At the September 29 meeting of the United Nations Human Rights Council, Paraguay led 29 countries, including the U.S. and the U.K., in presenting a statement that reiterated their “commitment to assist, within the framework of international law, to ensuring that Venezuelans fully enjoyed their civil, political, economic, social, and cultural rights. The disposition of the Holy See to contribute to facilitating dialogue was welcomed. Concern was expressed at reports of repression of the voices of the opposition and excessive force used against peaceful protesters and journalists.” The statement also urged all parties in Venezuela to hold a “timely and effective dialogue,” either directly or via facilitators, “to preserve peace and safety, to ensure the full respect of human rights, due process, the separation of powers and the consolidation of a representative democracy” and to release political prisoners.
Not surprisingly Venezuela opposed this statement. It alleged that “the statement [was] authored by the United States . . . [and] constituted a brazen interference into the internal affairs of Venezuela, which had been chosen as a new imperial target.”
Cuba, an ally of Venezuela and on behalf of another group of countries, opposed the statement and instead “called for respect for the sovereignty of Venezuela, in recognition of the right to choose one’s own political system, and expressed support for the Government of Venezuela in ensuring the democratic institutions of the country’s functioning. An appeal was made to all responsible members of the international community to refrain from manifestations of interference in the internal affairs of Venezuela.” In addition, Cuba alleged that “many countries were meddling into the internal affairs of Venezuela, and Cuba would continue to oppose such attempts and to support the Constitutional President Nicolas Maduro.”
Another opponent, Nicaragua, speaking on behalf of the Bolivarian Alliance for the Peoples of Our America, asserted, “Venezuela had been a victim of an unprecedented media campaign, which aimed to disregard and hide the achievements of the Bolivarian revolution. Those who promoted that campaign used human rights in a selective and political manner as an excuse to create conditions to destabilize the participative democracy in Venezuela. The Group demanded full respect for Venezuela’s sovereignty.”
Two other countries spoke on the Venezuela issue. Bolivia said Venezuela “had shown the world its ability to solve differences in compliance with the principle of sovereignty” and “warned against economic sabotage of Venezuela and guarded against violence and destabilization of that country.” Ecuador encouraged the “dialogue [already] underway in Venezuela,” which “should sovereignly and freely arrive at a solution.”
At the opening of this session of the Council on September 13, U.N. High Commissioner for Human Rights Zeid Ra’ad al Hussein delivered his global update on human rights that included the following lengthy comments about Venezuela:
“For the past two and a half years, Venezuela has refused even to issue a visa to my Regional Representative. Its comprehensive denial of access to my staff is particularly shocking in the light of our acute concerns regarding allegations of repression of opposition voices and civil society groups; arbitrary arrests; excessive use of force against peaceful protests; the erosion of independence of rule of law institutions; and a dramatic decline in enjoyment of economic and social rights, with increasingly widespread hunger and sharply deteriorating health-care. My Office will continue to follow the situation in the country very closely, and we will state our concerns for the human rights of Venezuela’s people at every opportunity. Respect for international human rights norms can create a narrow path upon which the Government and the opposition can both tread, to address and resolve peacefully the country’s current challenges – particularly through meaningful dialogue, respecting the rule of the law and the Constitution. My Office stands ready to assist in addressing the current human rights challenges, and I thank the Secretary-General of the Organization of American States for recommending that Venezuela work with my Office on a Truth Commission, which could indeed offer the people an important voice.”
Any casual observer from the U.S. and elsewhere should know that Venezuela has been experiencing exceedingly difficult economic and political problems and that most of its people are desperate for food and other essentials. Its government’s attempt to gain international support by calling and hosting a sparsely attended Summit of the Non-Aligned Movement, as discussed in a prior post, was an embarrassing failure.
We just reviewed the current status of the investigative situations and cases of the International Criminal Court (ICC).  Now we look at two other major issues facing the ICC–Syria and Palestine, last year’s meeting of the Court’s Assembly of States Parties and the Chief Prosecutor’s statement about this month’s being genocide awareness month.
