Archive for the 'International News' Category
September 5th, 2010 by Cathy Mac Daid
In a Report published on 31 August 2010 Amnesty International have outlined concerns over Rwanda’s laws on “genocide ideology” and “sectarianism”. These laws were introduced following the 1994 Rwandan genocide. Up to 800,000 Rwandans were killed during the 1994 genocide, most of them ethnic Tutsi, but also some Hutu who opposed this organized killing and the forces that directed it. Aware of the role that hate speech and the infamous hate radio Radio Télévision Libre des Milles Collines (RTLM) played in inciting genocidal participation, the post-genocide government led by the Rwandan Patriotic Front (RPF) enacted laws to encourage unity and restrict speech that could promote hatred.
The Rwandan government announced a review of the “genocide ideology” law in April 2010. Amnesty International has welcomed this government initiative and this this report identifies Amnesty International’s concerns about the current legislation and its application in light of the Rwandan government’s review process.
Amnesty International suggests that although prohibiting hate speech is a legitimate aim, the Rwandan government’s approach violates international human rights law. Rwanda’s vague and sweeping laws against “genocide ideology” and “divisionism” under “sectarianism” laws criminalize speech protected by international conventions and contravene Rwanda’s regional and international human rights obligations and commitments to freedom of expression. The vague wording of the laws is deliberately exploited to violate human rights.
Prosecutions for “genocide ideology” and so-called “genocide ideology-related” offences were brought even before the law defining this offence was promulgated. People continue to be prosecuted for “divisionism”, under “sectarianism” laws, even though “divisionism” is not defined in law. Rwandans, including judges, lawyers and human rights defenders, expressed confusion about what behaviour these laws criminalize.
Amnesty state that these broad and ill-defined laws have created a vague legal framework which is misused to criminalize criticism of the government and legitimate dissent. This has included suppressing calls for the prosecution of war crimes committed by the Rwandan Patriotic Front (RPF). In the run-up to the 2010 elections, legitimate political dissent was conflated with “genocide ideology”, compromising the freedom of expression and association of opposition politicians, human rights defenders and journalists critical of the government.
To read the report entitled “Safer to Stay Silent: The Chilling Effect of Rwanda’s Laws on ‘Genocide Ideology’ and ‘Sectarianism” see here – Amnesty Report – Rwanda’s Laws on genocide ideology
August 5th, 2010 by Gillian Higgins
Miss Campbell’s No Rough Diamond!
On 20 May, the Prosecution claimed that the anticipated testimony of Miss Naomi Campbell concerned a central issue in the trial of Charles Taylor, namely his “possession of rough diamonds”.
Dressed impeccably and traditionally late, Miss Campbell appeared in The Hague today to testify as a Prosecution witness in the SCSL trial of Charles Taylor.
She testified that she attended a dinner at the request of Nelson Mandela at his Presidential Palace in September 1997. The guests who included Imran Khan, Quincy Jones, Charles Taylor, and Mia Farrow had all been personally invited by Mr Mandela to mark the inaugural journey of the South Africa’s newly renovated equivalent of the Orient Express, called the Blue Train. Carole White, Campbell’s former agent was also present at the dinner.
Campbell testified that after the dinner she retired to her room in the palace and was later awoken during the night by a knock at her door. Two black men presented her with a “pouch” stating merely the words “a gift for you”. She explained that she did not look in the pouch until the morning when she saw a few “very small dirty looking stones”. Neither did she ask the men who the gift was from or what it was.
It was Mia Farrow or her former agent Carole White at breakfast the next day who told her they must be diamonds and that they must have come from Charles Taylor. She stated that she assumed that this must be right, but conceded that she had never previously heard of Liberia or Mr Taylor, or of the term “blood diamonds”. Later that day she gave the contents to Jeremy Ratcliffe, head of the Nelson Mandela Children’s Fund to “do some good”. Mr Ratcliffe told Miss Campbell last year that he still had the diamonds in his possession.
Miss Campbell denied accounts put to her by the Defence from Miss Farrow and Miss White which suggested that Miss Campbell and Mr Taylor had engaged in flirtatious conversation over dinner; that she had been sat between Mr Taylor and one of his ministers; that Miss White was present with the two men who knocked on Miss Campbell’s bedroom door, and that Miss Campbell examined the contents of the pouch there and then, and was “excited”. These, Miss Campbell confirmed, were “lies”. Miss White is currently engaged in a contractual dispute with Miss Campbell and is due to testify next week, along with Miss Farrow.
