28 December, 2010

International Criminal Court Developments


On 10 December 2010, the Assembly of States Parties to the Rome Statute of the International Criminal Court (“the Assembly”) concluded its ninth session and adopted resolutions, inter alia, on the programme budget for 2011, permanent premises, governance, the Independent Oversight Mechanism and on Strengthening the International Criminal Court and the Assembly of States Parties.


A United Nations webcast is also available - here

The 9th Session followed the Kampala Review Conference (June 2010) which adopted a resolution relating to the crime of Aggression.  At Kampala provisions were adopted governing the terms of the ICC's ability to investigate and prosecute individuals for the crime of aggession.  The ICC parties agreed on a jurisdictional regime though procedures depend on how the matter gets to the ICC (e.g. by reference from the UN Security Council, State referral or the prosecutor's own initiative).  The Review Conference determined that the activation of jurisdiction is still subject to a positive decision by the ASP which cannot be taken before 1 January 2017 and one year after the ratification or acceptance of the amendments by 30 states parties, whichever is later. Read more on: Crime of Aggression



In Kenya there is concern about the ICC prosecutor having in his "cross-hairs" six Kenyans alleged to have been behind post-election violence - see here.  Kenyan MPs are seeking withdrawal from the court.  It is permissible for States to withdraw from the court but one year's notice is required and the withdrawal does not affect cases commenced prior to the notice of withdrawal.

Enforced Disappearances


On 23rd December 2010 the International Convention for the Protection of All Persons from Enforced Disappearance (Disappearances Convention) came into force after Iraq became the 20th country to ratify it.  The Convention aims to establish the truth about enforced disappearances, punish perpetrators and provide reparations to victims and their families.

An enforced disappearance takes place when a person is arrested, detained or abducted by a state or agents acting for the state. The authorities then deny that the person is being held or conceal their whereabouts, placing them outside the protection of the law.

The ramifications of enforced disappearances are severe. Those disappeared are often tortured and subjected to cruel, inhuman and degrading treatment. In many cases, they are secretly killed and their remains are hidden. Family members and those close to the person disappeared are left not knowing what has happened to their loved one, whether they are alive or dead. Entire communities can fracture under pressure as people fear being associated with those targeted.
The United Kingdom is not (yet) a party to this Convention.

Further reading see International Law Professors and Amnesty and International Coalition against enforced disappearances.

17 December, 2010

Drones - their legality in international law

The use of drones to attack targets was mentioned on this blog on 16th February and 18th April

Mr Philip Alston, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary execution produced a report in May 2010.  In October 2010, Chatham House London held a meeting to look at Drones and International Law. See below for Mr Alston's report and for a summary of the Chatham House meeting.

UNGA Report on Extra Judicial Execution                                                            

Drones and International Law
                                                           

16 December, 2010

Is the Government up to the task it faces? Serious questions: no answers.

The General Election of May 2010 produced a "hung Parliament" and the politicians put together a Coalition Government.  They have now been in power for 7 months.  Naturally, they claim that they are trying to put right the economic mismanagement of the previous Labour administration but serious questions are now beginning to arise as to whether they are going about matters the right way.  Here are some of the questions - I don't have the answers but it is perhaps time that we as a nation started to find them:

Health and General Practitioners:

Should funds amounting to £80 billion be handed over to the management of General Practitioners - see Public Finance The Risks of GP Commissioning  Just how will the GPs be held accountable for such a huge amount of public money?  Will every penny actually be spent on health care?  Even the British Medical Association is unhappy with aspects of this plan - see Pulse Today

Taxation of large business:

Many large British business are now legally based abroad so as to minimise their tax liabilities - should the government not be taking this a great deal more seriously?  Are UK tax rates too high if businesses feel the need to be "relocating."  See Daily Mail - "The Great Tax Heist" - 16th December - "While the Coalition Government is forced to slash spending on public services - not to mention raising the ceiling on student tuition fees - private companises contrive to cut the tax they hand to the Exchequer."  [Note: The word "avoidance" is to be avoided since minimising one's tax liability is lawful].


University Funding:

University tuition fees will rise from 1st September 2012.  It is argued that this will wreck the chances of University education for many from less financially well-off backgrounds.  The rules about fees are particularly unfair in that the same rules do not apply across the U.K. and it is the English student who ends up paying by far the most.  At present, the government appears unwilling to even begin to address this regional inequity.  The legislation dealing with student fees is the Higher Education Act 2004 and Regulations made thereunder.  MPs voted on the Draft Higher Education (Higher Amount)(England) Regulations 2010.  The sponsor of the draft regulations is the Department for Business, Innovation and Skills and see their webpage dealing with Student Finance.

It is cliamed by some lawyers that the increased fees may be in breach of fuman rights law - see The Guardian 16th December for this view.   Mr Phil Shiner of Public Interest Lawyers is quoted as saying - "It is blindingly obvious that using so-called financial crisis as a guise, this government has set out to permanently change higher education to one based on elitism.  It is inconceivable that students from ordinary backgrounds could afford to take on such debts."  