Syria. As we know from many news sources, popular demonstrations against Syrian President Bashar al-Assad commenced in March 2011 and immediately grew throughout the country. In April 2011, the Syrian Army was deployed to quell the uprising, and soldiers were ordered to open fire on demonstrators. After months of military sieges, the protests evolved into an armed rebellion. By January 2013 the U.N. estimated the war’s death toll had exceeded 60,000, and a month later this figure was updated to 70,000. Another 6,000 reportedly were killed in March 2013.
To respond to this horrible suffering, many have called for the ICC to become involved. One who has repeatedly done so is the U.N. High Commissioner for Human Rights, Navi Pillay. Here are some examples:
During a debate on Syria by the U.N. Human Rights Council in February 2012, she said she believed that the situation of Syria should be referred to the ICC by the U.N. Security Council.
On June 7, 2012, she said, “We continue to witness a serious deterioration of the human rights situation in Syria, which demands our full attention and engagement.” There is evidence of “a pattern of widespread or systematic attacks against civilian populations, and may amount to crimes against humanity and other international crimes. There are indications that the situation in Syria – at least in certain areas – amounts to an internal armed conflict. This would have legal implications, triggering the possibility of commission of war crimes, in addition to crimes against humanity. It makes the call I made to the Security Council to consider referring the case of Syria to the International Criminal Court even more urgent.”
At a February 13, 2013, Security Council meeting, she said, “The lack of consensus on Syria and the resulting inaction has been disastrous and civilians on all sides have paid the price. We will be judged against the tragedy that has unfolded before our eyes.” She said that referring Syria to the ICC could have a very significant preventive effect because it “would send a clear message to both the government and the opposition that there will be consequences for their actions”.
The Syrian government obviously opposes such a referral. In January 2013 it said it “regrets the persistence of these countries [that signed the joint statement favoring referral] in following the wrong approach and refusing to recognize the duty of the Syrian state to protect its people from terrorism imposed from abroad.” The statement also accused some of the countries signing the statement of “deceit and double standards” in blaming Syria while financing, training and hosting “terrorists.”
Because Syria is not a state party to the ICC’s Rome Statute, the only way for the Syrian situation to get before the ICC is by a referral from the U.N. Security Council. But so far that has been impossible because Russia and China as permanent members of the Council would veto such a referral as they already have vetoed resolutions to impose sanctions on Syria. For example, this past January the Russian Foreign Ministry said the joint request by over 50 countries for such a referral was “ill-timed and counterproductive to resolving the main task at this moment: an immediate end to the bloodshed in Syria.”
Palestine. In November 2012 the U.N. General Assembly, 138 to 9 with 41 abstentions, voted to grant non-member observer state status to the Palestinian Authority. Those voting “No” included Israel, U.S. and Canada. The abstainers included the U.K. and Germany.
Israel and the U.S. are concerned that the Palestinian Authority (PA) may use its new U.N. status to try a press for an ICC investigation of Israeli practices in the occupied territories. The PA could: (1) attempt to become a State Party at the ICC by ratifying the Rome Statute and then referring alleged crimes to the ICC; or (2) remain a non-State Party but make a declaration accepting the Court’s jurisdiction over a particular set of crimes.
In either option the PA would have to refer an entire situation or train of events to the ICC that would permit the ICC Prosecutor to investigate or prosecute any crime within that situation allegedly committed by anyone, including alleged crimes by Palestinians against Israelis. The State Party option would require the PA to ratify the Rome Statute and then present a document certifying the ratification to the U.N. Secretary-General, who is responsible for administering the Rome Statute. He would have to decide whether the PA was a state competent to ratify. Should he so decide, the Prosecutor and the rest of the ICC would be obliged to proceed as with any other State Party.
In the non-State Party option of a declaration of acceptance of jurisdiction followed by a referral, the ICC Prosecutor would have to make the first decision on whether the PA was a state competent to make the referral. This decision could be challenged in the Pre-Trial Chamber by the PA, or by another state involved in the situation giving rise to the referral, such as Israel.
