Tuesday, November 12, 2013

613 Human Rights judges, lawyers and World Gov't academics call for the Bombing of Syria (as they did of Libya)

Human Rights judges, lawyers and World Gov't academics call for the
Bombing of Syria (as they did of Libya)

Newsletter published on 23 September 2013

(1) Geoffrey Robertson, a former UN judge, calls for the Bombing of Syria
(2) Geoffrey Robertson: Assad should face international justice
(3) Bomb Syria, even if it contravenes UN Charter - Ian Hurd (NYT)
(4) Geoffrey Robertson for intervention in Libya
(5) Michael Kirby, for the UN, castigates North Korea for Human Rights
(6) Kenya decides to withdraw from the ICC (World Court)

(1) Geoffrey Robertson, a former UN judge, calls for the Bombing of Syria


Three Key Questions on Syria

by Geoffrey Robertson Aug 30, 2013 3:15 PM EDT

Now that the U.K. has stunningly backed out of intervention on Syria,
the U.S., France, and others must answer these legal quagmires before
committing to strikes.

David Cameron thought that recalling his Parliament to approve the
bombing of Assad for using chemical weapons would be a slam dunk. The
traditional British reaction to outrages by Johnny Foreigner has been to
“send a gunboat”—especially if this can be done at U.S. expense.

What Cameron failed to realize was the depth of his country’s guilt over
being suckered by Tony Blair into Bush’s war on Saddam over nonexistent
WMDs. This guilt has deepened over a decade with every day’s report from
Iraq of fresh civilian casualties. So a tipping point came last Tuesday
when Blair himself, in a Murdoch mouthpiece (The Times) called for the
bombing of Syria: politicians of all parties began to be spooked by
their memories of being deceived by fabricated intelligence in dodgy
dossiers. “That was George W. Bush, this is Barack Obama” cried one
veteran (Paddy Ashdown) in exasperation, but in vain. Britain is unwilling.

That does not relieve the U.S., and other allies like France unburdened
by Iraqi war guilt, of the urgent need to answer three legal questions:

First, can force be used, without Security Council approval, to deter
Syria from perpetrating further crimes against humanity? Secondly, how
can culpability for mass-murdering a thousand civilians by poison gas be
proved against the Assad regime beyond reasonable doubt? Thirdly, what
punishment can NATO and the Arab League mete out to that government, if
it is guilty, to deter further use of chemical weapons without causing
more civilian casualties or tilting the civil war in Syria in favor of
the opposition?

The first question is easy to answer. There is and always has been a
right to intervene to stop or deter an ongoing crime against humanity.
This was asserted in terms by Oliver Cromwell and his foreign secretary
(the poet Milton) as long ago as 1655, when he threatened to invade
Savoy unless its Duke stopped killing Protestants who refused to convert
to Catholicism. Britain exercised its right of humanitarian intervention
when it stopped the slave trade by intercepting foreign ships and
attacking foreign ports, and it led a coalition of the willing to end
Ottoman atrocities (and liberate Greece) in 1827. As Theodore Roosevelt
put it in 1904 when justifying the American intervention to stop Spanish
atrocities in Cuba, there are occasions when “the indignant pity of the
civilized world” imposes a duty to intervene “against crimes of peculiar

All this was long before the U.N. Charter, which did not affect the
right of member states to stop an international crime. Idi Amin’s mass
murder was ended by an invasion unauthorized by the Security Council, as
was genocide and mass rape in Bangladesh. NATO set up safe havens to
protect the Kurds in defiance of Saddam's Iraqi sovereignty, without
bothering to endure a Russian and Chinese veto at the Security Council.

Kosovo is a good example of legitimate NATO action to end a crime
against humanity—that of Milosevic’s ethnic cleansing. With the council
again pole-axed by the Russian veto, NATO simply began bombing and
Russia was forced to move a motion to condemn it, which failed
miserably. If NATO (minus the U.K. but plus Turkey) and the Arab League
can find a way to punish Assad, which does not involve collateral
damage, they should get on with it and leave Russia on the back foot,
without a Security Council resolution to condemn their action.
International law does not prevent action to stop international crime.