Defence and the enormous waste of money:

The Strategic Defence Review produced a Royal Navy without an operational aircraft carrier and now the Harrier "jump jet" has been phased out of service - see BBC News.  The uniquely British Harrier gave magnificent service and large sums of public money were spent on it recently.  See Think Defence.  The Harrier decision seems to be particularly problematic given the aircraft's ability to operate from any land area giving U.K. Forces a very special capability which is now lost.  The Public Accounts Committee has issued a report "Managing the Defence Budget" which is highly critical.  Here are the opening words:  "


"The Ministry of Defence (the Department) is responsible for over £42 billion of annual expenditure. While it has managed to stay within budget each year, it has failed to exercise the robust financial management necessary to control its resources effectively in the long term. It has also failed to match its future plans to a realistic assessment of the resources available. There is a shortfall in planned expenditure against likely funding of up to £36 billion over the next ten years. The Strategic Defence and Security Review did not explicitly set out how this long-standing gap between defence spending and funding would be resolved. It is imperative that the Department should now do so."



... and whilst we are still thinking about the sea, the government has announced that the number of Coastguard Stations is to be cut from 18 to just 3.  The Independent 16th December.   This smacks of a government which knows the price of everything and the value of nothing.

Overseas Aid:

Just why is Overseas Aid being protected by the government - which continues to borrow - whilst almost everything at home is being slashed to the bone?  See Daily Mail 18th September.  Even if one accepts that the UK should maintain a certain level of such spending, there are other questions about the management and application of the money.

Access to justice:

Meanwhile, access to justice is likely to be severely limited by further drastic cuts to legal aid.  The government appears to be gambling with public safety by preferring rehabiltative sentences to imprisonment.  Questions remain about the resourcing of alternatives to imprisonment though Ministry of Justice proposals refer to paying new (probably private enterprise) providers of programmes by results.  Essential public services such as Policing are also facing very serious financial constraints and job cuts whilst the government pursues an expensive idea of introducing elected Police Commissioners.

MPs and their expenses:

Will the sorry saga of MPs and their expenses every be settled?  It continues to fester - see BBC News.

Public Sector Jobs:

Huge cuts in the public sector workforce are to take place - The Guardian 16th December. without there being a private sector strong enough to absorb them.  This seems to be the result of brutal cutting philsophy of the government whereas some urged a more managed approach to reductions.


On this December day, there is a strong cold northerly (arctic) wind and further snowfalls are forecast.  It is indeed a Bleak Midwinter and many are seriously questioning the ability of this government to act fairly and sensibly in what is undoubtedly a serious situation.  Many of the decisions are taken by very wealthy Ministers and are creating social problems which may lead to further civil unrest.  Then there is the decision to raise VAT to 20% from early January.  Many are seeing this as the death-knell or coup de grace for many already struggling smaller businesses.  This comes on top of some serious inflation which has occurred over the autumn.  This leads to the most serious question of all - "Is the Government actually up to the task?"  If the answer to that is NO then should they be trying to pass an essentially self-serving Act which will lock them  into a Fixed Term Parliament with the next election being held in 2015.

"A Hung Parliament will be Bad for Britain" - well it was Mr Cameron who said it - BBC News 4th April.

08 December, 2010

Chilcot to take further evidence in early 2011

It appears that the Chilcot Inquiry will be recalling former Prime Minister Blair and certain others.  The Guardian 8th December 2010.  See the Inquiry's Press Release of 8th December which indicates that further evidence will be taken in the period 18th January 2011 to 4th February 2011.

Name
Relevant Role
The Rt Hon. Tony Blair
Prime Minister, 1997 – 2007

Admiral the Lord Boyce GCB OBE DL
Chief of the Defence Staff 2001-2003
John Buck
Director for Iraq 2003-2004

Tom McKane

Deputy Head of Defence and Overseas Secretariat, 2001-2002

Sir Gus O’Donnell, KCB

Cabinet Secretary and Head of the Home Civil Service, 2005 to date
Stephen Pattison

Head of UN Department, 2001-2003 and Director for International Security 2004 – 2007

Sir David Richmond KBE CMG


Deputy UK Special Representative to Iraq, 2003-04; UK Special Representative to Iraq, 2004; and Director General Defence and Intelligence, FCO, 2004-06

The Rt Hon. Jack Straw MP

Secretary of State for Foreign and Commonwealth Affairs, 2001 – 2006

Air Chief Marshal Sir Glenn Torpy GCB CBE DSO

UK’s Air Component Commander for Op Telic One 2003; Chief of Joint Operations (CJO) 2004 – 2006, Chief of the Air Staff 2006-2009

Lord Turnbull of Enfield GCB
Cabinet Secretary and Head of the Home Civil Service, 2002 – 2005
Sir Stephen Wall GCMG LVO
Prime Minister’s Adviser on European Issues and Head of the Cabinet Office’s European Secretariat, 2000 – 2004

Lord Wilson of Dinton GCB

Cabinet Secretary and Head of the Home Civil Service, 1998 – 2002

These hearings will be open to the general public.

The Inquiry has also requested written evidence from the following individuals: 

Name
Relevant Role
Lord Bach of Lutterworth
Minister for Defence Procurement, June 2001 – May 2005

Air Chief Marshal Sir Anthony Bagnall GBE, KCB
Vice Chief of the Defence Staff, 2001 - 2005

The Rt Hon. The Lord Drayson

Minister of State for Defence Equipment and Support, 2005 - 2007

The Rt Hon. The Lord Goldsmith

Attorney General, 2001 - 2007

Dr Brian Jones


Head of the Nuclear, Biological, Chemical Technical Intelligence Branch, Defence Intelligence Staff 1987-2003
Major General Albert Whitley

Senior British Land Adviser to Coalition Forces and Land Component Commander, 2002 - 2003

07 November, 2010

Chilcot Inquiry to publish submissions

The blog of the European Journal of International Law (EJIL) informs that the Iraq Inquiry will publish some 35 submissions on international law.  Here is the item.   The submissions are to be included in the final report.  These will be of considerable interest but this inquiry is not a court and cannot give an authoritative opinion on any matter of law whether international or domestic.  The inquiry has revealed some interesting information but, no matter how interesting the submissions are, those seeking a statement that Lord Goldsmith's opinion was wrong are likely to be disappointed.  Also, at the end of the day, those British politicians who held office at the time will always be able to refer to the advice given by the Attorney-General.

