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The Importance of Protecting Foreign Diplomats and Diplomatic Missions

September 19, 2012

People who are the full-time representatives of their home countries in foreign countries fulfill important responsibilities. They represent the policies and interests of their own governments and peoples to the governments and peoples of the foreign countries. They gather information about the policies and interests of the foreign governments and peoples and report that information to the diplomats’ own governments. They also make recommendations on policies to their own governments. They do all of this on foreign soil without the protections of their own governments.[1]

International Law Regarding Protection of Foreign Diplomats and Missions

All states need such diplomatic presences in other countries and hence have a common interest in having their diplomats and diplomatic premises protected by the foreign governments. Indeed, as preamble to the Vienna Convention on Diplomatic Relations state, having a treaty setting forth such protections “contribute[s] to the development of friendly relations among nations, irrespective of their differing constitutional and social systems” and hence to “the maintenance of international peace and security” under the U.N. Charter.

These common interests have existed for a long time and were the motivation for the well established international practice and custom of providing special protection and immunity from criminal jurisdiction for ambassadors. By the time of the Congress of Westphalia in 1648, permanent legations were accepted as the normal way of conducting international business among sovereign States, and over the next century detailed rules emerged in relation to the immunity of ambassadors and their accompanying families and staff from civil as well as criminal proceedings, the inviolability of their embassy premises and their exemption from customs duties and from taxes. These rules of customary international law were described in detail by early writers such as Grotius (1625), Bynkershoek (1721) and Vattel (1758).

The first international treaty or other instrument codifying any aspect of diplomatic law was the Regulation adopted by the Congress of Vienna in 1815. Codification among States of immunities and privileges of diplomatic agents did not begin until the Havana Convention of 1928 drawn up among the States of the Pan-American Union and the Draft Convention drawn up in 1932 by the Harvard Research in International Law.

After the establishment of the United Nations in 1945, efforts to develop a comprehensive multilateral treaty on diplomatic relations began. The initial draft of such a treaty was produced in 1957, and its 1958 revision was the basis for the U.N. Conference on Diplomatic Intercourse and Immunities in Vienna, Austria in March and April of 1961. On April 18, 1961, this Conference concluded with the signing of the Convention on Diplomatic Relations, which entered into force on April 24, 1964, after 22 states had ratified the treaty.

Now 187 of the 193 members of the U.N. are parties to this treaty. Its success may be ascribed first to the fact that the central rules regulating diplomatic relations had been stable for over 200 years. An embassy’s basic functions of representing the sending State and protecting its interests and those of its nationals, negotiation with the receiving State, observing and reporting on conditions and developments there remained and still remain unaltered. In addition, because the establishment of diplomatic relations and of permanent missions takes place by mutual consent, every State is both a sending and receiving State. Its own representatives abroad are in a sense hostages who may on a basis of reciprocity suffer if it violates the rules of diplomatic immunity, or may be penalized even for minor restrictions regarding privileges or protocol.

Article 22(2) of the Vienna Convention states, “The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.” In addition, Article 29 provides, “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.”

Recent Breaches of International Law Regarding Protection of Diplomats and Diplomatic Missions

The recent horrific attacks on U.S. diplomatic posts throughout the world, especially the attack on the U.S. Consulate in Benghazi, Libya and the murder of U.S. Ambassador J. Christopher (“Chris”) Stevens and three other U.S. citizens, are stark examples of the dangers facing all diplomats throughout history.

These attacks also represent breaches by many states of their important international legal obligation “to take all appropriate steps to protect the premises of the mission” and “to prevent any attack on ["the head of the mission or a member of the diplomatic staff of the mission"'s ] . . . person, freedom or dignity.”

Ecuador’s Specious Allegation of the U.K.’s Breach of These Legal Obligations

These deplorable breaches also, in my opinion, show the utter speciousness of Ecuador’s complaint about the alleged failure of the United Kingdom to honor its important obligation with respect to the Ecuadorian Embassy in London after Ecuador had granted temporary lodgings, and subsequent diplomatic asylum, to Julian Assange.

Dispassionate analysis of the U.K.’s alleged written threat to invade the Embassy shows this not to be the case, as discussed in a prior post.

In addition, there were British police outside the Ecuadorian Embassy, but they were there to protect the Embassy and to arrest Assange if he tried to leave the Embassy. After all Assange had violated the terms of his bail by a British court by leaving a specific place west of London and surreptitiously entering the Embassy in order to avoid being arrested pursuant to a European Arrest Warrant to be sent to Sweden for investigations for his alleged criminal sexual conduct. In short, Assange was a fugitive from justice. Moreover, British police or other authorities never came close to entering the Ecuadorian Embassy. And no Ecuadorian diplomatic personnel were injured or even threatened.

By the way, negotiations between Ecuador and the U.K. to resolve their disputes over Assange apparently are deadlocked.

[1]  The many duties of diplomatic personnel and the dangers they face were well stated on Minnesota Public Radio’s “The Daily Circuit” by Ronald E. Neuman, President of the American Academy of Diplomacy and a former U.S. Ambassador to Afghanistan, Algeria, and Bahrain.