Although I pondered the veracity of Miss Campbell’s claim that she didn’t look at the contents of the “cloth” until the morning after, and that she was told that they were “diamonds” by Miss Farrow or Miss White, although she claimed she didn’t show them the pouch, one thing is clear: reliance upon a mere “assumption” made by Miss Campbell based upon a chat over breakfast with White and Farrow as to the content of the pouch and its source does not in any way, shape or form establish either that the two men who presented the cloth were linked to Charles Taylor, or indeed, that he was in “possession of rough diamonds”. A central issue in the trial it may be, but it is one which Miss Campbell’s testimony does not substantiate.
By the end, the Prosecution tried to assert that Miss Campbell was not their witness – but as the Presiding Judge made clear, she certainly wasn’t a witness of the court. Next week’s installment is highly recommended viewing!
On 20 May, the Prosecution claimed that the anticipated testimony of Miss Naomi Campbell concerned a central issue in the trial of Charles Taylor, namely his “possession of rough diamonds”.
Dressed impeccably and traditionally late, Miss Campbell appeared in The Hague today to testify as a Prosecution witness in the SCSL trial of Charles Taylor.
She testified that she attended a dinner at the request of Nelson Mandela at his Presidential Palace in September 1997. The guests who included Imran Khan, Quincy Jones, Charles Taylor, and Mia Farrow had all been personally invited by Mr Mandela to mark the inaugural journey of the South Africa’s newly renovated equivalent of the Orient Express, called the Blue Train. Carole White, Campbell’s former agent was also present at the dinner.
Campbell testified that after the dinner she retired to her room in the palace and was later awoken during the night by a knock at her door. Two black men presented her with a “pouch” stating merely the words “a gift for you”. She explained that she did not look in the pouch until the morning when she saw a few “very small dirty looking stones”. Neither did she ask the men who the gift was from or what it was.
It was Mia Farrow or her former agent Carole White at breakfast the next day who told her they must be diamonds and that they must have come from Charles Taylor. She stated that she assumed that this must be right, but conceded that she had never previously heard of Liberia or Mr Taylor, or of the term “blood diamonds”. Later that day she gave the contents to Jeremy Ratcliffe, head of the Nelson Mandela Children’s Fund to “do some good”. Mr Ratcliffe told Miss Campbell last year that he still had the diamonds in his possession.
Miss Campbell denied accounts put to her by the Defence from Miss Farrow and Miss White which suggested that Miss Campbell and Mr Taylor had engaged in flirtatious conversation over dinner; that she had been sat between Mr Taylor and one of his ministers; that Miss White was present with the two men who knocked on Miss Campbell’s bedroom door, and that Miss Campbell examined the contents of the pouch there and then, and was “excited”. These, Miss Campbell confirmed, were “lies”. Miss White is currently engaged in a contractual dispute with Miss Campbell and is due to testify next week, along with Miss Farrow.
Although I pondered the veracity of Miss Campbell’s claim that she didn’t look at the contents of the “cloth” until the morning after, and that she was told that they were “diamonds” by Miss Farrow or Miss White, although she claimed she didn’t show them the pouch, one thing is clear: reliance upon a mere “assumption” made by Miss Campbell based upon a chat over breakfast with White and Farrow as to the content of the pouch and its source does not in any way, shape or form establish either that the two men who presented the cloth were linked to Charles Taylor, or indeed, that he was in “possession of rough diamonds”. A central issue in the trial it may be, but it is one which Miss Campbell’s testimony does not substantiate.
By the end, the Prosecution tried to assert that Miss Campbell was not their witness – but as the Presiding Judge made clear, she certainly wasn’t a witness of the court. Next week’s installment is highly recommended viewing!
Image courtesy of the BBC website.
July 9th, 2010 by Steven Kay QC
The ICLB posted the Bangladesh International Crimes (Tribunals) Act 1973 on the blog and Facebook site 2 weeks ago. That statute applies rules of evidence and procedure which are not part of the regular Bangladesh criminal law.We now post the national rules of procedure and evidence which govern all other criminal trials in that state.
These laws replicate the criminal procedures of England & Wales from the late 19th century and many of which still remain in force in this jurisdiction. Recently, certain laws have been altered (hearsay, bad character etc), but the procedures of the International Crimes (Tribunals) Act, definitely do not reflect the current laws of England & Wales.
Evidence Act
http://www.bdlaws.gov.bd/pdf_part.php?act_name=&vol=I&id=24
Penal Code
http://www.bdlaws.gov.bd/pdf_part.php?act_name=&vol=I&id=11
Code of Criminal Procedure
http://www.bdlaws.gov.bd/pdf_part.php?act_name=&vol=IV&id=75
July 2nd, 2010 by Cathy Mac Daid
The UK Supreme Court ruled on Wednesday that British troops deployed abroad are not protected by the Human Rights Act outside of military bases, in R(Smith) v. Secretary of State for Defence. The Court dismissed claims that British soldiers on the battlefield should be protected by the Human Rights Act 1998, but ruled that the Ministry of Defence must be held to account more rigorously at military inquests.