None of this is to say that Chilcot will be unimportant.  There will be many findings of a non-legal nature.

Please see the earlier posts on this blog relating to the Chilcot Inquiry and, in particular, here.

The whole business of Britain's involvement in Iraq is not going away much as perhaps the new Coalition government might wish to see the back of these "legacy" issues.

The government has released the post mortem and toxicology reports relating to the death of Dr David Kelly - see Ministry of Justice.   The Hutton Inquiry concluded that Kelly committed suicide.  Subsequently, the Coroner closed the inquest on the basis that Hutton had done all that was needed.

There is also a developing case before the High Court in which some 222 Iraqis allege systemic abuse by British Forces when they were captives - see here.

Addendum 15th November:  See The Guardian 14th November which reported the views of Professor Philippe Sands about the Chilcot Inquiry.

Addendum 1st December 2010:  The Wikileaks story broke at the end of November when the contents of thousands of U.S. diplomatic messages got into the public domain.  See The Guardian.  It appears that the U.K. government gave assurances to the U.S. that American interests would be protected during the Chilcot Inquiry - here

23 October, 2010

Iraq: the War Logs

On 19th August 2010, the last US "combat brigade" withdrew from Iraq though about 50,000 US troops remain in the country in what is described as "an advisory capacity." According to the US, they will help to train Iraqi forces in a new mission - "Operation New Dawn" - which will run until the end of 2011.  The mission that ended on 19th August 2010 was known as "Operation Iraqi Freedom," and cost more than $900 billion and saw 4,415 US troops die.  100,000 Iraqi civilians were estimated to be killed, according to the Iraq Body Count website.

Following the withdrawal, there seemed to be a political vacuum which may have enabled Iran to broker a deal which could see a pro-Iran government installed in Iraq.  The Guardian 17th October 2010

The latest major story is the leak of numerous documents which raise major concerns about the behaviour of coalition forces in Iraq.  The Guardian 23rd October - "Iraq, the war logs."  It appears that United Nations officials are calling on President Obama to investigate the allegations - The Guardian 23rd October.

Meanwhile, back in the USA - Obama is fighting mid-term elections.  Viewed from the UK, despite hopeful beginnings in 2008, his administration does not appear to have proved all that popular with many Americans and he has demonstrated a certain hostility toward Britain over the Deep Horizon oil incident when he appeared to lay the blame entirely at the door of BP.  It seems likely that the Republican Party will make gains in the mid-term elections and this will further weaken Obama's position.  All seats in the House of Representatives; one-third of the Senate and 36 State Governorships are on the line.  The ruling Democrats are likely to lose Senate seats and perhaps control of the House of Representatives.

The growth of so-called "Tea Party" candidates is also interesting.  These people are pushing for lower taxes, lower government spending, cutting the deficit and "smaller" government.  Ordinary Americans are fearful for the future: threatened with unemployment.  Retired people are receiving almost nothing on their savings and that has resonance in the UK.  Nevetheless, Americans continue to consume some 400 million gallons of gasoline daily and at prices which, in the UK, would amount to about 40p litre.  Typical UK price is £1.18 litre with further rises on-going and VAT increasing to 20p in January 2011.  If ever there was a way to plunge the U.K. into further recession this is it.

Nevertheless, despite the massive economic mess, it would be ironic if the USA returns to the Republican Party which, in the Presidency of G.W. Bush, embroiled that great nation in the Iraq War and which led to western governments forgetting the fundamental values which they are supposed to stand for.

See also "Frago 242 - a licence to torture"

Why the US has truned against Obama - Telegraph 25th October

Addendum 26th October:  It appears that the Chilcot Inquiry may be recalling former Prime Minister Blair to give further evidence - Guardian 26th October.    When called previously, he was allowed to make "speeches" including warning of the threat posed by Iran which was not germane to the Inquiry's remit.  This demonstrated that Chilcot probably needed a skilled lawyer as counsel to conduct the examination of witnesses.

Further revelations about alleged British interrogation methods have also been revealed - Guardian 26th October

19 October, 2010

The Strategic Defence and Security Review and Spending Review

The government has announced details of the Strategic Defence and Security Review in which it has been engaged since taking office.  The 75 page document may be read here.  This is an important review which will, when implemented, make far reaching changes to Britain's Armed Forces and also to the management of U.K. security in the wider sense.  The outcome of the review is also likely to affect Britain's wider influence in international affairs generally.

The government's spending review (announced Wednesday 20th October) may be read at H.M. TreasuryThe Guardian published their summary of it.

The Defence Review makes it clear that Britain will maintain a military presence in Gibraltar, Cyprus, the South Atlantic (including the Falkland Islands) and Diego Garcia.  It is planned to remove British Forces from Germany by 2020.