But, in answer to the second question, there must be proof beyond
reasonable doubt that Assad’s forces were responsible for such a crime.
The U.K. Attorney General talks of “convincing evidence generally
accepted by the international community,” but this is not sufficient.
The Security Council itself is a hopeless tribunal for deciding guilt:
Colin Powell deceived the council (and, it seems, himself) with his
“evidence” for Saddam’s WMDs. The world is sick of “dodgy dossiers” and
does not believe MI6 and the CIA without proof, preferably by way of a
reasoned judgment from a respected tribunal. There could be a decision
by a panel of independent international judges convened by the Secretary
General to decide on Syrian government culpability, excluding any
possibility that the victims seen on television are graduates of the al
Qaeda school of acting.

The key concern of the U.K. Parliament, when on Thursday night it
refused to approve the use of force against Syria, was over Assad’s
guilt. A Joint Intelligence Committee assessment, from open sources and
seeming (but Western-minded) logic, concluded that this was “very
likely”: 75 percent to 85 percent. That would be enough to win a civil
action for damages on the balance of probabilities but not to convict of
a crime “beyond reasonable doubt.” That necessary standard of proof may
be forthcoming from the weapons inspectors (despite John Kerry’s doubts)
when they report in a few weeks’ time. So it might be prudent for the
Obama administration wait for the weapons inspectors, unlike George W.
Bush in 2003, and organize a punishment that fits the crime only when
the crime can be proved? If there is proof in “secret” sources (e.g.,
telephone traffic between Assad and his generals, intercepted by NSA or
the Israelis) then the transcripts will just have to be made public:
after Iraq there can be no reliance on official reassurances unless the
public can examine the evidence for itself.

International law requires that any intervention to stop crimes against
humanity must be strictly limited and “proportionate” to the objective,
i.e., appropriate to and logically connected with its achievement and
not such as might promote regime change or the death of more civilians.
This is easy to state, as a legal proposition, but may in logistical
terms be impossible to achieve. (Even an attempt to destroy a
chemical-weapons dump may be disastrous, if the poison gas is released
into the atmosphere.) How many military bases are to be attacked? Is
NATO going to destroy $1 billion of military equipment and threaten
Assad that, if chemical weapons are used again, it will destroy $25
billion worth? It is these imponderables that international law cannot

The fundamental rules of civilized humanity now include a prohibition on
the use of poison gas against civilians—a prohibition barbarically
breached by Saddam Hussein in 1988 when he gassed 7,000 Kurds at
Halebja, only to be rewarded the following year by a U.S. trade mission
led by Donald Rumsfeld. If we are serious about banning this horrific
war crime, then the ban must be enforced. That is the duty of the
Security Council, under Chapter VII of the U.N. Charter. But the council
is stymied because Russia irresponsibly uses its “Great Power” veto to
protect its investment in Assad’s military rule. The responsibility to
protect Syria’s civilians against becoming victims of crimes by their
own state thus devolves upon regional organizations like NATO and the
Arab League.

That Assad and his generals are war criminals has been clear ever since
they gunned down the first thousand or so peaceful protesters before the
civil war started. Courageous protesters then held up banners demanding
“Assad to the Hague.” But the Security Council turned its back on them.
Not one of its members bothered to suggest that the situation in Syria
should be referred to the Prosecutor of the International Criminal
Court. Two years on, the civil war has claimed over 100,000 victims and
has no end in sight. Diplomacy and United Nations negotiations, from
Kofi Annan to Lakhdar Brahimi, have all failed. NATO strikes to punish
chemical-weapons use will not end this war and may have unforeseen
consequences. But at least such action will create the precedent that
should have been set at Halebja, providing a basis for deterring
dictators not only from using chemical weapons but also from stockpiling
them in the first place.

Geoffrey Robertson is a former U.N. appeals judge and author of Crimes
Against Humanity: The Struggle for Global Justice (Penguin, and the New
Press). His latest book is Mullahs without Mercy: Human Right and
Nuclear Weapons (Biteback/ Random House, 2012).

For inquiries, please contact The Daily Beast at

(2) Geoffrey Robertson: Assad should face international justice


The European Union, following the United States, this week imposed some
half-hearted sanctions – travel bans, money freezes and the like – on a
handful of President Assad's cronies, but not on Assad himself. This
will do nothing to change his regime's policy of murdering peaceful
protesters. They also imposed an arms ban, which will merely stop the
protesters from defending themselves.