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Ecuador’s Dispute with the United Kingdom and Sweden over Julian Assange: Background

August 25, 2012

Assange @                      Ecuadorian Embassy

Ecuadorian Embassy, London

On August 16, 2012, the Government of Ecuador granted the petition for asylum submitted by Julian Assange, an Australian national temporarily residing at the Ecuadorian Embassy in London, United Kingdom.[1]

Assange, of course, is the individual behind WikiLeaks, the international, online, self-described not-for-profit organization publishing submissions of private, secret, and classified media from anonymous news sources, news leaks and whistleblowers. In 2010 it obtained many secret U.S. documents and released them to the world through various media outlets.[2]  No U.S. criminal charges have been publicly filed against Assange with respect to the releases of these U.S. government documents, but he fears that such charges secretly have been filed or will be filed and that such charges may seek life imprisonment or the death penalty.[3]

In August 2010 Assange was visiting Sweden, where he allegedly had certain sexual encounters with two Swedish women, who subsequently filed some kind of complaint about these encounters with Swedish authorities. As a result, these authorities have been investigating whether Assange committed rape or some other kind of sexual assault on these women. To pursue that investigation the authorities obtained an European Arrest Warrant to extradite Assange to Sweden for questioning.

In December 2010 Assange, then in Britain, learned about the European Arrest Warrant and voluntarily went to a British police station to advise them of his whereabouts. He immediately was arrested and taken into custody. After a short stay in prison, Assange was freed on bail of  £340,000 (nearly $540,000), of which £ 200,000 was deposited with the court, plus his being confined to  a specific site in Norfolk, England, fitted with an electronic tag and ordered to report to police daily.

Assange then went to the U.K. courts to challenge his extradition to Sweden.  In February 2011, however, a U.K. court upheld the Swedish request, which was affirmed nine months later (November) by the U.K.’s High Court and in May 2012 by the U.K.’s Supreme Court (5 to 2). In addition, that Supreme Court on June 14th denied Assange’s request for a rehearing and ordered that he be extradited to Sweden by July 7th.

Thereafter (on June 19th) Assange somehow violated the terms of his bail and managed secretly to enter the Ecuadorian Embassy in London, where he filed his claim for asylum.

In the roughly two months between June 19th and Ecuador’s August 16th’s granting of asylum, the governments of Ecuador and the U.K. apparently had private diplomatic exchanges and public sparring over this situation. Especially significant in light of later developments were the following incidents:

  • On August 15th, the U.K. Embassy in Quito apparently delivered a letter to Ecuador’s Ministry of Foreign Affairs that said: “You need to be aware that there is a legal base in the UK, the Diplomatic and Consular Premises Act 1987, that would allow us to take actions in order to arrest Mr Assange in the current premises of the Embassy.” The letter purportedly also stated, “We need to reiterate that we consider the continued use of the diplomatic premises in this way incompatible with the Vienna Convention [on Diplomatic Relations] and unsustainable and we have made clear the serious implications that this has for our diplomatic relations.”  The latter added, “”We sincerely hope that we do not reach that point, but if you are not capable of resolving this matter of Mr. Assange’s presence in your premises, this is an open option for us.”
  • The Ecuadorian government immediately and publicly disclosed some of the contents of the August 15th letter and characterized the statements just quoted as “threats against the sovereignty of the Ecuadorean embassy” and as “a clear breach of international law and the protocols set out in the Vienna Convention [on Diplomatic Relations].”
  • In response, the U.K. Foreign Office stated, “The UK has a legal obligation to extradite Mr. Assange to Sweden to face questioning over allegations of sexual offences and we remain determined to fulfill this obligation.” Therefore, “it is only right that we give Ecuador the full picture. Throughout this process we have drawn the Ecuadorians’ attention to relevant provisions of our law, whether, for example, the extensive human rights safeguards in our extradition procedures, or the legal status of diplomatic premises in the UK.” Moreover, the U.K. stated its continued commitment “to reaching a mutually acceptable solution.”

OAS Building, Washington, D.C.

On August 24th, at Ecuador’s request, the Organization of American States (OAS) held an extraordinary Meeting of Consultation of Ministers of Foreign Affairs, to discuss the dispute. This meeting concluded with a unanimous resolution focused on the inviolability of diplomatic missions under international law. A subsequent post will review this OAS meeting and the legal issue of the status of diplomatic missions in host countries.

Another subsequent post will examine the merits of the Assange asylum claim.

In the meantime, Assange continues to be a full-time “guest” at the Ecuadorian Embassy in London.

[1] This post is drawn from caches of articles about all of these events in the New York Times and the Guardian.

[2] By happenstance, as reported in a prior post, some of the U.S. government documents released by WikiLeaks were cables from the then U.S. Ambassador to Ecuador, Heather Hodges, to the U.S. State Department in Washington, D.C. asserting that there were multiple reports of illegal activities by Ecuador’s national police chief and that Ecuador’s President Correa might use these activities to manipulate the police chief. After these cables became public, President Correa called these statements “unacceptable, malicious and imprudent” and expelled Hodges. In retaliation, the U.S. expelled the Ecuadorian Ambassador to the U.S., Luis Gallagos. Both Hodges and Gallagos, in my opinion, are honorable professional diplomats, and neither one did anything wrong.