Lord Phillips, the president, said it was impracticable to secure the principle of the right to life for troops “in active service abroad”. Matters “relating to the conduct of armed hostilities” were “essentially non-justiciable”, added Lord Collins. That principle, the court decided by a six to three majority, applied only when soldiers were on their base, and not when they stepped outside on patrol or on operations.
However this issue will ultimately be decided by the European Court of Human Rights in Strasbourg, which is hearing a separate case brought by alleged Iraqi victims of British military force.
The case was brought by Catherine Smith, whose son, Jason, 21, a private in the Territorial Army, died of heatstroke on a base in southern Iraq in August 2003. She argued the inquest should have investigated the circumstances in which he died, and why he died, not just how.
The guardian newspaper has the full text of the judgment – here – http://www.guardian.co.uk/law/2010/jun/30/smith-judgment-human-rights-jurisdiction
June 16th, 2010 by Cathy Mac Daid
British Prime Minister David Cameron has apologised for what he said were the ‘unjustified and unjustifiable’ events of Bloody Sunday. He was speaking following the publication of Lord Saville’s inquiry into the killing of 14 civilians in Derry in 1972.
In a statement, he said the 5,000-page report found that ‘on balance’ British troops fired the first shots during the ‘tragic events’ of 30 January 1972 without issuing a warning.
He told MPs: ‘The conclusions of this report are absolutely clear. There is no doubt, there is nothing equivocal, there are no ambiguities.’What happened on Bloody Sunday was both unjustified and unjustifiable. It was wrong.’
The lengthy and massively costly inquiry also concluded that Northern Ireland’s Deputy First Minister Martin McGuinness was present at the time of the violence and ‘probably armed with a submachine gun’ but did not engage in ‘any activity that provided any of the soldiers with any justification for opening fire’. The soldiers of Support Company who entered the Bogside area of Derry ‘did so as a result of an order … which should have not been given’ by their commander, the report said.
The civilians died after troops opened fire on a civil rights march.
Mr Cameron said Lord Saville ‘finds that on balance the first shot in the vicinity of the march was fired by the British Army. ‘He finds that none of the casualties shot by the soldiers of Support Company was armed with a firearm.’
While shots were fired by republican paramilitaries ‘none of this firing provided any justification for the shooting of civilian casualties’. Lord Saville found that ‘in no case was any warning given before soldiers opened fire’.
There was a ’serious and widespread loss of fire discipline’ among the troops and that none of the soldiers ‘fired in response to attacks or threatened attacks by nail or petrol bombs’.
To read the full 5000 page report by the Bloody Sunday Inquiry see here – http://report.bloody-sunday-inquiry.org/
For media coverage and reaction to the report see here:
http://news.bbc.co.uk/2/hi/northern_ireland/foyle_and_west/10319881.stm
http://www.irishtimes.com/newspaper/ireland/2010/0616/1224272613911.html
http://www.irishtimes.com/newspaper/ireland/2010/0616/1224272614142.html
http://www.guardian.co.uk/uk/2010/jun/17/bloody-sunday-inquiry-soldiers
June 3rd, 2010 by Alex Fielding
The NY Times has reported that Peter Erlinder has attempted suicide in his cell following interrogation by Rwandan police on charges of “genocide denial”. Under Rwandan law, Erlinder could be charged with attempted suicide.
The Independent is reporting that it is believed Erlinder swallowed 45 to 50 pills on Tuesday. His condition is said to be improving.
Mr Erlinder, who was arrested last Friday, was part of the defence team of Victoire Ingabire, an opposition leader accused of promoting genocidal ideology. He could face up to 25 years in prison.
In addition to the calls for release mentioned in the blog post below, the Association of International Criminal Defence Lawyers, Germany has also submitted an open letter to the Rwandan government calling for Erlinder’s release: Erlinder – ICDL Letter
June 1st, 2010 by Deirdre Montgomery
The ICLB’s Guénaël Mettraux has written an op-ed in the International Herald Tribune on the indictment of Judge Baltazar Garzon. It is available here, and reproduced below:
International Justice - For Others
On May 14, the Spanish General Council of the Judiciary suspended Judge Baltasar Garzón from his functions following his indictment on charges of abuse of authority.