The PA has in fact already tried this option by submitting a report of alleged crimes and declaration of acceptance of jurisdiction to the ICC Prosecutor in 2009. In April 2012, however, the Prosecutor released a statement that at he was not empowered to decide on the PA’s statehood status. Instead, the Prosecutor said, a U.N. body such as the Security Council or the General Assembly, or the ICC’s Assembly of States Parties, would have to make this determination. After the General Assembly’s recent action, the press has reported that the current Prosecutor is giving the earlier PA declaration further consideration.
Assembly of States Parties. Last November the Assembly of States Parties (ASP) held its 11th session and adopted a budget and made certain elections.
The ASP approved an amendment to the Court’s Rules of Procedure (new Rule 132 bis) that will permit a single judge to perform the functions of a Trial Chamber for the purposes of trial preparation. The amendment was agreed by consensus and is expected to expedite ICC trial preparation.
The ASP also had a general discussion of complementarity, i.e., the principle and practice of the ICC’s deferring to criminal prosecutions in national court systems. Helen Clark, the former prime minister of New Zealand and current administrator of the U.N. Development Program, spoke about the role international development agencies, such as UNDP and others, can contribute to domestic capacity for dealing with ICC crimes. She also urged governments to take responsibility to deliver justice.
U.S. Ambassador-at-Large for Criminal Justice, Stephen J. Rapp, congratulated the ASP for this crucial discussion on both the policy and practice of complementarity. He stressed the importance to governments – States Parties and non-States Parties alike – to strengthen domestic judicial capacity in a manner that is both concerted and coordinated. He also said the U.S. supports ICC prosecutions and building national justice systems by funding support of complementarity; using the tools of diplomacy to support complementarity; providing technical and legal assistance to national systems; and improving fugitive tracking efforts.
There also was discussion about an initiative to adopt a treaty on crimes against humanity that has been prepared by the Whitney R. Harris World Law Institute at the Washington University in St. Louis School of Law.
Genocide Awareness Statement by Prosecutor. In light of this April’s being genocide awareness month, the Court’s Chief Prosecutor called on “all States, whether parties to the Rome Statute or not, to cooperate with the ICC in seeking/pursuing accountability for genocide.” In particular, this meant enforcing the ICC’s warrant for the arrest of Sudanese President Omar al Bashir, who is charged with “genocide by killing, causing serious bodily injury or mental harm and by deliberating inflicting conditions of life calculated to bring about the physical destruction of the Fur, Masalit and Zaghawa ethnic groups in Darfur.”
A prior post discussed the March 22, 2013, resolution by the General Assembly of the Organization of American States (OAS) that strengthened the Inter-American Human Rights System, especially the Inter-American Commission on Human Rights (“Commission”).
In so doing, the OAS rejected efforts to weaken the Commission under the guise of reform proposals that had been offered by Ecuador and other states that the Commission has criticized (Venezuela, Bolivia and Nicaragua).
We now examine the background to that surreptitious effort to weaken that System and the debate at the March 22nd General Assembly meeting
1. Multilateral Treaties and Other Instruments Regarding the Right of Free Expression.
The right of free expression by the media and others is well established in international law.
The United Nation’s General Assembly’s Universal Declaration of Human Rights of 1948 in Article 19 states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” In 1966 this was put into legally enforceable form in Article 19 of the International Covenant on Civil and Political Rights, which entered into force in 1976.
To like effect is the American Convention on Human Rights, which was adopted by the OAS in 1969 and which entered into force in 1978. Its Article 13(1) says, “Everyone has the right to freedom of thought and expression . . . [including the] freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice.” Article 13(3) goes on to say, “The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.”
Ecuador under the presidency of Rafael Correa since January 2007 has through policies and actions retaliated against journalists and media that have criticized him and his government. Correa has insulted and filed lawsuits against reporters and news outlets and promoted a series of legal measures to roll back press freedoms. His government has expropriated television channels, radio stations, newspapers and magazines.
Journalists in the country also have been subjected to physical threats and assaults with lackluster efforts by the government to investigate and prosecute those responsible.