Addendum 3rd December:  HMS Ark Royal sails home for the last time. 


The Fighting Temeraire - JMW Turner (1775-1851)

12 October, 2010

A brave rescue attempt which, sadly, went wrong.

There should be no doubt that the attempt to rescue Linda Norgrove was the right and proper thing to do.  No government worthy of the name should abandon its citizens to their captors.  Lessons will be learned but the U.K. and U.S. authorities should not blame themselves for trying.  See The Guardian 12th October.

The Guardian 29th October reported that Linda Norgrove's parents refused to blame the Americans.

See Statement in Parliament by William Hague - Foreign Secretary - 2nd December 2010.

05 October, 2010

Philippe Sands QC makes a submission to Chilcot


Barrister and Law Professor Philippe Sands QC has made a submission to the Chilcot Inquiry - it may be read via The Guardian 5th October 2010.

Addendum 14th October:  A further submission by Alexander Orakhelashvili (University of Birmingham) may be read at The Guardian 14th October.

24 September, 2010

Virginia executed Teresa Lewis

The U.S. state of Viriginia has executed Teresa Lewis - Telegraph 24th September 2010.  As mentioned in the post below, it beggars belief that any supposedly civilised society can be wedded to the death penalty and yet many of the individual U.S. States continue to be.  For instance, since 1976, Texas has carried out 463 executions and Virginia 107.  Information about the death penalty in the USA may be read at - Death Penalty Information Centre.

Even adherents to the death penalty ought to recognise the fundamental unfairness in executing Lewis when the men involved received life imprisonment sentences.  The difference is explained by the view that Lewis was the mastermind or, as the sentencing judge put it, "the head of the serpent".  A further serious concern related to her mental state.  Most reports indicate that she had an IQ of 72.  Below 70 appears to amount to "mental retardation" and the execution of a mentally retarded person would be unconstitutional - (a "cruel and unusual punishment" in breach of the 8th amendment) - see Atkins v Virginia 536 US 304 (2002).  There is actually no definite method of measuring human intelligence and the use of IQ is very problematic - see, for example, here.  Even if one accepted IQ as a measurement, it is not possible to measure it with such precision that it ought to be used as a test determining issues of life or death.

The execution of Lewis does no credit to the law in Virginia or the USA.  At a fundamental level, the execution will not have made Virginia a better place and will not prevent future murders.


Since 1976, the USA has executed 1214 men and 12 women.  Murder continues to be committed.

Writing in The Washington Post 12th September, the lawyer and author John Grisham analysed the Lewis case.  He wrote - "In this case, as in so many capital cases, the imposition of a death sentence had little do with fairness.  Like other death sentences, it depended more upon the assignment of judge and prosecutor, the location of the crime, the quality of the defense counsel, the speed with which a co-defendant struck a deal, the quality of each side's experts and other such factors.

In Virginia, the law is hardly consistent. There have been other cases with similar facts -- a wife and her lover scheme to kill her husband for his money or for life insurance proceeds. But there is no precedent for the wife being sentenced to death. Such inconsistencies mock the idea that ours is a system grounded in equality before the law" 

Further links:

Death Penalty Information Centre

U.K. based United States Death Penalty Training courses.

The work of AMICUS to assist lawyers working on U.S. death penalty cases is vital.  Their website merits a good look and their work merits support.

Law and Lawyers - the Linda Carty case.

20 September, 2010

It beggars belief ... practices which ought to be ended ...


The Death Penalty

It beggars belief that a supposedly civilised nation such as the United States of America still continues in many of its States to cling to the death penalty.

Robert McDonnell (Governor of Virginia) has refused a reprieve for Teresa Lewis who is likely to die by lethal injection on Thursday 23rd September.  See The Guardian 19th September 2010.  Virginia has not executed a woman since 1912.  An appeal to the U.S. Supreme Court remains Lewis's only possibility of surviving.  Even though Lewis stands convicted of a very serious crime (conspiracy to murder) it is notable that the men who actually carried out the killings in pursuance of the agreement with Lewis received life sentences.  One of them confessed in order to avoid the death penalty but Lewis also pleaded guilty.

Here is the statement of Governor McDonnell.

Addendum 23rd September - The Supreme Court of the United States refused Lewis's application for a stay of the execution though two of the justices would have allowed it - see here.   See also New York Times 21st September 2010 and Amnesty International

Deportation with Assurances

It also beggars belief that a nation such as the United Kingdom is continuing to actively pursue so-called Memoranda of Understanding so that individuals can be deported to various States which have absymal human rights records including the use of torture.  See The Guardian 17th September 2010.  It also appears, from a debate in Parliament on 5th July 2010 that the British government is negotiating further memoranda.  This is an absymal practice which ought to stop immediately since it only lends encouragement to the hideous practice of torture.

For the debate see Hansard 5th July 2010 column 74W - here - question by Mr Dominic Raab MP (for Esher and Walton) to the Immigration Minister Mr Damian Green MP (for Ashford).


Mr Raab: To ask the Secretary of State for the Home Department (1) with which countries the UK has a memorandum of understanding to facilitate the return of foreign nationals without the risk of torture or other inhuman and degrading treatment;

(2) with which countries the Government is negotiating with a view to signing a memorandum of understanding to facilitate the return of foreign nationals without the risk of torture or other inhuman or degrading treatment.