His crime? Garzón allegedly over-stepped his mandate when deciding to initiate an investigation into the disappearance of civilians during Francisco Franco’s dictatorship despite a law of amnesty that covered these crimes.
In the years before that, Garzón had become a living symbol of international justice as he pursued the likes of Augusto Pinochet and Osama bin Laden in the name of universal principles of human dignity, human rights and the international fight against impunity.
The reaction to Garzón’s latest investigative efforts and the Brazilian Supreme Court’s recent upholding of a law of amnesty that applies to the crimes of Brazil’s military dictatorship are powerful reminders that states can still decide what to do with their past, even when that past involves mass atrocities.
That possibility, however, is not open to all states in equal measure. Where their sovereignty has been subjugated (as with Germany after World War II) or where they can be politically pressed into submission (Serbia, most recently), states can be forced to subject their actions to the judgment of other nations in the name of the same values that had validated Garzón’s efforts.
Despite repeated assertions that a body of universal criminal prohibitions applicable to all has grown from these values, they remain to a large extent “le droit des autres,” a set of rules that we seem content to apply to others, but not to ourselves. The “others” are those, states and individuals, who have lost the political muscle to preempt or resist the application of that regime to them.
The International Criminal Court, a tribunal with global ambitions, has thus far only indicted Africans, although more than a hundred countries from five continents have now joined the Court, and crimes coming within its jurisdiction have arguably been committed outside of Africa.
Meanwhile, domestic courts in the Netherlands have successfully shielded Dutch soldiers and the state from judicial scrutiny for their alleged failure to prevent mass atrocities in Srebrenica in July 1995, while Serb and Bosnian nationals are being prosecuted on Dutch territory by an international tribunal for their involvement in those events. The same tribunal declined a few years ago to even investigate crimes attributed to NATO forces in Serbia during the 1999 bombing campaign.
While it could be that no international crimes were committed on those occasions or that there might be other good reasons not to prosecute such cases, a refusal to look into them contribute to creating the unfortunate impression that international accountability matters to some, but not to all.
The indictment of Garzón feeds into this uncomfortable sense of political selectivity in the application of the law. While Garzón was not prevented from investigating Argentine or Chilean nationals by local amnesties, Spanish law seemingly creates an absolute prohibition against an endeavor of the same kind that targets fellow nationals.
Garzón’s error was to assume that the values which had provided a moral and legal justification for his past crusades truly applied universally. Unfortunately, that is not yet the case. International criminal justice still operates selectively within the cracks that international politics have opened up for it.
While it could be argued that some justice is better than none, the present hyper-selectivity of international criminal justice could be most damaging to its credibility in the longer term.
The legitimacy of the rule of law, domestic or international, is based on the assumption that it does apply to all, without prejudice and without discrimination. Stripped of that element, it risks becoming — and will be portrayed as — a tool of political convenience for the powerful.
Before pushing any further the boundaries of international criminal justice, we should ask ourselves whether we are truly committed to subject the conduct of our own leaders and fellow citizens to the standard that we seek to apply to others.
We should also question whether we may legitimately force other nations to face their past in the name of supposedly universal values when we allow powerful countries such as Spain or Brazil to forget and forgive the crimes of their past. If the answer is no, we should perhaps show a great deal more restraint in imposing our demands for justice in states other than our own.
Our commitment to the rule of law should be measured against our readiness to see the standards that we wish to impose on others applied to our fellow citizens. The dismissal of charges against Garzón would be a good place to start the necessary process of making these standards truly universal.
May 26th, 2010 by Deirdre Montgomery
ECCC Updates by Jenny Kelleher:
Duch verdict to be announced on 26th July 2010
The ECCC has set the date for the verdict in Case File No. 001 concerning accused person Kaing Guek Eav alias Duch, as Monday 26 July 2010.
Duch is accused of crimes against humanity and war crimes, as well as premeditated murder and torture pursuant to the 1956 Cambodian Penal Code.
Duch has been detained in the ECCC Detention Centre since 30 July 2007. After initial hearings on 17 and 18 February 2009, the trial commenced on 30 March and concluded on 27 November 2009.
The official press release is available here.
ECCC rule on Joint Criminal Enterprise
The Pre-Trial Chamber has ruled on the use of the three forms of Joint Criminal Enterprise (JCE) upholding the first two forms of JCE yet refraining from relying on the third form.
The basic form of JCE (JCE I) exists where the participants act on the basis of a common design or enterprise sharing the same intent to commit a crime. The systematic form (JCE II) exists where the participants are involved in a criminal plan that is implemented in an institutional framework such as an internment camp, involving an organized system of ill treatment. Both forms have been recognized under customary international law and international military case law since the post World War II period and are therefore applicable under ECCC law.