The use of lethal force to disperse a one-off demonstration, like Bloody
Sunday, is not an international crime. But a month of Bloody Sundays,
the like of which, in Syria, has produced more than 800 dead so far – is
a different matter. It counts as a crime against humanity, and it is now
time for the Security Council to refer President Assad and certain
members of his family to the International Criminal Court.

The uprisings against the Syrian regime do not qualify for the
humanitarian protections of the law of war: they do not yet amount to an
international armed conflict (although Iran is alleged to be teaching
them how to crush a protest movement) and have not even reached the
stage at which they can be legally classified as a civil war. The
government's actions do not attract the duty to intervene to stop
genocide, as the Syrian Muslin Brotherhood has claimed, because they are
directed against political dissidents, not opponents exterminated on
account of their race or ethnicity. However, a persistent brutal
crackdown on a protest movement does amount to a crime against humanity,
contrary to Article 7 of the ICC Treaty, if multiple acts of murder or
persecution are committed, pursuant to state policy, "as part of a
widespread or systematic attack against any civilian population". The
deliberate decision to use tanks, machine guns and snipers against
un-armed crowds, repeatedly over seven weeks, is clear evidence of the
commission of exactly such a crime.

President Bashar al-Assad bears command responsibility for these
killings and his exclusion from the sanctions is ridiculous. It is no
use anymore for Mr Hague to claim him as a would-be reformer boxed in by
hard-liners. Nor is he "the blind ophthalmologist" (his previous
profession) carried along by events. He made the decision to stop the
protests by lethal force in order to protect his family's power and
wealth from democratic challenge. His younger brother Maher, who
commands the army's Fourth mechanical division which committed the Deraa
atrocities, is another prime perpetrator together with relatives who run
his brutal secret police, (the Mukhabarat) and others from his minority
Alamite sect who are part of his inner circle. Even his wife, the
fragrant Queens College (Harley Street) educated Asma al-Assad, deserves
to be investigated as part of that circle. Credulous journalists on
women's magazines have extolled her charity and compassion, but she
remains in Syria, providing private aid and comfort to her brutal
husband. (In international criminal law, Caesar's wife is not above

The rules on the use of force and firearms during civil arrest were
settled by the UN in 1990. Armies and police must only resort to lethal
force when "absolutely necessary" in defence of themselves or others
against the threat of death or serious injury. They have a duty to act
proportionately to equip themselves with non-lethal incapacitating
weapons like water cannon and to use these first. They must respect and
preserve human life – for example by ensuring immediate medical
treatment for the injured and by punishing any official guilty of
arbitrary killing. "Internal political instability may not be invoked to
justify any departure from these basic principles" says the UN rules and
they apply "in the dispersal of assemblies that are unlawful but not
violent". Even in the case of violent demonstrations, lethal force may
be used only "when strictly unavoidable in order to protect life".

The blatant breach of these basic principles by the Syrian authorities
has been accompanied by new forms of viciousness that require
international condemnation. As in Bahrain, the arrest of doctors and
nurses for performing their Hippocratic duties to attend the injured is
particularly deplorable. So too is the tactic of leaving dead bodies in
the street so their sight and stench will discourage others. Shooting or
arresting civilians for taking picture of army brutality on cell phones
or hand-held cameras – in the hope, no doubt, of providing evidence for
an international court– should also be deplored. Some seven thousand
citizens have already been arrested and placed in jails where torture is
alleged to be routine.

The regime has banned all foreign media from the country – a tactic most
recently deployed by the Sri Lankan government to ensure that there
would be no impartial eyewitnesses to its massacre of Tamils. The Red
Cross was allowed limited access, as it is in Syria, but only because of
its iron-clad promise to keep all its observations secret – thus raising
a serious question about its value in protecting civilians and prisoners.

In these circumstances, of an ongoing crime against humanity, the duty
of the Security Council is to refer the situation in Syria to the ICC
prosecutor as it did with Darfur, and has recently done with Libya under
Resolution 1970. Sanctions will have little effect and the UN's Human
Rights Council (boasting such members as North Korea, Iran, Cuba and
Pakistan, as well as Russia and China) has already rejected a request by
the High Commissioner for Human Rights for a full-scale international
investigation. Instead, it is sending a "fact-finding" mission but
nothing more, because realpolitik dictates that Assad the Syrian tyrant
is safer than unpredictable developments which may follow his overthrow.
It is unlikely that the "fact finders" (who will not include
professional investigators or prosecutors), will find many people who
will dare to tell them the true facts, for fear of joining the eight
hundred dead and seven thousand already in prison.