Damian Green: The UK has signed Memoranda of Understanding with Ethiopia, Jordan, Lebanon and Libya which set out in general terms the manner in which an individual deported to or from the UK and one of those countries under the terms of those Memoranda will be treated. Similar arrangements, which were set out in an exchange of letters between the then Prime Minister and the President of Algeria in July 2006, apply in respect of deportations from the UK to that country.

The texts of these Memoranda and of the exchange of letters are available on the Foreign and Commonwealth Office's website:

http://www.fco.gov.uk/en/global-issues/counter-terrorism-policy/deportation-with-assurances/


We have made it clear that we intend to extend the practice of seeking assurances to more countries, but it would not be appropriate to identify the countries concerned until negotiations have been successfully concluded.

For the serious student, there is an interesting and critical article in the Cambridge Student Law Review Volume 6 No.1 (2010) at page 226 - "The SIAC, Deportation and European Law"

28 August, 2010

Chilcot Inquiry criticised over civilian casualties

It is almost certainly true to say that nobody actually knows how many Iraqi civilian deaths were caused as a result of the military action in Iraq.  The Chilcot Inquiry has been accused of paying derisory attention to this issue - see The Guardian 27th August 2010.   See also the Guardian's page on Iraq. There appears to be nothing in the Inquiry's terms of reference which would prevent them from examining this matter though the inquiry is concerned primarily with the period Summer 2001 to the end of July 2009 - see here.

The Chilcot Inquiry has now finished hearing evidence.  140 witnesses have been heard and this has concentrated mainly on the decision-making in London and Washington.  The Inquiry team are to visit Iraq so it is possible that their eventual report may contain something about the Iraqi perspective.

The U.S. has now scaled down its troop numbers in Iraq to about 50,000 who, according to BBC Middle East News 19th August 2010, are there to "advise Iraqi forces and protect US interests".  The same report notes that the US has a trillion dollar investment in Iraq to protect.

Some reports of very recent events in Iraq may be read at Iraqi Coalition Casualty Count (icasualties.org) and at Iraq Today.  It is clear that Iraq is far from being a settled place and it is reported that there have been Al Qaeda attacks across 13 cities and towns - see New Zealand Herald 27th August 2010.  This casts considerable doubt about Iraqi government claims that security has improved.

See also Operation Iraqi Freedom

14 August, 2010

War criminals serving their sentences in Britain

It is possible for certain convicted war criminals to serve their sentences in the U.K. and, sometimes, the prisoner will have had no particular prior connection with the U.K.  The Manchester Evening News 13th August 2010 reported the outcome of a case concerning Radislav Krstić see "Serbian War Criminal wins legal battle in Manchester Court".  The case in Manchester was a challenge to Krstić's status as a Category A prisoner and a decision to continue that status was quashed.

In 2004, Krstić was convicted (on appeal) by the International Criminal Tribunal for Former Yugoslavia (ICTY) of aiding and abetting genocide and was sentenced to 35 years imprisonment which he is currently serving in England.  He held high rank in the Serbian military and played a leading role in Krivaja 95. The ICTY website carries details of the case against Krstić and demonstrates the considerable care which the Tribunal took to ensure due process - see here.

The ICTY was set up in 1993 and is the first war crimes tribunal to have been created by the United Nations and the first international war crimes tribunal since Nuremberg and Tokyo.  It was established under the United Nations Charter Article VII.  Most of the cases before the ICTY have concerned crimes alleged against Serbs and Bosnian Serbs but the tribunal has also dealt with cases against Croats, Bosnian Muslimes and Kosovo Albanians for crimes against Serbs and others.  The United Nations has recently extended the life of the tribunal to the end of 2012.  Some 37 cases remain on going including that of Radovan Karadžić.

International criminal justice would not be achievable without countries being willing to hold those convicted in prison. The agreement with the U.K. may be seen here.  Similar agreements exist with a number of other countries.  Over the coming years there will be on-going issues about the status of such prisoners, the security risks involved and eventually questions about parole/early release.  Krstić was attacked in Wakefield Prison earlier this year - see Telegraph 8th May.

On the subject of International Criminal Tribunals - there is a challenging book "Fact finding without facts" which considers just how various international tribunals have dealt with this crucial aspect of trials - see Opinio Juris.

See Garden Court Chambers for a report on the Krstić case in Manchester.
Case report - Krstić v Secretary of State for Justice [2010] EWHC 2125 (Admin)

12 August, 2010

Special Court for Sierra Leone: Prosecution of Charles Taylor

The so-called "super model" Naomi Campbell gave evidence at the trial in the Special Court for Sierra Leone of Charles Taylor - see The Guardian 5th August 2010.  The court was set up following UN Security Council Resolution 1315 (2000).  According to the court's statute , it has power "to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30th November 1996 ..."

See Prosecutor v Charles Taylor where it is explained why the case against Taylor is being heard at The Hague.

Proceedings may be followed via the court's website.
Further material on international humanitarian law.

Addendum 15th August: Naomi Campbell given protection - The Guardian

28 July, 2010

The killing fields of Cambodia - "justice" at last ?

Appalling cruelty from one individual to his fellow men seems to be endemic in the human race.  This was never more so than in Cambodia (formerly Kampuchea) under the Khmer Rouge regime of the 1970s.

From 1975 to 1979 the S-21 Security Centre operated in Cambodia.  Over 12,000 people were ruthlessly killed by the Khmer Rouge regime.  The leader of S-21, an appalling individual called Kaing Guek Eav (alias Duch), has been sentenced to 35 years imprisonment for his prominent role in these atrocities which amounted to crimes against humanity and grave breaches of the Geneva Conventions 1949.  See The Guardian 25th July 2010.