The third extended form (JCE III) exists where one of the participants engages in acts that go beyond the common plan but those acts constitute a natural and foreseeable consequence of the realization of the common plan. This however has been deemed “not in existence at the time relevant to Case 002” in international law and not identifiable in Cambodian law and therefore should not be applied.
The decision is available here.
Philippe Gréciano appointed as Co-Lawyer for Khieu Samphan
Mr. Philippe Gréciano has been appointed as International Co-Lawyer for Mr. Khieu Samphan. He will be working together with Mr. Jacques Verges and Mr. Sa Sovan in the defence team of Mr. Khieu Samphan.
Pre-Trial Chamber dismissed appeals from Ieng Sary, Khieu Samphan and Ieng Thirith against extension of provisional detention
In three decisions rendered on 30 April 2010, the Pre-Trial Chamber (PTC) dismissed appeals lodged by the charged persons Ieng Sary, Khieu Samphan and Ieng Thirith against three orders extending the periods of their respective provisional detention until November 2010. Video footage and the written decisions are available at the links below.
Ieng Sary, who was arrested on 12 November 2007, may be held in detention until 12 November 2010 in order to protect his security and to preserve public order, unless a Closing Order is issued by the Co-Investigating Judges prior to this date.
Ieng Sary Video 1
Ieng Sary Video 2
Ieng Sary Written Decision
Ieng Thirith was also arrested on 12 November 2007 and may now be held in provisional detention until 12 November 2010, unless a Closing Order is issued by the Co-Investigating Judges prior to this date. The PTC found that provisional detention still remains a necessary measure to prevent Ieng Thirith from exerting pressure on witnesses, destroying evidence, to prevent her from fleeing and to preserve public order.
Ieng Thirith Video
Ieng Thirith Written Decision
Khieu Samphan was arrested on 19 November 2007 and may be held in provisional detention until 19 November 2010, unless a Closing Order is issued by the Co-Investigating Judges prior to this date. In its decision dismissing the appeal, the PTC found that provisional detention still remains a necessary measure to protect the security of Khieu Samphan and to preserve public order.
Khieu Samphan Video
Khieu Samphan Written Decision
Civil Party Participation clarified
In a decision dated April 27, the PTC deemed civil party applications from victims identifying themselves as “ethnic Vietnamese” and “belonging to the Khmer Krom minority” as inadmissible.
The decision states that “In order for a Civil Party application to be admissible, the applicant is required to demonstrate that the injury results only from the facts for which the judicial investigation has already been opened.”
It is hoped that principles contained within the decision will provide guidance for civil party applicants and will determine their admissibility.
The decision states: “The participation of victims before the ECCC is not unlimited. It provides the possibility for victims alleging injuries as a direct consequence of crimes alleged against the Charged Persons to effectively become part of the ECCC proceedings at the investigating stage and beyond.”
The full decision is available here.
United Nations Under-Secretary General visits ECCC
The United Nations Under-Secretary-General for Legal Affairs, Ms. Patricia O’Brien has visited the ECCC and held meetings with both national and international officials of the Court. In a meeting with all ECCC staff on 21 April 2010, Ms. O’Brien commended the Court for its progress, the successful completion of Case 001 and the expected judgment in July 2010.
May 18th, 2010 by Dr. Guénaël Mettraux
On 17 May 2010, the Grand Chamber of the European Court of Human Rights rendered its Judgment in the matter of Kononov v Latvia. The Judgment contains a fascinating discussion of some of the challenges and difficulties involved in measuring war crimes prosecutions against the principle of legality.
April 22nd, 2010 by Deirdre Montgomery
Dov Jacobs has a written blog post on the latest Garzon news, responding in part to Alex Fielding’s post on this site. This is cross-posted on Dov’s own blog, Spreading the Jam :
In recent weeks, the media and the human rights community have concerned themselves with the case against well-known Spanish judge Baltasar Garzon, famous among other things for initiating proceedings against former Chilean President Augusto Pinochet. I’ve mostly read expressions of support for the Judge, but they generally confuse the different issues under consideration.
Apparently, what Garzon is being prosecuted for is for having initiated an investigation into disappearances that occurred during the Spanish Civil War and the Franco era, therefore exceeding his jurisdiction because of a 1977 Spanish Amnesty Law covering these crimes. This situation raises several questions.