This is a weak-willed response that betrays the UN's "responsibility to
protect" doctrine. Nobody is suggesting "boots on the ground' in
Damascus. At this stage, an ICC referral would mean the collection of
evidence by professional investigators, whose work may well cause the
ICC prosecutor to seek judicial approval for the indictment of Assad and
his commanders. The very existence of an ICC inquiry would put pressure
on the regime to reverse its "shoot to kill" policy and if an indictment
is judicially approved this would set an important precedent for the
rights of peaceful protesters, currently at risk in Yemen, Bahrain, and
elsewhere. Assad may not be seated in the Hague dock any time soon, but
if an indictment is in the offing, he may hesitate to add to its counts.
The possibility of justice is more likely to deter a bloody tyrant than
a travel ban on a few of his cronies.

Geoffrey Robertson QC is a former UN judge and author of 'Crimes Against
Humanity' (Penguin)

(3) Bomb Syria, even if it contravenes UN Charter - Ian Hurd (NYT)

Bomb Syria, Even if It Is Illegal



Published: August 27, 2013

EVANSTON, Ill. — THE latest atrocities in the Syrian civil war, which
has killed more than 100,000 people, demand an urgent response to deter
further massacres and to punish President Bashar al-Assad. But there is
widespread confusion over the legal basis for the use of force in these
terrible circumstances. As a legal matter, the Syrian government’s use
of chemical weapons does not automatically justify armed intervention by
the United States.

There are moral reasons for disregarding the law, and I believe the
Obama administration should intervene in Syria. But it should not
pretend that there is a legal justification in existing law. Secretary
of State John Kerry seemed to do just that on Monday, when he said of
the use of chemical weapons, “This international norm cannot be violated
without consequences.” His use of the word “norm,” instead of “law,” is

Syria is a party to neither the Biological Weapons Convention of 1972
nor the Chemical Weapons Convention of 1993, and even if it were, the
treaties rely on the United Nations Security Council to enforce them — a
major flaw. Syria is a party to the Geneva Protocol, a 1925 treaty that
bans the use of toxic gases in wars. But this treaty was designed after
World War I with international war in mind, not internal conflicts.

What about the claim that, treaties aside, chemical weapons are
inherently prohibited? While some acts — genocide, slavery and piracy —
are considered unlawful regardless of treaties, chemical weapons are not
yet in this category. As many as 10 countries have stocks of chemical
weapons today, with the largest held by Russia and by the United States.
Both countries are slowly destroying their stockpiles, but missed what
was supposed to be a final deadline last year for doing so.

There is no doubt that Mr. Assad’s government has violated humanitarian
principles throughout the two-year-old war, including the prohibition on
the indiscriminate killing of civilians, even in non-international
conflicts, set out in 1949 in the Geneva Conventions. But the
conventions also don’t mean much unless the Security Council agrees to
act. It is an indictment of the current state of international law that
there is no universally recognized basis to intervene.

Arguably, the key legal obligation of nations in the post-1945 world is
adherence to the United Nations Charter. It demands that states refrain
“from the threat or use of force against the territorial integrity or
political independence of any state.” The use of force is permitted when
authorized by the Security Council or for self-defense (and countries
like Jordan and Turkey are considering this route to justify joining an
anti-Assad coalition) — but not purely on humanitarian grounds.

Of course ethics, not only laws, should guide policy decisions. Since
the Rwandan genocide and the Balkan mass killings of the 1990s, a
movement has emerged in support of adding humanitarian intervention as a
third category of lawful war, under the concept of the “responsibility
to protect.” It is widely accepted by the United Nations and most
governments. It is not, however, in the charter, and it lacks the force
of law.

This was evident in Kosovo in 1999, when NATO bombed Yugoslavia without
United Nations authorization. Then, as now, Russia and China were
unwilling to grant Security Council approval. America and its allies
went ahead with what the Independent International Commission on Kosovo
later called an “illegal but legitimate” use of force. In that case,
NATO accepted implicitly that its act was illegal. It defended it in
moral and political language rather than legal terms.