He was sentenced by the "Extraordinary Chamber in the Courts of Cambodia" which is a national court but United Nations appointed judges and prosecutors were used.

In passing the sentence, the court found that there was mitigation: co-operation with the Chamber; admission of responsibility; limited expressions of remorse and the coercive atmosphere in the country at the time and potential for rehabilitation.  The informed reader may well doubt some of those and, even if they are accepted, the reader may well feel that the immense seriousness of his criminality merited nothing less than the remainder of his life in prison.  It is little wonder that the few known survivors are unhappy with the outcome - see BBC "Tears and Disbelief at his sentence".  The court's statement may be read on their website - see here.

It is reported that Duch will appeal against his sentence - BBC 28th July.  This may be his right but it hardly shows a jot of remorse.

Addendum 30th July:   A film "Enemies of the People" deals with aspects of the Khmer Rouge regime in Kampuchea.  The film is co-directed by Thet Sambath.  An interesting and rather moving article appeared in The Guardian 27th July and see also New York Times 29th July.  Thet Sambath's views about justice not being vindictive are very powerful.  In Cambodia there is a museum at Tuol Seng dedicated to the genocide which took place.

Addendum 28th March 2011:   The appeal by Eav against his sentence has commenced.  In a heavily criticised move, it has already been commuted to 19 years imprisonment - The Guardian 28th March 2011.

Addendum 2nd February 2012:  Eav's sentence was increased to life imprisonment to reflect to gravity of his offending - BBC 2nd February 2012.

23 July, 2010

Kosovo

The International Court of Justice (ICJ) has issued an Advisory Opinion relating to Kosovo which declared independence from Serbia on 17th February 2008.  Here is a link to the opinion which is to the effect that the declaration of independence did not violate international law.  This is far from being a ruling that Kosovo is an independent State - see here for the views of international law expert Professor Paolo Gaeta

The U.K. maintains an Embassy in Kosovo and William Hague (Foreign Secretary) has commented on the ICJ ruling.  Hague said - "The UK holds firm in its conviction that Kosovo's status as a State and with its territory defined by its existing borders is a positive force for stability in the Western Balkans. I urge both Kosovo and Serbia to embrace this opportunity to reconcile and to become good neighbours."

The EULEX KOSOVO website is an interesting source of information. 

See also "The World Court's Non-Opinion" - article on Opinio Juris

20 July, 2010

Chilcot: Former Director of MI5 said that Iraq "radicalised" Muslims

In evidence to the Chilcot Inquiry, the former Director of MI5 (Dame Eliza Manningham-Buller) said that the Iraq War "radicalised" Muslims.  See The Guardian 20th July and analysis of her evidence by Richard Norton-Taylor - The Guardian 20th July.  To be frank, most ordinary people will probably find this entirely unsurprising.  The U.K. has a considerable Muslim population and their feelings appeared to count for little in the eyes of the Blair government when it decided to join the USA in the Iraq occupation.

Further on this story - The Independent 21st July 2010 - which argues that Manningham-Buller has "destroyed" Blair's argument that the Iraq War would make the world safer.

15 July, 2010

So-called "Detainee Legacy Issues" ...

The Guardian 15th July 2010 reports on documents made public in a High Court case brought by certain former detainees at Guantanamo Bay, Cuba.  Key passages from the documents may be seen on the Guardian's website - here.  The Guardian's report states:

"The true extent of the Labour government's involvement in the illegal abduction and torture of its own citizens after the al-Qaida attacks of September 2001 has been spelled out in stark detail with the disclosure during high court proceedings of a mass of highly classified documents.
 Previously secret papers that have been disclosed include a number implicating Tony Blair's office in many of the events that are to be the subject of the judicial inquiry that David Cameron announced last week.
Among the most damning documents are a series of interrogation reports from MI5 officers that betray their disregard for the suffering of a British resident whom they were questioning at a US airbase in Afghanistan. The documents also show that the officers were content to see the mistreatment continue."
The present government clearly wishes that this litigation would come to an end and that the cases are settled by mediation.  An inquiry has been announced (see here) to be chaired by Sir Peter Gibson (a former Lord Justice of Appeal).  The government appears to refer to these cases as "detainee legacy issues".  Of course, the cases are one aspect of the appalling mess left behind by the Labour Government but it is the United Kingdom (as a State) which will have to bear any eventual responsibility and it is the U.K. which is a signatory to the international Convention on Torture.

The UK Human Rights Blog (prepared by barristers at 1 Crown Office Row) covers this story.

The possible involvement of Jack Straw and Downing Street in the rendition to Guantanamo of Martin Mubanga is also of concern - see here.  

There is now more than adequate material to say that the former Labour government has definitely got a "case to answer" and it is high time that the public heard the truth instead of government always hiding behind the mantra of national security.  In the aftermath of "9/11" some western politicians appear to have forgotten just what our traditional values are.

10 July, 2010

Her Majesty addressed the United Nations General Assembly

Her Majesty The Queen addressed the U.N. General Assembly on 6th July 2010.  Her visit may be viewed on the Monarchy website.  His Excellency the Secretary-General of the U.N. referred to her as a symbol of "grace, constancy and dignity".  Of that there is no doubt.  See Ban Ki Moon's comments.