The first one, that all have put forward, is the validity of the amnesty in relation to international law. More specifically, are national amnesties for international crimes, more particularly crimes against humanity, contrary to international law? A lot has been written on this issue and this is not the place to answer the question. I have written an article expanding on the different aspects to be considered. In a nutshell, I don’t think this is a relevant question in the context of the Spanish national system. IF, and I insist, IF, amnesties for crimes against humanity are deemed contrary to international law, the main consequence is that they won’t be recognised by another State’s courts, or by international tribunals. It does not mean that they are not applicable in the legal system of the country that adopted them, in our case, Spain (and as an aside comment, anybody who has actually read the decisions on amnesties issued by the SCSL should be weary in referring to them, given their obscure drafting and debatable legal reasoning…).
More importantly, the international illegality is irrelevant in the national setting in relation to the specific procedure that undoubtedly exists to challenge the legality of a norm. Even if the amnesty is illegal under Spanish law, whose role is it to contest this amnesty? In most of the reports I’ve read, commentators seem to forget that Garzon is not an investigative judge of the world community, he is an investigative judge of Spain, and is an agent of its judicial system. Some have argued that the current proceedings run counter to judicial independence. But judicial independence does not mean unaccountability. A Spanish investigative judge cannot act beyond the scope of the jurisdiction of Spanish law and go beyond the powers vested into him by Spanish Law. It is not his role to contest this law. If Human Rights organisations, or victims’ groups want to file a complaint in national courts opposing the legality of the 1977 Amnesty, fair enough, it is their role, not that of an investigative judge.
Another point that is highlighted in most commentaries, is the fact that “The charges were brought by two far-right groups who fear an open investigation of the Franco-era record” (NY Times Editorial) and that “allowing politically motivated groups to use the courts to intimidate magistrates and pre-empt investigations into past injustices appears to be a step backwards for human rights”. Of course I don’t have any sympathy for the far-right Francoist groups who brought the allegations before the court, but I find this remark a little disingenuous, or at the very least, naive. Courts are open to everybody, irrespective of whether one likes the person or group. When Amnesty International or Human Rights Watch file Amicus Curiae before national or international courts in favor of a certain position, they also are “politically motivated” (this would require some discussion on the useful but illusory narrative that human rights are “apolitical”…). They are also trying to “intimidate” dictators into not committing war crimes. Everybody has an agenda, and I refuse to deny legal standing based on my personal ethical evaluation of the ideological content of an organisation.
Finally, many have pointed out that Spain must face its past in order to move forward. Probably. But once again, how is that relevant to evaluating whether Judge Garzon has gone beyond his mandate in the existing legal setting? If that is his fight, he should quit and join activist groups that rightly call for more accountability for the Franco-era crimes. If he takes the risk of working on the fringes of legality, as an agent of the judicial system, he must bear the consequences of his actions.
In summary:
1) Yes, amnesties for crimes against humanity might be contrary to international law,
2) yes, one can argue that Spain’s amnesty law prevents the country from facing its past, but
3) Garzon is not a human rights body (such as the Inter-american court of human rights) whose function is to evaluate these issues,
4) Garzon is not a political leader or human rights activist whose function is to promote change,
5) he is an investigative judge of the system, whose function is to investigate within the existing legal framework, and therefore
6) if he goes beyond his function, whatever the valid moral reasons to do so, he should bear the consequences and
7) if he’s not happy with the existing legal framework, he should quit.
However much Garzon and his supporters have wanted to portray him as a world crusader against impunity, functionally, he is “only” a Spanish investigative judge. If he wants to campaign against amnesties in the international legal order (a perfectly legitimate goal), he should leave and continue his campaign as an international activist. Personally, and I know that might seem a little far fetched, I see some parallels between Garzon and Ocampo in portraying themselves as lone crusaders against the forces of evil. It must be an Hispanic cultural trait that could be called the Don Quixote Complex, but that could be the topic of another post.With all this in mind, I’ll take a side bet on the Garzon affair paving the way for him replacing Moreno Ocampo at the ICC. He would fit the bill perfectly in terms of experience and he would not be hindered by petty considerations of respecting national rules on sovereignty, amnesties or immunities…. Any thoughts on that?
April 20th, 2010 by Cathy Mac Daid
On 15 April a UN commission issued its report into the assassination of Pakistan’s former prime minister, Benazir Bhutto, saying that her death could have been prevented and blaming all levels of government for failing to provide adequate security. The report further concludes that the Pakistani police deliberately failed to investigate the murder properly as they feared intelligence agency involvement.
Speaking at a news conference at UNHQ, the head of the commission, Heraldo Munoz, said: “A range of government officials failed profoundly in their efforts, first to protect Ms Bhutto and second to investigate with vigour all those responsible for her murder, not only in the execution of the attack but also in its conception, planning and financing.” Investigators managed to collect just 23 pieces of evidence in a case that would typically have yielded thousands, according to the report. The commission of inquiry was set up in July last year, it was headed by the Chilean ambassador to the UN, Heraldo Muñoz, and the other members were Marzuki Darusman, a former attorney-general of Indonesia, and Peter Fitzgerald, a veteran of the Irish police.