[3] A U.S. national and member of the U.S. Armed Forces, Bradley Manning, allegedly participated in obtaining these documents for WikiLeaks, and he currently is in U.S. custody facing criminal charges for that alleged conduct. Discussion of the many issues relating to his case is beyond the scope of this post.

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Is the International Criminal Court Flawed?

July 8, 2012

A July 8th New York Times headline proclaims, “Arab Uprisings Point Up Flaw in Global Court.” It erroneously suggests that the people operating the International Criminal Court are stupid or cowardly or that the diplomats who in 1998 drafted the ICC’s governing treaty, the ICC’s Rome Statute, were similarly stupid or cowardly.

The article starts with the facts that the ICC has not initiated an investigation of human rights abuses in Yemen and Syria. That is lamentable, but it is not due to a flaw in the operations of the ICC or the Rome Statute.

It is due instead to the limitations on the Court’s jurisdiction that were intentionally established in the drafting of the Rome Statute because of opposition of states like the U.S. that did not want the Court commencing investigations or criminal prosecutions against their citizens if the state did not ratify that Statute.

That Statute’s Article 12 provides, in part, that the Court has jurisdiction if certain crimes (genocide, crimes against humanity or war crimes) are committed on the territory of a state that is a party to the Rome Statute or by nationals of such a state. Neither Yemen nor Syria is such a party, as is true for all other states in the Mideast except Jordan. Thus, the Court does not have jurisdiction of such an investigation or prosecution under Article 12.

The Rome Statute’s Article 13(b) also provides jurisdiction for the Court if the U.N. Security Council, acting under Chapter VII of the U.N. Charter (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression), refers a situation of suspected crimes of that nature to the ICC even if the state where the conduct occurred or whose nationals are involved had not ratified the Rome Statute. In fact, as the New York Times article points out, the Security Council has twice done so: Sudan (Darfur) and Libya.

However, as most people know, the U.N. Charter that was drafted in 1945 at the end of World War II grants in Article 27(3)  a veto on any action by the Council to each of its five permanent members: the U.S., the United Kingdom, France, the Union of Soviet Socialist Republics [now Russia] and the Republic of China. The failure of the ICC to undertake any investigation of the Yemen situation is due to a threatened veto by the U.S. of such a referral.

With respect to Syria, the U.S. in June 2011 reportedly was seeking Russian and Chinese support for a Council referral of the situation to the Court, but that was obviously unsuccessful because no such proposal was actually advanced in the Council. In November 2011 four U.S. Senators (Dick Durbin, Benjamin Cardin, Robert Menendez and Barbara Boxer) sent a letter to the U.S. Ambassador to the U.N. (Susan Rice) asking for such a Security Council referral. They said, “The people of Syria deserve to know that the people of the United States understand their plight, stand behind them, and will work to bring justice to the country.” Security Council referral of Syria to the ICC also has been endorsed by the New York Times.

The next month (December 2011) the U.N. High Commissioner for Human Rights urged the Security Council to make such a referral. But nothing happened, again because of threatened vetoes by Russia and China.

If there is any “flaw” in this structure with respect to Yemen and Syria it is the veto right of the five permanent members of the Security Council. Although many, if not most, of the U.N. members that are not permanent Council members dislike the superior status and veto rights of the permanent Council members and voice various suggestions for reform of the Security Council, expert observers of the U.N. do not think that is at all likely in the near future.

In the meantime, 121 of the 192 U.N. members are now parties to the Rome Statute, and the Court’s governing body (its Assembly of States Parties) is working towards its goal of universal ratification of the Rome Statute. If and when that happened, the Court could initiate investigations and prosecutions with respect to all such parties without Security Council action.

Over the last 60-plus years the peoples of the world through their nation-state governments have been struggling to climb out of the pits of depravity of World War II by creating or codifying international norms or human rights and by constructing mechanisms to protect individuals that are beyond the control of their own national governments while such governments still have sovereignty over most aspects of their lives. The creation and operation of the International Criminal Court and other so-called ad hoc international criminal tribunals are important pieces of this effort. This is an inherently difficult process, and many compromises are necessary in order to make any progress. But the story is not finished. Further development, I am confident, will occur.

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U.N. Security Council Briefing on Libya by ICC Prosecutor

May 26, 2012

 

Luis Moreno-Ocampo

   

U.N. Security Council

On May 16, 2012, the ICC’s Chief Prosecutor, Luis Moreno-Ocampo, briefed the U.N. Security Council on the status of the ICC’s investigation and prosecution of crimes committed in Libya since February 15, 2011. He did so because the Council on February 26, 2011, had referred this situation to the ICC for investigation and prosecution.

Mr. Moreno-Ocampo reported that his office has been cooperating with states, INTERPOL, NGO’s and others, including the separate U.N. Commission of Inquiry on Libya and the Libyan National Transitional Council (NTC).