Norms and institutions of international criminal law, including 11 years
of experience with the International Criminal Court, have strengthened
since then. Special tribunals for Cambodia, Rwanda and the former
Yugoslavia reflect a growing consensus that perpetrators of atrocities
should be punished.

But if the White House takes international law seriously — as the State
Department does — it cannot try to have it both ways. It must either
argue that an “illegal but legitimate” intervention is better than doing
nothing, or assert that international law has changed — strategies that
I call “constructive noncompliance.” In the case of Syria, I vote for
the latter.

Since Russia and China won’t help, Mr. Obama and allied leaders should
declare that international law has evolved and that they don’t need
Security Council approval to intervene in Syria.

This would be popular in many quarters, and I believe it’s the right
thing to do. But if the American government accepts that the rule of law
is the foundation of civilized society, it must be clear that this
represents a new legal path.

Ian Hurd, an associate professor of political science at Northwestern,
is the author of “After Anarchy: Legitimacy and Power in the United
Nations Security Council.”

(4) Geoffrey Robertson for intervention in Libya


How the West can end Gaddafi's slaughter

March 7, 2011

Geoffrey Robertson

The civilised world has the right, and duty, to intervene. Failure may
mean the mass murder of innocents.

As Colonel Gaddafi, with his army and air force, his tribal supporters
and his propaganda machine, begins to counter-attack, only one thing is
certain. He is a man utterly without mercy. The history of his regime
demonstrates how he deals with opponents: hanging them from lamp-posts,
sending death squads to assassinate them as "stray dogs", killing them
in their jail cells. His offer of amnesty is not believable and will
not, in any event, be believed by the insurgents. Will the world stand
idly by once he starts to deliver on his threat to "fight to the last
man and woman"?

The shadow of Iraq invasion illegality has tainted talk of "liberal
interventionism" - unfairly, since George Bush was no liberal and Tony
Blair has wrongly used it as a retrospective excuse. There was no
looming humanitarian crisis in Iraq in March 2003, and the coalition of
the over-willing (the US, with Britain, Spain and Australia) explicitly
ruled out this justification: they claimed an entitlement to circumvent
the United Nations Security Council because of a convoluted reading of
an earlier resolution and a bizarre "Bush lawyer" claim to the right of
self-defence against Saddam's imaginary weapons for mass destruction (to
be fair, Saddam imagined them too).

The lesson of Iraq '03 is not that the US and its allies should never
use force against another country, but that never again should they do
so in breach of international law.

Which begs the big question, namely the circumstances in which there is
a right - or, more importantly, a duty - to use force to relieve a
humanitarian nightmare. The UN charter bans "the use of force against
territorial integrity or political independence of any state" other than
in individual or collective self-defence, or else with Security Council
authorisation after the council has determined that a threat or a breach
of the peace has occurred. Thereupon, the council may "take such action
- by air, sea or land - as may be necessary to maintain or restore
international peace or security".

This is clear, as far as it goes, but the problem is that each of the
"big five" has a Security Council veto and China and Russia generally
oppose intervention other than to liberate invaded states (which was the
case with Kuwait when it was invaded by Saddam). China was intransigent,
even when the people of East Timor were being butchered by
Indonesian-led militias as a reprisal for voting for independence in the
UN referendum. Many lives were lost until US president Bill Clinton
prevailed on the president of Indonesia to permit an Australian-led
"coalition of the willing" to enter what was Indonesia's territory and
restore order.

China is not always the only bad Samaritan, however. Only when minutes
of its secret session leaked did it emerge that Britain - under John
Major's government - had led the opposition to intervention in Rwanda in
1993, which could have saved hundreds of thousands of lives, by
pretending that what was happening there was not genocide.

In the case of Libya, the council has at least set an important
precedent by unanimously endorsing a reference of the situation in that
country to the International Criminal Court. If its prosecutor acts
quickly - the evidence against Gaddafi of inciting and using widespread
violence against civilians (a crime against humanity) is available on
television - then indictments will be handed down and warrants of arrest
will follow.

International justice, however, grinds slowly; it took many years for
Charles Taylor and Radovan Karadzic to appear in the dock, which still
awaits Mladic and Bashir. So what happens if the unarrested Libyan
indictees aggravate their crimes? If the Security Council in secret
session decides to do nothing (and the mere threat of a veto uttered by
one of the "big five" is usually enough reason for its inertia), does
international law permit others - such as the nice alliance of the North
Atlantic Treaty Organisation - to pick up the gauntlet?