The report is available here – http://www.unhcr.org/refworld/docid/4bcd50802.html
April 16th, 2010 by Deirdre Montgomery
Guest Post by Alex Fielding:
Balthasar Garzón, the well-known but controversial Spanish judge who indicted Pinochet and Bin Laden, will now have to answer his critics in court. He is accused of overstepping his authority by launching an investigation into the disappearances of over 100,000 people during the Spanish civil war and Franco era, in spite of a 1977 amnesty law.
The allegations of impropriety were brought by politically motivated groups, including the Falange de las Jons, a modern splinter group of the Franco-era fascist party of the same name. However, they managed to convince supreme court magistrate Luciano Varela that Garzón should stand trial and, if convicted, face a 12-20 year suspension from the bench.
The crux of the case is whether the amnesty law can be limited or superseded by crimes against humanity. It will be interesting to see how much weight international case law (notably the Special Court of Sierra Leone decision to prosecute indicted suspects who had been granted amnesty) is given by the Spanish supreme court in such a politically charged decision.
Allowing politically motivated groups to use the courts to intimidate magistrates and pre-empt investigations into past injustices appears to be a step backwards for human rights. The decision has been criticized by international media (see the NY Times editorial), human rights lawyers, and protesters on the streets, and solidarity with Garzón appears to have extended to Argentina where on April 14 a writ was presented to a Buenos Aires court to investigate alleged ‘genocide’ under the Franco regime based on universal jurisdiction (echoing Garzón’s earlier indictment against Pinochet).
However, the supreme court decision could also provide vindication for judicial independence and establish an important legal precedent regarding crimes against humanity and national amnesty legislation. Garzón has argued that the amnesty does not apply because an ongoing crime of kidnapping exists where no body has been found. Another factor in Garzon’s favour is that the 34 Francoist officials being investigated are now dead, which could limit the application of the amnesty laws.
According to British human rights lawyer Geoffrey Robertson, QC: “His [Garzón’s] ruling that there can be no posthumous impunity for crimes against humanity is important to all descendants of the victims of such crimes worldwide, whether they be from the Armenian genocide or the Nazi holocaust. As a matter of international criminal law he was undoubtedly right.”
After taking on Pinochet, the Basque group Eta, the mafia, al Qaeda and political corruption in Spain, Garzón may be facing his toughest test yet by confronting Spain’s troubled past.
For more information and opinion, here are some links below:
http://humanrightsdoctorate.blogspot.com/2010/04/baltasar-Garzón.html
http://www.guardian.co.uk/world/2010/apr/07/baltasar-garzon-trial-franco-disappearances
http://online.wsj.com/article/SB10001424052702303828304575179891513981922.html?mod=WSJ_Opinion_LEFTTopOpinion
March 19th, 2010 by Cathy Mac Daid
Secretary Hillary Rodham Clinton has announced that, for the first time, the United States will submit itself to a UN Human Rights Council review.
“Human rights are universal, but their experience is local. This is why we are committed to holding everyone to the same standard, including ourselves,” Clinton said, referring to U.S. participation this autumn in the “universal periodic review” process, run by the U.N. Human Rights Council.
The 47-member council, was established in March 2006 to replace the U.N. Commission on Human Rights. George W. Bush’s administration refused to join, citing the council’s nondemocratic makeup and its frequent criticisms of Israel, but the Obama administration reversed that decision last year. All 192 U.N. member countries are supposed to go through the UPR process every four years.
March 10th, 2010 by Deirdre Montgomery
Last week, a group called ‘Keep America Safe’, led by Elizabeth Cheney, released a video questioning the loyalty of Obama administration lawyers who have represented suspected terrorists. The group criticises Eric Holder and the Department of Justice for not releasing the names of seven of the nine lawyers appointed to the DoJ, asking “Who are these government officials?” “Whose values do they share?” and dubbing them the “Al Qaeda Seven”. In the background of the video hangs a headline “DoJ: Department of Jihad”. A subsequent investigation by Fox News revealed the names of the lawyers.
These events have sparked a series of debates on the rule of law, the right to counsel, to role of lawyers, and the right to a zealous defence. There have been cries of “McCarthyism”, claims that prisoners of war are not entitled to representation, and allegations that habeas lawyers in the US were using the federal courts as a tool to undermine the military’s ability to keep dangerous enemy combatants off the battlefield in a time of war.