The Prosecutor emphasized that the “intensity of the cooperation [between the ICC and the NTC] . . . is only increasing” and that the NTC had asked the ICC to postpone its investigation and prosecution of two individuals to enable Libya to prosecute them for the same crimes. The Prosecutor said that his office was well aware of the “primacy of national proceedings” under the Rome Statute and on June 2nd would submit his comments on the request to the Court.

The report also discussed the Prosecutor’s continuing investigation of gender crimes (rape of opponents), the alleged arbitrary arrests and enforced disappearances of presumed Gaddafi loyalist and the alleged killings, looting, property destruction and forced disappearances of suspected Gaddafi loyalists in the town of Tawergha.

In addition, the Prosecutor stated that his office had investigated alleged crimes by NATO forces, but that it had “no information to conclude that the NATO air strikes which may have resulted in civilian deaths and injury or damaged civilian objects were the result of the intentionally directing of attacks against the civilian population as such or against civilian objects.” Nor did the Prosecutor have any “information to suggest that [NATO] . . .  authorized the launching of strikes in the knowledge that such attacks would cause incidental loss of life or injury to civilians or damage to civilian objects which would be clearly excessive in relation to the concrete and directed overall military advantage anticipated.”

These conclusions regarding NATO were specifically welcomed by some of the NATO members on the Security Council (U.K., France and Germany). Russia and China, on the other hand, expressed concern that no charges had been brought against NATO leaders for some of their air strikes.

The Togo representative on the Council mentioned the need for greater cooperation between the ICC and African states and hoped that the recent visit to the African Union headquarters by the President of the ICC’s Assembly of States Parties “will enable a strengthening of ties so that the shared goal of combating the impunity of the perpetrators of heinous crime can be met.”

The most recent prior post on the ICC and Libya was on November 16, 2011 with nine comments thereto.


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International Criminal Court’s New Judges Take Office

March 9, 2012

New ICC Judges

On March 9th, five new judges of the International Criminal Court (ICC) were sworn in at a ceremony held at the seat of the Court in The Hague. The are Judges Howard Morrison (United Kingdom), Anthony T. Carmona (Trinidad and Tobago), Olga Herrera Carbuccia (Dominican Republic), Robert Fremr (Czech Republic)  and Chile Eboe-Osuji (Nigeria).

The other judge who was elected at the December 2011 meeting of the Court’s Assembly of States Parties, Judge Miriam Defensor-Santiago (Republic of the Philippines), was unavailable due to personal circumstances and will be sworn in later.

The ICC has a bench of 18 judges who are nationals of States Parties to the Court’s Rome Statute. Judges are chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices. The election of the judges takes into account the need for the representation of the principle legal systems of the world, a fair representation of men and women, and equitable geographical distribution.

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International Criminal Court: Six New Judges Elected

December 17, 2011

At its current meeting in New York City, the ICC’s governing body, the Assembly of States Parties, was charged with electing six new judges for the Court.[1] On December 16th, the Assembly completed this task, and the new judges will take office on March 11, 2012.[2]

All six possess the basic Rome Statute qualifications for these important positions: high moral character; impartiality; integrity; the qualifications required by their States for appointment to their highest judicial offices; and excellent knowledge of the Court’s two “working languages” (English and French) and fluency in at least one of these languages.

In addition, they have established competency in either (a) “criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in similar capacity, in criminal proceedings” or (b) “relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court.”

All were on the list of qualified candidates for the judgeships that was produced by the Independent Panel on ICC Judicial Elections that evaluated the 19 candidates advanced by States Parties. The six new judges range in age from 49 to 66 and are reported to be in good health and thus presumptively able to serve the full nine-year term of office.

As shown below, the new judges bring a wealth of experience in domestic and international criminal law, prior judicial and advocate experience in criminal trials plus academic writing in the fields of criminal law, humanitarian law (or the law of war) and human rights. They also have distinguished educational records.

Judge Carmona

Anthony Thomas Aquinas CARMONA from Trinidad and Tobago. At 58 years of age, he has degrees from the University of the West Indies and the Sir Hugh Wooding Law School. He has considerable experience, training and demonstrated competence in criminal law and criminal procedure both at the national and international levels for over 25 years.

  • He currently  is a judge of the Supreme Court of Trinidad and Tobago.
  • He has served as Appeals Counsel (Office of the Prosecutor) at the International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda (ICTR).
Judge Carmona also served at the highest level of the criminal prosecution service of Trinidad and Tobago rising to the position of Acting Director of Public Prosecutions. At this level, he prosecuted major and complex criminal cases which sometimes involved appeals to the Judicial Committee of the Privy Council in London.
He was a representative of Trinidad and Tobago at the Preparatory Committee on the establishment of the ICC.As a judge of the Supreme Court of Trinidad and Tobago and a former prosecutor, Judge Carmona presided over or prosecuted cases involving violence against women and children.