In my view, which is contested by some, there is now a narrowly
proscribed international law right for states to render assistance to
innocent civilians battling for their lives. Examples of such action are
the Tanzanian invasion of Uganda to overthrow Idi Amin; India's
incursion to halt genocide and mass rapes in Bangladesh; and the US
takeover of Granada to stop the mayhem after Maurice Bishop's murder.

These actions were, however, justified at the time on dubious grounds of
self-defence, and the chief objection to a broadly stated "right of
humanitarian intervention" without Security Council approval remains
that it is liable to be mistaken for "a right of ideological
intervention". Hitler demonstrated its danger of abuse when he invoked
it to justify the use of force to protect German minorities from alleged
brutality, first in Czechoslovakia and then in Poland.

But more recent examples show that a rule of law that built on
traditional defences of necessity (excusing unlawful actions taken to
prevent serious and imminent peril) and distress (illegality permitted
to protect life in an emergency) allied to the European law principle of
proportionality is developing to allow "coalitions of the willing" to
use appropriate force to prevent a humanitarian catastrophe.

The two important precedents are the "safe havens" operation by the US,
Britain and France, invading northern Iraq without specific Security
Council authority to protect Kurds against violent reprisals threatened
by Saddam, and the NATO bombing of Kosovo.

The defects in the Security Council require the acknowledgement of a
limited right, without its mandate, for an alliance such as NATO to use
force to stop the commission of crimes against humanity. That right
arises once the council has identified a situation as a threat to world
peace (and it has so identified Libya, by referring it unanimously to
the ICC prosecutor).

To be lawful, the intervention must be at the request of potential
victims, for the purpose of stopping crimes against humanity and no
mixed or ulterior motive, such as obtaining territory or oil. It must be
proportionate - no greater force than necessary to achieve a reasonably
obtainable objective. Subject to these preconditions, NATO's
intervention in a Libyan emergency would be lawful, unless or until it
was denounced by majority vote in the Security Council.

A rule of law framed in this way may have to be invoked if vast numbers
of people are not to become victims of vengeance from a resurgent
Gaddafi. International law is not passed by any parliament: it "emerges"
or "crystallises" from state practice, conventions, the writings of
jurists and the dictates of collective conscience. The duty to stop the
mass murder of innocents, as best we can if they request our help, has
crystallised sufficiently to make the use of force by NATO not merely
"legitimate" but lawful.

Geoffrey Robertson, QC, is a member of the UN's justice council and
author of Crimes Against Humanity.

(5) Michael Kirby, for the UN, castigates North Korea for Human Rights


Arirang News

Updated: AUG 27, 2013

UN panel wraps up investigation of N. Korea's human rights violation in

A panel of UN inspectors on the human rights situation in North Korea
wrapped up their 10-day stay in Seoul on this Tuesday.

Before moving on to Japan, their next destination, the three-member
panel briefed reporters on their findings through their collection of
testimonies from North Korean defectors in Seoul.
For more, let's go live to Hwang Sung-hee at the Arirang News Center.
Sung-hee, how exactly was this investigation conducted by the UN panel?

The United Nations' Commission of Inquiry, headed by Michael Kirby, has
been in Seoul since August 18th.

Since then, the three commissioners held public hearings to collect
testimonies from those who witnessed North Korea's violation of human
rights first hand.

During the five-day hearing, the team met with around 50 North Korean
This is the first day of the hearing, where Shin Dong-hyuk, a well-known
North Korean defector turned human rights activist, offered his account
of the North's crimes against humanity.

"What is it that you saw when you were five-years-old?"

"At political prisons, there are public executions twice every year."

The commission said that through the hearings, they were able to gather
evidence of violations of human rights by North Korea, like the
existence of prison camps where conditions are inhumane.
For instance, here, prisoners are often required to live on rats, mice
and grasshoppers and are under constant torture.

Around 200-thousand people are believed to be imprisoned in North
Korea's prison camps today, where they are malnourished or even worked
to death.

The panel will be collecting more testimonies and evidences in Japan and
other countries. But do they plan on visiting North Korea for on-site

That's the problem.

The commission has asked the North Korean government numerous times to
visit the North for on-site investigations.