On the role of defence counsel, a group of prominent lawyers, including conservatives and former Bush administration officials, signed a letter denouncing the “shameful series of attacks on attorneys in the Department of Justice who, in previous legal practice, either represented Guantánamo detainees or advocated for changes to detention policy.” It goes on to say “as attorneys, former officials, and policy specialists who have worked on detention issues, we consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications,” and concludes “to delegitimize the role detainee counsel play is to demand adjudications and policymaking stripped of a full record. Whatever systems America develops to handle difficult detention questions will rely, at least some of the time, on an aggressive defense bar; those who take up that function do a service to the system.”
South Carolina Republican Sen. Lindsey Graham also denounced the video, stating “A defense attorney who is making the government do their job regardless of the nature of the case is making this whole country a better place.”
For more debate, commentary and reactions:
http://www.nytimes.com/2010/03/08/opinion/08mon1.html?ref=opinion
http://www.nytimes.com/2010/03/10/us/politics/10lawyers.html?partner=rss&emc=rss
http://roomfordebate.blogs.nytimes.com/2010/03/09/attacking-lawyers-from-the-right-and-left/?ref=politics
http://liveshots.blogs.foxnews.com/2010/03/03/exclusive-unknown-doj-lawyers-identified/
http://www.youtube.com/watch?v=yNZukOOrDTM
http://www.politico.com/news/stories/0310/34143.html#ixzz0hlHJzl10
March 8th, 2010 by Cathy Mac Daid
Today is International Women’s Day. The UN’s Theme for this year is ‘Equal Rights, Equal Opportunities: Progress for All‘.International Women’s Day has been observed since the early 1900s and annually on 8 March, thousands of events are held throughout the world to inspire women and celebrate achievements.
A directory of events to celebrate the day in your town is available here.
February 26th, 2010 by Cathy Mac Daid
KHRP Joint Statement Concerning Arrest of Mr Muharrem Erbey, IHD Vice President
KHRP together with the Bar Human Rights Committee of England and Wales, European Lawyers for Democracy and Human Rights, Haldane Society of Socialist Lawyers, and The Law Society of England and Wales have issued the following co-signed statement expressing grave concern over the arrest and detention of Mr Muharrem Erbey, Vice President of the Human Rights Association of Turkey (İHD), and President of the İHD’s office in Diyarbakir.
Statement:
In the very early hours of the morning on Christmas Eve 2009, lawyer Mr. Muharrem Erbey – Vice President of the Human Rights Association of Turkey (İnsan Hakları Derneği or İHD) and President of the İHD’s branch office in Diyarbakır, was detained by Anti-Terror Units of the Diyarbakır Security Directorate as part of an operation launched simultaneously in 11 provinces of Turkey, in which more than 80 people were detained. The stated reason for Mr. Erbey’s detention was his alleged membership of the Kurdish Communities Union (Koma Ciwaken Kurdistan or KCK), which is said to be a branch of the Kurdistan Workers Party (PKK). He was subsequently arrested the following day and is currently being held in Diyarbakır D-Type prison awaiting trial.
Mr. Erbey’s house was searched while he was in detention and his request that a lawyer be present during the search was refused. During the search of İHD’s offices police confiscated computers and documentation including archives documenting 21 years of human rights abuses. These include information on cases that are currently at the European Court of Human Rights and in which Mr Erbey is representing the applicants.
Mr. Erbey is highly regarded both in Turkey and internationally for his work as a human rights lawyer and defender, recently working on cases of extra-judicial killings and enforced disappearances in the region. İHD has been a partner organisation of the Kurdish Human Rights Project for many years together they have gained redress for hundreds of victims of human rights abuses in Turkey in cases at the European Court of Human Rights.
During his interrogation, Mr. Erbey was asked extensively about his work with the İHD, including several international visits he’s conducted in order to draw attention to human rights abuses in the region. Mr. Erbey completely rejects the charges against him. His arrest, raises concerns about the freedom of human rights defenders in Turkey to work without intimidation and harassment and potentially violates numerous principles of international human rights law including the UN Declaration on Human Rights Defenders, the International Covenant for Civil and Political Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms.
We the undersigned are gravely concerned about the arrest and detention of Muharrem Erbey and the human rights violations he has suffered on account of being a human rights defender. We therefore call on the Turkish authorities to investigate and monitor prosecution of this case and of all human rights defenders according to domestic and international law and for this case to be dealt with expeditiously.
Kurdish Human Rights Project
The Bar Human Rights Committee of England and Wales
European Lawyers for Democracy and Human Rights
Haldane Society of Socialist Lawyers
The Law Society of England and Wales