Senator Defensor-Santiago

Miriam DEFENSOR-SANTIAGO of the Philippines. At age 66, she holds degrees from the University of the Philippines and the University of Michigan (LLM and LLD) and has authored books and articles on Philippine and international law. She will be the first Asian from a developing country on the Court. She has had a distinguished career in the Philippines:
  • Defensor-Santiago currently is a Senator, having been elected in 2010 for a third term; she also served as Senator from 1995 to 2001 and 2004 to 2010. She was the Chairperson of the Senate’s Committee on Foreign Relations, 2004-2010.
  • She also stood for election as President in 1992 and received the second highest number of votes.
  • She was Professional Lecturer on constitutional and international law, College of Law, University of Philippines, 1976-1988.
  • She was a legal officer of the United Nations High Commissioner for Refugees, 1979-1980.
  • She served as Presiding Judge of a Regional Trial Court, 1983-1987.
  • She was head of the Commission on Immigration and Deportation, 1988-1989.
  • She was appointed Secretary (Minister) of Agrarian Reform in 1989.

She is well known in her home country for making colorful statements. For example, when she was asked if she had received death threats at the Commission on Immigration and Deportation, she said, “I eat death threats for breakfast. Death is only a state of thermodynamic equilibrium.”[3]

Eboe-Osuji

Chile EBOE-OSUJI of Nigeria. At age 49, he holds degrees from the University of Calabar (Nigeria), McGill University in Canada (LLB and LLM) and the University of Amsterdam in the Netherlands (PhD in international criminal law). Mr. Eboe-Osuji  has  competence in substantive and procedural criminal law based on 25 years of experience and familiarity with professional  advocacy in courtrooms:

  • He has worked in senior legal advisory capacities to the U.N. High Commissioner of Human Rights and has rendered legal advisory services to the Government of Nigeria and foreign governments, on questions of international law.
  • He has practiced criminal law in the courts of Nigeria and Canada.
  • He has litigated cases before the ICTR as senior prosecution trial counsel, the Special Court for Sierra Leone as senior prosecution appeals counsel and the European Court of Human Rights. Prior to these engagements, he was prosecution counsel in several cases at the ICTR.
  • He also has extensive experience, in a senior legal advisory capacity behind the scenes, assisting ICTR trial and appellate judges in the drafting of many judgments and decisions.
  • His specific areas of competence include international criminal law (especially genocide, crimes against humanity, and war crimes); international humanitarian law; international human rights law; public international law; Nigerian and Canadian criminal law, and criminal law in the common law world.  He also has expertise relating to the crime of aggression, by virtue of his research and legal advisory assistance to the Delegation of Nigeria to the ICC Assembly of States Parties Special Working Group on the Crime of Aggression.

Judge Fremr

Robert FREMR of the Czech Republic. He is 54 years old and holds degrees from Charles University Law School in Prague. He has nearly 25 years of experience in criminal law and procedure as a judge in all four tiers of the Czech judicial system plus judicial experience at the ICTR. In these positions, he has gained considerable expertise in managing complicated and time-intensive cases as well as in working with women and child victims of violent crime who require special treatment in court. Here are the specifics:
  • Judge ad litem, ICTR, 2010-2011
  • Judge of the Supreme Court of the Czech Republic, 2009-10.
  • Judge ad litem, ICTR, 2006-2008
  • Judge of the Supreme Court of the Czech Republic, 2004-2005
  • Judge of the High Court in Prague (Penal Section), 1989-2003
  • Judge of the Court of Appeal in Prague (Penal Section), 1986-1989
  • Judge of the District Court Prague 4, 1983-1986
  • Judicial practitioner, Municipal Court, Prague, 1981-1983

Judge Fremr also has lectured on criminal law at the Faculty of Law of Charles University in Prague and taught human rights courses to judges and trainee judges at the Judicial Academy of the Ministry of Justice of the Czech Republic.

Judge Fremr has attended many important international conferences (e.g. the ninth session of the Assembly of State Parties to the Rome Statute, official meetings within the Council of Europe,  Organization for Economic Co-operation and Development.

Herrera Carbuccia

Olga Venecia HERRERA CARBUCCIA of the Dominican Republic (DR). She holds degrees from the Universidad Autonoma de Santo Domingo in the DR and is 55 years old. She has practical experience in the field of criminal law, human rights protection, children’s rights, and combating money laundering and financing terrorism.  She has extensive legal teaching experience in her home country. Herrera Carbuccia has extensive judicial experience in her home country:

  • Judge President of the Criminal Chamber of a Court of Appeals , 2003-present
  • Presiding Judge of the First Criminal Chamber of a Court of Appeals, 2001-2003
  • First Deputy Judge President of the  Criminal Chamber of a  Court of Appeals, 1997-2003
  • Substitute Second Judge President of the Criminal Chamber of a Court of Appeals, 1991-1997
  • Judge President of the Eighth Penal Chamber of a Court of First Instance, 1986-1991
  • Assistant Attorney to the National District Prosecutor, 1984-1986
  • Fiscal of two DR Peace Courts, 1981-1984

Judge Howard Morrison

Howard MORRISON of the United Kingdom. He holds a degree from London University and is 62 years old.  Here are some of the highlights of his legal career:
  • Judge of ICTY, 2009-present
  • Judge of the Special Tribunal for Lebanon, 2009
  • Senior Judge of the Sovereign Base Areas of Cyprus, 2008.
  • Circuit Judge, criminal and civil, 2004
  • Defense counsel , ICTY and ICTR, 1998-2004
  • Recorder in crime, civil and family jurisdictions, 1998
  • Assistant Recorder in crime, civil and family jurisdictions, 1993
  • Ad hoc Attorney-General for Anguilla, 1988-1989
  • Resident Magistrate and  Chief Magistrate of Fiji and concurrently Senior Magistrate of Tuvalu, 1986-1988
  • Practicing barrister in U.K., primarily criminal law and equally divided between prosecution and defense, 1977-1985 and 1989-2004.