North Korea has denied any human rights abuses, and has said that UN
inspectors will not be allowed on North Korean soil.

However, during the press conference today, Michael Kirby, the chief
commissioner of the UN panel, said that his commission will continue to
reach out to the North for access to their country and promised to work
with no preconceptions.

"The best way for North Korea to respond to the type of evidence, which
if left unanswered is believable, even in some matters compelling, is
for it to open its doors, give access."

Before the press conference today, the North's state-run Korean Central
News Agency denounced the investigation, calling it a scheme to
overthrow their government.

Could these findings lead to perhaps a criminal law suit against the
North Korean leadership?

Well, the commissioners stressed that they are not prosecutors or judges.

They will be writing up a final report with all the accounts that
they've collected on North Korea's human rights violations, and submit
it to the United Nations in March next year.

The commission will be drawing conclusions from the facts that they've
found and make recommendations.
Some have pointed to the possibility of North Korea leader Kim Jong-un
being taken to the International Criminal Court.

But the commissioners said that the jurisdiction of the ICC is limited
to the jurisdiction over people in countries that have accepted its
jurisdiction, something the North has not done.

Nevertheless, there is an exceptional provision whereby the UN Security
Council can refer matters to the ICC even though the country may not
have accepted the jurisdiction, so the possibility is open.

You said the final report will be due in March 2014. Do we have any idea
what the report will include?

The commission said they are trying to make their final report as
interesting as possible to grab the interest of the international community.

They hinted that the report may be circulated in digital, electronic and
visual forms of vivid and succinct testimonies.

The commissioners said that they are the eyes and ears of the
international community and said that they are obligated to try to get
the international community to understand the enormity of the issue.

That was Arirang's Hwang Sung-hee on the United Nations' probe into
North Korea's human rights violations.

Reporter : ssung86@arirang.co.kr

Copyright © Since 1996, The Korea International Broadcasting Foundation
All Reserved. | Terms of Service | Privacy Policy

(6) Kenya decides to withdraw from the ICC (World Court)


The start of the trial in Prosecutor v. Ruto and Sang at the ICC has
been overshadowed by Kenya’s decision to withdraw from the ICC

September 14th, 2013

by Raphaelle Rafin by Dr Mis?a Zgonec-Roz?ej

Shorter version of this comment is published at Chatham House

On Tuesday, 10 September 2013, the trial of Kenya’s Deputy President,
William Ruto and his co-accused, former radio presenter, Joshua Sang,
began before the International Criminal Court (ICC). The trial of
Kenya’s President, Uhuru Kenyatta, is scheduled to start on 12 November
2013. Just a week ago, on 5 September 2013, the Parliament of Kenya
approved a motion for the withdrawal of its membership from the ICC. If
the bill is adopted, Kenya will become the first State Party to withdraw
from the Rome Statute of the ICC.

Implications of the withdrawal for Kenyatta and Ruto’s trials

  Walkout as Kenyan MPs vote to withdraw from Rome Statute ©Standard
Digital News The Rome Statute of the ICC allows a State Party to
terminate its ICC membership by written notification addressed to the
Secretary-General of the United Nations, who acts as a depository of
ratifications. The withdrawal, however, takes effect one year after the
date of the receipt of the notification. Article 127 of the Rome Stature
clarifies that a State Party is not discharged, by reason of its
withdrawal, from the obligations arising from the Statute while it was a
Party to the Statute.

Kenya’s withdrawal would thus have no effect on the criminal proceedings
against Kenyatta and Ruto which commenced prior to the date when the
withdrawal might become effective. Kenya would continue to be under the
obligation to fully cooperate with the ICC in connection with the trials
of its two leaders. But as soon as the withdrawal would come into
effect, it would preclude any investigation and prosecution of future
international crimes by the ICC.

Although a withdrawal of one State as such should not greatly affect the
ICC, Kenya’s termination of its ICC membership might be of much greater
significance. It would constitute a withdrawal of one of the eight
States the situations of which have been referred to the ICC and one of
the two States the investigation of which has been triggered by the
Prosecutor on his own initiative. It could potentially encourage other
States to consider their withdrawals, particularly those States that
have been under preliminary examination by the Prosecutor.

