annum. The total of 179 for 2015 represents a drop of more than 30% compared with the average for the previous five years. Wow!

Some of this might be explained by the shrinking subject matter. In effect, there are fewer countries that apply the death penalty today than there were in 2010. But the difference is not that great. In 2010, Amnesty said that 95 states had abolished the death penalty in law., and that 139 had abolished it in either law or in practice. This year, the total is 102 for those that have abolished it in law, and 140 for those that have abolished it in law or in practice. That might explain a slight reduction, but not a 30% drop. The conclusion must be that most of the States that retain the death penalty actually use it significantly less than they did at the beginning of the decade.

China is excluded, of course. Since 2010, Amnesty has not even attempted to guess at the number of executions in China. It is probably several thousand per annum. Our information on China is entirely anecdotal, but it seems consistent with the general trend rather than with that of the three anomalous countries. There can be little doubt that China has greatly reduced its resort to capital punishment in recent years.

Sunday, 27 March 2016

ICC Summer School in Galway

The Irish Centre for Human Rights at the National University of Ireland Galway is pleased to announce that the annual International Criminal Court Summer School will take place from 27 June – 1 July.

The International Criminal Court Summer School 2016
27 June – 1 July 2016, NUI Galway, Ireland

The annual International Criminal Court Summer School at the Irish Centre for Human Rights is the premier summer school specialising on the International Criminal Court. The summer school allows participants the opportunity to attend a series of intensive lectures over five days. The lectures are given by leading academics on the subject as well as by legal professionals working at the International Criminal Court. The interactive and stimulating course is particularly suited to postgraduate students, legal professionals, scholars, and NGO workers. Participants are provided with a detailed working knowledge of the establishment of the Court, its structures and operations, and the applicable law. Lectures also speak to related issues in international criminal law, including: genocide, war crimes, crimes against humanity, the crime of aggression, jurisdiction, fair trial rights, and the rules of procedure and evidence.

This year’s ICC Summer School will include a special session on victims at the International Criminal Court.

The list of speakers at the 2016 ICC Summer School includes the following:

Professor William Schabas (Irish Centre for Human Rights/Middlesex University);
Professor Anne-Marie de Brouwer (Tilburg University); Dr Fabricio Guariglia (Office of the Prosecutor, International Criminal Court); Professor Megan A. Fairlie (Florida International University); Paolina Massida (Office of the Public Counsel for Victims, International Criminal Court); Professor Ray Murphy (Irish Centre for Human Rights); Dr Rod Rastan (Office of the Prosecutor at the International Criminal Court); Dr Mohamed M. El Zeidy (International Criminal Court); Professor Donald M. Ferencz (Middlesex University); Dr Nadia Bernaz (Middlesex University); Fiona McKay (former head of Victims Participation and Reparations Section of the International Criminal Court) Dr Kwadwo Appiagyei Atua (University of Ghana and University of Lincoln); Dr Noelle Higgins (Maynooth University);
Dr Shane Darcy (Irish Centre for Human Rights).

An early bird registration fee of €400 is available for delegates who register before 15 April 2016, with the fee for registrations after that date being €450. The registration fee includes all course materials, all lunches and refreshments, a social activity and a closing dinner. A limited number of scholarships are also available. Please see the General Information section of our website for further information.

To register and for more information regarding the 2016 ICC Summer School, please visit our website at, and follow us on Facebook or Twitter.

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