We the peoples of the world should give thanks to these six qualified people for their willingness to undertake the important and challenging work of a Judge of the ICC.

[1]  See Post: International Criminal Court: Basics of Its Upcoming Judicial Election (June 23, 2011); Post: International Criminal Court: Specified and Recommended Qualifications for ICC Judges (June 24, 2011); Post: International Criminal Court: New States Parties, Judges and Prosecutor (Nov. 22, 2011).

[2]  ICC, Final Results:  Election of the Judges of the ICC (contains biographical material about the new judges), http://www2.icc-cpi.int/Menus/ASP/Elections/Judges/2011/Results/Final+Results.htm; AMICC, First Week of Assembly of States Parties Concludes with the Completion of the Election of Six ICC Judges, http://amicc.blogspot.conm (Dec. 16, 2011).

[3] Tordesillas, We will miss Sen. Miriam, http://www.gmanetwork.com (Dec. 15, 2011).

 

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International Criminal Court: Four People Recommended for Election as ICC Prosecutor

October 25, 2011

On October 25th the International Criminal Court (ICC) announced that the Search Committee for a new Prosecutor for the Court had recommended four individuals for this position.[1]

The four individuals are:

  • Fatou B. Bensonda. From Gambia, she has served as ICC Deputy Prosecutor since November 2004. Previously she held high-level positions as legal advisor and attorney for the International Criminal Tribunal for Rwanda (ICTR) and the government of Gambia.
  • Andrew T. Cayley. From the United Kingdom, he is currently a prosecutor for the Extraordinary Chambers in the Courts of Cambodia (ECCC). Previously he was a senior prosecuting counsel for the ICC, defense counsel for the Special Court for Serra Leone (SCSL) and the International Criminal Tribunal for the former Yugoslavia (ICTY), prosecuting counsel for the ICTY and an attorney with the British Army.
  • Mohamed Chande Othman. From Tanzania, he is currently Chief Justice of Tanzania. Previously he was Justice on the country’s Court of Appeal and held high-legal positions with the U.N. Development Program for Cambodia, the U.N. Transitional Administration in East Timor (UNTAET), the ICTR and the High-Level Commission of Inquiry on Lebanon.
  • Robert Petit. From Canada, he is currently Counsel to the Crimes Against Humanity and War Crimes Sections of Canada’s Department of Justice. Previously he served in high-legal legal positions with the ECCC, SCSL, UNTAET, ICTR and the Canadian Department of Justice.

Now the ICC’s Assembly of States Parties will endeavor to nominate and elect by consensus one of these people as the new ICC Prosecutor. That will happen at the Assembly’s meeting in December 2011.

[1] ICC Press Release, Report of the Search Committee for Prosecutor (Oct. 25, 2011). See Post: International Criminal Court: Its Upcoming Prosecutor Election (June 25, 2011).

 

 

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Remembering Oscar Romero at Westminster Abbey

October 18, 2011

Westminster Abbey, London, UK

Romero Statue, Westminster Abbey, London, UK

In 1998 Westminster Abbey in London opened its gallery of Christian Martyrs of the Twentieth Century. Their 10 statues are set in outside niches above the main entrance. The Abbey did so to proclaim that the 20th century was one of Christian martyrdom greater than in any previous period in the history of the church.[1]

In niche number 6 is the statue of Oscar Romero. He stands between the statues of Dr. Martin Luther King, Jr., the great U.S. civil rights leader and preacher, and Dietrich Bonhoeffer, the German Lutheran pastor and theologian who was executed by the Nazi regime just before the end of World War II for his involvement in a plot to assassinate Adolph Hitler.[2]

The biographical essay about Romero in a book about this gallery of martyrs is by Philip Berryman, an U.S. liberation theologian and leading authority on Christianity in Central and South America.

Berryman was in El Salvador in March 1980 and heard Romero’s famous homily ordering the military to stop the repression. Immediately afterwards, Berryman said he expressed his amazement at Romero’s boldness in saying what the Salvadoran military officers must have thought was treasonous. The next day when Berryman heard that Romero had been shot, he rushed to the hospital only to find out that Romero had died. Shortly after the assassination, he reports that Ignacio Ellacuria, the Rector of the Universidad de Centro America (UCA), celebrated a mass and said that with Archbishop Romero, God had visited El Salvador.[3]