The ICC, unlike domestic courts, has no police force so it depends on
States’ cooperation. If Kenya failed to comply with a request to
cooperate, the Court could refer the matter to the Assembly of States
Parties for further action. However, all the Assembly could do is to
recommend resolution of non-cooperation issues through diplomatic means,
such as through “good offices” intervention by the President of the
Assembly, the effectiveness of which remains questionable.

Kenya’s efforts to stop the trials of Kenyatta and Ruto at the ICC

The decision to end its membership at the ICC is yet another attempt by
Kenya to prevent the ICC from conducting effective proceedings against
its leaders. While arguing that it has been fully cooperating with the
ICC, Kenya has attempted a number of times to interfere with the ICC’s
proceedings. For example, Kenya successfully lobbied the African Union
for the latter’s support for the termination of the proceedings at the
ICC and the referral of the cases for trial in Kenya. In May 2013, Kenya
requested the UN Security Council to end the proceedings against its
leaders, but the request has so far been ignored.

The ICC is also facing serious challenges in two other situations –
Sudan and Libya – both referred to the ICC by the UN Security Council.
Apart from Sudan’s persistent refusal to arrest and surrender its
President Omar Al Bashir, States Parties such as Malawi and Chad had
breached their obligations of cooperation by failing to arrest Bashir
when her was on a visit to those countries. The ICC Judges have formally
reported those breaches to the Security Council, but the Security
Council has not yet taken any action. Similarly, the ICC’s authority
continues to be undermined by Libya’s refusal to surrender Saif Gaddafi
despite the Court’s repeated reminders that it is obliged to do so. The
Court recently rejected the request to suspend the order for the
surrender of Gaddafi pending the appeal of the admissibility decision,
in which the Pre-Trial Chamber found that Libya was unable genuinely to
carry out an investigation against Gaddafi and confirmed the
admissibility of the case against him.

Controversies concerning Ruto and Kenyatta’s trials

The proceedings against the two leaders who are charged with crimes
against humanity committed during the post-election violence in 2007 and
2008, which left more than 1,000 people dead and more than half a
million displaced, have been plagued by controversy. Charges against two
out of six original suspects were not confirmed due to a lack of
evidence. The investigation has been bedeviled by problems of witness
intimidation, bribery and disappearances. Due to security concerns, a
number of witnesses have withdrawn their cooperation with the ICC. The
accused, however, have been allowed to remain at liberty pending the
trial which allowed them to campaign freely in the run-up to 2013’s
presidential elections. The Prosecution, on the other hand, has been
criticized for its failure to comply with its disclosure obligations,
which resulted in the withdrawal of the charges against Kenyatta’s
co-accused, Francis Muthaura, the former head of Kenya’s civil service.
More recently the Nairobi High Court Judge reportedly decided to forbid
the media and the public from following the proceedings at the ICC.

Although a person’s official position does not entitle him or her to
immunity from prosecution before the ICC, the ICC is facing a difficult
task in managing the conduct of the leaders’ trials in a way so as to
strike the right balance between their ability to perform their
functions and requirements of justice. The accused request to move the
venue of their trial from The Hague to either Kenya or Tanzania, using
the Rwanda Tribunal’s facilities, has been rejected by the Judges. In
their decision, the Judges took into account the security and cost of
holding proceedings outside The Hague, the potential impact on victims
and witnesses, as well as potential impact on the perception of the
Court. The accused have also requested for permission to be excused from
their continuous presence during the trial. If their request is approved
it would constitute a novelty in the practice of other international
criminal courts, which require that the accused attend the hearings and
stay in custody during the trial. Until the ICC renders a final decision
on the modalities of the trial, Ruto is required to be physically
present during the trial at the seat of the ICC in The Hague. Once
Kenyatta’s trial begins, the sittings in the two trials may be organized
in alternation so that the accused leaders are not away at the same time.


The proceedings against Kenya’s leaders play an important role in the
assessment of the ICC’s effectiveness. If Kenya’s efforts to undermine
the proceedings against Ruto and Kenyatta prove successful, the two
trials may end up weakening the ICC’s authority and could damage the
ICC’s long-term ability to ensure international justice. It is
questionable whether the initiation of criminal proceedings relating to
a State outside Africa could enhance the ICC’s credibility, but it could
at least deflect accusations of bias on the part of the ICC against
African States and their leaders.

No comments:

Post a Comment