3. The Commission and Civil Society’s Criticism of Ecuador’s Hostility to Freedom of Expression.
The Commission in 1997 created the Special Rapporteur for Freedom of Expression “to encourage the defense of the right to freedom of thought and expression in the hemisphere, given the fundamental role this right plays in consolidating and developing the democratic system and in protecting, guaranteeing, and promoting other human rights.”
This Rapporteur has been in the forefront of criticizing Ecuador for these actions against journalists and the media. Since January 1, 2009 it has issued nine press releases expressing its concern over specific criminal prosecutions and imprisonments of journalists for libel for publication of articles about corruption of public officials and for specific physical threats and assaults on journalists.
In addition, since 2006 the annual reports of the Rapporteur have had sections specifically addressing Ecuador’s conduct in this area.
For example, the latest such report (for 2011) devotes 31 pages (78-108) for a detailed, footnoted review of Ecuador’s assaults and attacks on media and journalists; legal proceedings and arrests (the “Rapporteur is concerned about the consistent tendency of high-ranking public officials to rebuke, arrest, and prosecute citizens who criticize them at public events”); presidential broadcasts and government interruptions of news programs; disparaging statements by senior state authorities against media outlets and reporters critical of the government; constitutional amendment and legislative proposals to regulate the content of all media, establish the grounds for liability and the applicable sanctions and serve as an authority on enforcement; and cloture and regulation of communications media.
Such actions also have subjected the country to similar criticism by the U.N. Human Rights Council in its Universal Periodic Review of Ecuador in the summer of 2012. One of the Council’s closing recommendations in that Review was for Ecuador to reform its legislation regarding freedom of expression with a view to bringing it in conformity with international standards and those of the Inter-American Commission on Human Rights. In response Ecuador said that it could not agree to reform its legal framework in accordance with standards from the Commission, when it is the Inter-American Court of Human Rights, not the Commission, which has judicial competency over this matter. Nor could Ecuador, it said, eliminate laws that criminalize opinion since it had no such laws.
4. Ecuador’s Campaign for Its Proposed “Reforms” of the Commission.
In response to the Special Rapporteur’s persistent and documented criticism of Ecuador, the country developed a set of proposals to “reform” the Commission. Prominent in this package were reduction in funding (and hence the work) of the Special Rapporteur and elimination of his separate annual report.
In early 2013 Ecuador conducted a lobbying campaign in support of these proposals. Its Foreign Minister, Ricardo Patino, went on a tour of Mexico, Chile, Argentina, Brazil, Colombia, Dominican Republic, Haiti and Venezuela to promote them. He also advocated them at a meeting of the Political Council of the Bolivarian Alliance for the Peoples of Our Americas (ALBA)  and at a March 11th meeting in Guayaquil, Ecuador of the 24 states that were parties to the American Convention on Human Rights.
The latter event was opened by a long speech by Ecuadorian President Correa, who emphasized that the Commission should have its headquarters in a state that has ratified said Convention (not Washington, D.C.); that the Commission should have its own budget provided only by state parties to the Convention (without voluntary contributions by outsiders like the U.S., Canadian and European governments and NGO’s); that the Commission should not be “autonomous” and instead be controlled by said states parties; the abolition of the Commission’s rules authorizing its issuance of precautionary measures; having the Commission focus on general promotion of human rights, not investigating and deciding on alleged violations of human rights; and elimination of the separate annual report of the Special Rapporteur for Free Expression and instead including such a report in a comprehensive report for all of the rapporteurships.
The Ecuador meeting resulted in the Declaration of Guayaquil whereby the 24 states parties agreed that at the March 22nd meeting of the OAS General Assembly they would support the following: a group of their foreign ministers would press the U.S., Canada and other non-parties to the Convention to ratify or accede to same; the Commission would be refocused on promotion of human rights through national systems; financing of the Commission would be increased by states parties and by “neutral” others; all rapporteurships would be treated equally; an analysis of the costs of the OAS Human Rights System would be obtained; the Commission’s headquarters would be moved to a state party; and annual conferences about reforming the System would be held.