Berryman recounts the familiar story about Romero’s being conservative and soft-spoken when he was appointed Archbishop in early 1977 and being converted to social and political justice after the murder of his friend, Father Rutilio Grande. To the same point, he quotes another friend of Romero, Jesuit priest and liberation theologian at UCA, Jon Sobrino, who said that when Romero gazed “at the mortal remains of Rutilio Grande, the scales fell from his eyes. Rutilio had been right! The kind of pastoral activity, the kind of church, the kind of faith he had advocated had been the right kind after all. . . .  [I]f Rutilio had died as Jesus died, if he had shown that greatest of all love, the love required to lay down one’s very life for others–was this not because his life and mission had been like the life and mission of Jesus? . . . Ah then, it had not been Rutilio, but Oscar who had been mistaken! . . .  And Archbishop Romero , , , [made] a decision to change.” In short, Grande’s life and death gave Romero a new direction for his life and the strength to pursue it.[4]

Romero, according to Berryman, prepared his homilies in consultation with a team of priests and lay people to review the situation in the country. Then he would write the homily from his notes, the newspapers of the week and the Biblical texts and commentaries. The homilies themselves usually lasted about 45 minutes, mostly devoted to a systematic and thematic reflection on the Biblical texts for the day, but also with Romero’s observations on the human rights violations of the prior week.[5]

Berryman also comments on the strained relationship between Romero and the U.S. government. Early in 1978, for example, Romero met with Terrance Todman, the U.S. Under-Secretary of State for Inter-American Affairs, who urged Romero to have a less confrontational and more constructive relationship with the Salvadoran government. Romero immediately responded that the U.S. and Rodman did not understand what was happening in El Salvador. “The problem is not between Church and government, it’s between government and people. . . . It’s not the church, much less the archbishop! If the government improved its treatment of the people, we will improve our relations with the government.”[6]

The Anglican Dean of Westminster Abbey came to El Salvador for the 20th anniversary of Romero’s assassination in 2000 and participated in a mass at the El Salvador de Mundo (the Savior of the World) traffic circle lead by the Roman Catholic Archbishop of Los Angeles. I cried during the service when Salvadorans passed the peace to me after all my country had done to support the Salvadoran government during their civil war.

[1] Andrew Chandler, Christian Martyrs of the Twentieth Century (Westminster Abbey; London 1999); Andrew Chandler (ed.), The Terrible Alternative–Christian Martyrdom in the Twentieth Century (Cassell; London 1998).

[2] Christian Martyrs of the Twentieth Century at 3, 8, 10, 13.

[3]  The Terrible Alternative at 159-60. Father Ellacuria, of course, was one of the six Jesuit priests murdered by the Salvadoran military in November 1989. (See Post: International Criminal Justice: The Salvadoran Murders of the Jesuit Priests (June 2, 2011).)

[4]  Id. at 160, 164-65; Jon Sobrino, Archbishop Romero: Memories and Reflections at 9-10 (Orbis; Maryknoll, NY 1990); Post: Oscar Romero, A Saint for All People and All Time (Oct. 5, 2011). Jon Sobrino, whom I met at UCA in April 1989, escaped being murdered with his fellow Jesuits in November 1989 because he was lecturing in Southeast Asia. (Jon Sobrino, Ignacio Ellacuria, et al., Companions of Jesus: The Jesuit Martyrs of El Salvador at 4-9 (Orbis Books; Maryknoll, N.Y. 1990).)

[5]  The Terrible Alternative at 167-68.

[6]  Id. at 170.

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The Founder of Modern Conservatism’s Perspective on the Current U.S. Political Turmoil

July 28, 2011

Edmund Burke

Edmund Burke (1729-1797) was an Irish statesman, author, orator, political theorist and philosopher who, after moving to England, served for many years in Britain’s House of Commons as a member of the Whig party. He is remembered for his support of the cause of the American Revolution and for his later opposition to the French Revolution. He often has been regarded as the philosophic founder of modern conservatism.[1]

In 1774 Burke was elected to Parliament for Bristol, which at the time was “England’s second city” and a great trading city. Many of his constituents were opposed to free trade with Ireland, which Burke supported. This and other issues lead to his defeat in the 1780 parliamentary election.

After his election in 1774, Burke gave what became a famous speech on the philosophy of the duties of an elected representative. He said:

  • “[I]t ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinions high respect; their business unremitted attention. It is his duty to sacrifice his repose, his pleasure, his satisfactions, to theirs—and above all, ever, and in all cases, to prefer their interest to his own.
  • But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive from your pleasure—no, nor from the law and the Constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion. . . .
  • [G]overnment and legislation are matters of reason and judgment, and not of inclination; and what sort of reason is that in which the determination precedes the discussion, in which one set of men deliberate and another decide, and where those who form the conclusion are perhaps three hundred miles distant from those who hear the arguments?
  • To deliver an opinion is the right of all men; that of constituents is a weighty and respectable opinion, which a representative ought always to rejoice to consider. But authoritative instructions, mandates issued, which the member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest convictions of his judgment and conscience—these are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenor of our Constitution.. . .
  • Parliament is a deliberative assembly of one nation, with one interest—that of the whole—where not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole. You choose a member, indeed; but when you have chosen him, he is not member of Bristol, but he is a member of Parliament. If the local constituent should have an interest, or should form an hasty opinion evidently opposite to the real good of the rest of the community, the member for that place ought to be as far as any other from any endeavour to give it effect.” [2] (Emphasis in bold added.)