09 July, 2010

Complicity in Torture - Inquiry announced by UK government


On 6th July, the Prime Minister (David Cameron) announced that there would be an inquiry into the question of British complicity in torture conducted abroad - BBC 6th July. The Guardian 6th July also reported on this important development - Guardian 6th July.  There has been serious concern over a number of years about whether Britain has been in some way complicit in either torture or in extraordinary rendition.  For example, Binyam Mohamed claimed that British agents put questions (via the CIA) to his interrogators.  The previous government failed to deal adequately with these allegations and there is little doubt that this has done damage to Britain's standing in world opinion.

This inquiry is to be led by former appeal court judge Sir Peter Gibson who is now the Intelligence Services Commissioner.  Therein lies what is perhaps the first criticism of the inquiry.  As the civil rights body Liberty put it - "his continuing role as Intelligence Services Commissioner since 2006 ... will hardly give torture victims and the wider public the sense of a fresh pair of eyes on a sore that has festered in the shadows for so long".  He is to be assisted by Dame Janet Paraskeva (Civil Service Commissioner) and Peter Riddell (a former journalist).

No prosecutions can result since witnesses will be granted indemnity.  (Note: This was also done in relation to the Bloody Sunday Inquiry in Northern Ireland).  Interestingly, it is now some 18 months since the Attorney-General of the day was reported to be considering ordering an investigation into allegations that British agents fed questions, via the CIA, to those interrogating Binyam Mohamed - see Telegraph February 2009.

Cogent criticisms of the inquiry are set out by REPRIEVE.  Against a background of such criticism it is to be doubted that the inquiry will convince right-thinking public opinion.  However, the announcement of the inquiry is welcome.  It is charged with reporting by the end of this year.

With regard to publishing the inquiry findings, it is worth noting that Sir Peter Gibson conducted a review in connection with Intelligence and the Omagh Bombings in 1998 - see Northern Ireland Office. His key   findings were put in the public domain.

See UK Human Rights Blog - for a very good article covering in full David Cameron's statement
See also Watching the Law - May 2010.

Addendum: 20th July 2010 - the human rights organisation "REPRIEVE" is calling for Sir Peter Gibson to stand down from this inquiry.  They have a point.

Addendum: 29th July 2010 - the government has rejected the accusation that Sir Peter Gibson might be compromised in conducting the inquiry - see The Guardian 29th July.   They see the attack by REPRIEVE as "unwarranted and baseless".  They add that, since he is not sitting as a judge conducting litigation or a statutory inquiry, there is no legal obligation to satisfy the tests of impartiality and independence which would apply in those situations.  I still think that REPRIEVE have a point but there it is.

02 July, 2010

Foreign Affairs and the new government: No.3

The Foreign Secretary (William Hague) has set out the foreign policy approach which the new British government will adopt.  See Foreign and Commonwealth Office 2nd July 2010.  The speech received a detailed look by The Independent 2nd July 2010.  Hague referred to the U.K. maintaining its relationship with the U.S.A. but it would be a "solid not slavish" relationship.  There will be greater emphasis on the European Union and the government would seek to increase Britain's influence by increasing the number of officials working for the E.U.  (The U.K. is 12% of the E.U. population - which now comprises 27 nations - but has 1.8% of the staff).  There would also be increased diplomacy with India, China, Brazil and Latin American nations.  Of course, those are the growing economies of the world and good relationships with them will be vital in the decades ahead.  However, as the Independent article notes, the U.K. cannot enter into international trade arrangements on its own but acts via the E.U.  Given the current economic climate in the U.K. it is difficult to see where the resources will come from in order to increase diplomacy but, in many ways, the U.K. cannot afford not to do so.

01 July, 2010

How Goldsmith changed advice on the legality of war

The Independent 1st July 2010 published an article showing the steps through which Lord Goldsmith QC came to his final advice about the legality of the Iraq War.  This topic is discussed in greater detail in the post below.

Meanwhile, the events surrounding Iraq continue to produce points of controversy - e.g. the Dr Kelly Inquiry is in the news again - see Daily Mail 1st July.  The Supreme Court of the U.K. has reversed the Court of Appeal in a case concerning the death of a soldier in Iraq - see The Guardian 1st JulyThe Guardian 1st July also comments about the Iraq Inquiry and Goldsmith's advice, pointing out that the Iraq Inquiry is all about the political context in which Goldsmith operated.  Yet another article covers the refusal of the British Ministry of Defence to hold an inquiry into certain Iraqi civilian deaths which occurred when the detainees were under British control - see here.

Meanwhile, former Prime Minister Tony Blair, continues to collect honours in recognition of his work for "liberty", the latest being the Liberty Medal awarded by the U.S. National Constitution Centre - see Telegraph 1st July.  Blair was, along with U.S. President George W. Bush, one of the architects of the military action in Iraq from 2003.

30 June, 2010

Was the Iraq War Lawful? Chilcot Inquiry to consult international lawyers

The Iraq Inquiry has resumed its hearings in London.  Interestingly, Sir John Chilcot (the Inquiry Chairman) informed the inquiry that an open invitation had been issued to international lawyers to comment on the grounds relied on by the British government in undertaking military action in Iraq.  The Inquiry has also approached the British Institute for International and Comparative Law and the Oxford University Public International Law Discussion Group.

Those views, if eventually published, will be of considerable interest.  However, this Inquiry is not a court and will not be able to make an authoritative ruling on the still hotly disputed question of legality.