Fast forward from Britain in 1774 to the U.S. in 2011. Many groups now ask or demand that candidates for public office sign pledges to adhere without exception to certain positions held by the group. I think especially today of Grover Norquist and his Americans for Tax Reform with his insistence on “no new taxes.”[3]

This is a horrible development in our political life. I am opposed to all such pledges on the grounds advanced by Burke. I am also opposed to the Norquist pledge in particular.[4]

[2] Edmund Burke, Speech To The Electors Of Bristol At The Conclusion Of The Poll (Nov. 7, 1774), http://press-pubs.uchicago.edu/founders/documents/v1ch13s7.html.

[3]  Wikipedia, Grover Norquist, http://en.wikipedia.org/wiki/Grover_Norquist; Americans for Tax Reform, http://www.atr.org/taxpayer-protection-pledge.

[4] Post: My Political Philosophy(April 4, 2011); Post: Passionate, Committed Political Leadership (July 22, 2011); Post: Disgusting U.S. Political Scene (July 23, 2011).

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International Criminal Court: Basics of Its Upcoming Judicial Election

June 23, 2011

The International Criminal Court (ICC) has 18 judges, each of whom serves only one term of nine years. In December of 2011 six new judges will be elected by the Court’s governing body, the Assembly of States Parties.[1]

Aside from specified and recommended personal qualifications for these judgeships,[2] there are requirements that judges come from the current 115 States Parties, that no State may have more than one judgeship and that there be equitable geographical and gender representation on the Court. There is also a requirement that the Court have representation of the “principal legal systems of the world.”[3]

Of the six judges who will be replaced in the upcoming elections, three are female and three are male. Two are from Latin America (Brazil and Costa Rica), two from Africa (Mali and Uganda) and two from Western Europe and Other (France and the U.K.)[4]

Given the Rome Statute’s requirement for considerations of geographical and gender equity  and for certain proportions for Lists A and B judges, the upcoming elections will seek to elect up to 2 females and at least 4 males who come from the A List (at least 4) and the B List (no more than 2) from the following geographical areas:

  • Africa: 2 from 28 African States Parties (31 -3 (Botswana, Ghana and Kenya, which already are represented on the Court));
  • Latin America: 2 from 24 Latin American and Caribbean States Parties (26  - 2 (Argentina and Bolivia, which already are represented on the Court)); and
  • Western Europe & Other States Parties: 2 from 22 Western European/Other States Parties (25 – 3 (Belgium, Finland, and Germany, which already are represented on the Court)).[5]

Nominees for these six positions must come from the 115 States Parties (with no more than one nomination from each such State) during the period June 13 through September 2, 2011. Each nomination must have a statement specifying how the individual meets the personal requirements of the Rome Statute.[6]

As of June 22, 2011, there were the following four nominations:[7]

  • Judge John Bankole Thompson of Sierra Leone. He has been a Judge of the High Court of Sierra Leone and of the Trial Chamber of the Special Court for Sierra Leone. He also has been a law professor in his country and in the U.S. (University of Akron School of Law, Kent State University and Eastern Kentucky University. He holds LLB, M.A. and Ph. D. degrees in law from Cambridge University.
  • Bruno Cathala of France. He has been the ICC’s Registrar and its Director of Common Services; Deputy Registrar of the ICTY; president of two regional French courts and one of its juvenile courts. He also has been Deputy Director of a French government department for judicial protection of juveniles. He hold degrees from France’s Institutes of Higher National Defense Studies and of Higher Internal Security Studies and a post-graduate pre-PhD diploma in Private Law from the School of Law, University of Paris.
  • Chile Eboe-Osujl of Nigeria. He has been an advocate in criminal cases in the courts of Nigeria and Canada and a prosecutor at the ICTR and the Special Court for Sierra Leone. He has served as an advisor to the U.N. High Commissioner for Human Rights and to the Nigerian delegation to the ICC’s Review Conference on the crime of aggression. He has taught international criminal law at the University of Ottawa. He has special experience and expertise regarding violence against women and children.
  • Gberdao Gustave Kam of Burkina Faso. He has been an ad litem judge for the ICTR and a judge in several courts in his country. He also has served in his country’s Ministry of Justice.

The more fascinating issue of the specified and recommended personal qualifications for these positions will be discussed in a future post.

[1] See Post: The International Criminal Court: Introduction (April 28, 2011); Rome Statute, Art. 36 (1), (9); ICC, Election of six judges–December 2011, http://www2.icc-cpi.int/Menus/ASP/Elections/Judges/2011/2011.htm.

[2] A future post will discuss the Rome Statute’s specified qualifications for judgeships as well as recommended qualifications proposed by civil society.

[3] Rome Statute, Art. 36 (7), (8)(a).

[4] International Coalition for the International Criminal Court, Information about the Nomination and Election of Six New Judges and the Prosecutor, New York, December 2011, http://www.coalitionfortheicc.org/documents/.

[5] Id.

[6]  Rome Statute, Art. 36 (4)

[7]  ICC, Election of six judges–December 2011, http://www2.icc-cpi.int/Menus/ASP/Elections/Judges/2011/2011.htm.

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