On 7th March 2003, the Attorney-General (Lord Goldsmith QC) offered the British government a carefully phrased opinion that the "safest legal course" would be to obtain a UNSCR authorising the use of force - read the opinion.  The Attorney went on to state that "a reasonable case" could be made that Resolution 1441 was capable of reviving the authorisation in Resolution 678 without a further resolution. {The Attorney's opinion did not deal with argument that UNSCR 678 was redundant after UNSCR 687 was passed in April 1991.  If 678 was redundant then there was nothing for 1441 to revive}.

See  UNSCR 1441 and  UNSCR 678 and UNSCR 687

It was plain that the British Chief of the Defence Staff wanted a stronger statement that military action would be lawful and this was requested on 10th March.  On 17th March, the Attorney spoke in the House of Lords and advised that there was a lawful basis without a further resolution - see National Archives A.G. Opinion 17th March , BBC and also see Hansard.

The Inquiry heard Lord Goldsmith's evidence on 27th January 2010 and, the previous day, heard from Sir Michael Wood (Legal Adviser, Foreign Office, 2001-6 and Elizabeth Wilmshurst (Deputy Legal Adviser, Foreign Office, 2001-3) - see here.  Wilmshurst resigned her post at the Foreign Office since it was her opinion that the war would be unlawful.

The BBC shows a short extract of Lord Goldsmith's evidence to the Iraq Inquiry.  In this extract he explains why his position altered from his "reasonable case" view of 7th March to his firmer view of 17th March 2003 that the war was lawful.  Essentially, the military (Chief of the Defence Staff) and the Civil Service had asked for a clear statement about the legality.  Goldsmith told the Iraq Inquiry that it was reasonable for them to ask for this.

A detailed study of this question is to be found in the book "The Iraq War and International Law" - (Eds. Phil Shiner and Andrew Williams - Hart Publishing, 2008.)  Having retired as senior "law lord", Lord Bingham of Cornhill gave the annual Grotius Lecture at the British Institute of International and Comparative Law.  That was on 17th November 2008 and he considered that the invasion of Iraq was a serious violation of international law - see here.

Whether the Attorney was right is one question but it is worth noting that the Attorney is the senior legal adviser to the British government.  Ultimately, it is his view that guides the government on questions of the law.

Regrettably, there seems to be no evidence of the British government consulting with eminent and independent international lawyers back in 2003.  It is somewhat ironic that the Chicot Inquiry is now doing precisely that as part of its ex post facto analysis of these immense events which resulted in the deaths of many thousands and which may have destabilised the structure set up by the United Nations Charter to regulate the use of force.  [30th June 2010].

13 June, 2010

Deep Horizon: the blame must be shared.

Back in February 2010, Watching the Law took a look at The Falkland Islands and what, from the public perception in the UK, looked like American support for Argentina in its claim that it has sovereignty over those islands.  Underlying this stance (and probably much of American foreign policy) appears to be the insatiable demand in the USA for oil and comparatively cheap fuel - petrol is currently retailing on American forecourts at around 2.75 to 3 dollars per gallon.  The USA uses over 400 million gallons of petrol per day.

In his First State of the Union Address, Barack Obama referred to the need to open new offshore areas for oil and gas development.   This strategy is also aimed at reducing America's dependence on imported oil.  To that end, some 167 million acres of ocean along the Atlantic coast together with areas in the Gulf of Mexico and areas to the north of Alaska were to be the subject of drilling concessions.  This Environmental blog appears to cover this strategy very well.  Much of the plan was opposed by environmentalists - see The Guardian 31st March 2010 and The Daily Mail 31st March 2010.

Drilling in deep water is a difficult, highly technical and risk-ridden enterprise.    BP is one company which engages in this work and its operations necessarily use many sub-contractors.   Following the Deep Horizon oil rig explosion on 20th April 2010, President Obama has engaged in massively damaging rhetoric against BP.  This was clearly aimed at Obama trying to maintain political credibility in the USA. and to divert attention from any role played by his own administration.

It is relevant to ask whether, amongst others, the USA government properly addressed the risks involved in drilling of this type.  In a balanced article, The Independent 13th June 2010, concludes that they are far from free of blame.  This must be correct and, as in many things, the legal blame should fall across several bodies involved such as the US Department of the Interior.  More can be read at Institute for Catastrophic Risk Management

See the BP website for further information about Deep Horizon.  Meanwhile, Obama has returned to a moratorium on further drilling - The Guardian 28th May.  How long that will last is a moot point but it seems likely that it will end sooner rather than later and that politicians will be at pains to inform the public that the risks have been addressed and are now manageable.

Links:

See US Congress - House of Representatives Committee on Energy and Commerce 10th May. Much of the detail of what occurred can be read in this document.

See White House - discussion between President Obama and Prime Minister Cameron.

Guardian - "Deepwater Horizon Oil Spill" - access to articles etc. relating to Deep Horizon.

Addendum: - 16th June 2010:  Obama addressed the USA on the crisis and vowed to make BP pay for it - see Telegraph 16th June.

Addendum - 17th June 2010:  BP Executives met with Obama on 16th June and BP agreed to put money into a fund.  Dividends will not be paid to shareholders this year - see The Guardian.   The Telegraph looked at how BP attempted to spread blame for this event.  The Daily Mail took a look at the many companies actually involved including the American Giant Halliburton which had responsibilities for the cement plug.