Opposition to such proposals came forward from the U.N. High Commissioner for Human Rights, Navi Pillay, who urged the OAS members “to strengthen its exemplary human rights system, by promoting universal access for citizens . . ., respecting the Commission’s autonomy to progressively improve its policy and practices in response to the needs of victims and concerns of member states, and providing the necessary resources [to the System].” Similar concerns were voiced by Amnesty International, Human Rights Watch, the Committee to Protect Journalists, Freedom House, a group of 98 prominent Latin Americans and a coalition of 700 hemispheric human rights organizations.
Another opponent of Ecuador’s campaign was Cesar Gaviria Trujillo, a former president of Colombia and past secretary general of the OAS. He said that the so called “reforms” of the Commission put forward by Ecuador would “severely weaken the [C]omission and make it easier for governments to ignore basic rights and limit free speech.” They would “drastically curtail [the Commission’s] autonomy” and put a “financial stranglehold” on its operations, including a “devastating impact” on the Special Rapporteur for Freedom of Expression. 
The March 22nd OAS General Assembly Meeting
In opening remarks that day, the OAS Secretary General, Jose Miguel Insulza from Chile, stressed that the autonomy of the System needed to be maintained. He also said that strengthening some of the Commission’s rapporteurships “cannot mean that others are weakened” and that the Special Rapporteurship on Freedom of Expression should be strengthened “with a program of ample defense of [such] freedom . . . . ” This would include “issues relating to the curtailment of that freedom by public authorities . . . as well as the threats and crimes to which journalists and the social media are increasingly subjected in our region and the obligation of states to protect them.”
Similar remarks were made by U.S. Deputy Secretary of State, William J. Burns. He noted that even though the U.S. was not a party to the American Convention on Human Rights, the U.S. still collaborates with the Commission when it challenges the U.S. on such issues as the death penalty, the human rights of migrants and children and the status of detainees at Guantanamo Bay, Cuba. He added, “We must be vigilant against efforts to weaken the Commission under the guise of reform. [Such efforts] . . . seek to undermine the Commission’s ability to hold governments accountable when they erode democratic checks and balances and concentrate power through illiberal manipulation of democratic processes.”
Ecuadorian Foreign Minister Patino in his remarks accused the opposition and the media of distorting his government’s proposals. He also accused the Commission of improperly assuming the power to issue precautionary measures. Its decisions were independent, he said, but the Commission was not autonomous. He rhetorically asked, the Commission is autonomous and independent of whom? Sotto voce, a Spanish journalist answered, “You,” causing laughter by those around the journalist.
The resolution adopted by acclamation at the midnight conclusion of the March 22nd meeting already has been discussed. It clearly did not adopt all of the items in Ecuador’s package.
This resolution emerged after a long day in which the U.S., Canada, Mexico, Colombia, Costa Rica, Panama and Chile lead the opposition to the proposals from Ecuador, Bolivia, Venezuela and Nicaragua. A Human Rights Watch observer said, “It was a resounding victory for the Commission, and a major defeat for the Venezuela-Ecuador bloc. It became evident that [the latter] . . . were totally isolated, without the support they were expecting from other countries.”
Towards the end of the meeting Ecuador and Bolivia threatened to withdraw from the Commission and leave the meeting. To avoid such a rupture, Argentina offered a face-saving amendment to the resolution about the OAS’ Permanent Council continuing the dialogue on the “core aspects for strengthening” the System, which Ecuador and the other ALBA countries ultimately accepted.
Afterwards Ecuador’s Foreign Minister tried to whitewash his country’s defeat by saying that the resolution accepted its proposal to continue the debate in the future. Before the next meeting of the OAS General Assembly in June 2014, the Foreign Minister said that there would be another meeting of the states parties to the American Convention like the one on March 11th in Guayaquil to discuss these issues. He also hinted at Ecuador’s possible withdrawal from the OAS Commission by saying there was an agreement being negotiated to create a Human Rights Commission of the Union of South American Nations (UNASUR).
Unless there are unexpected changes in regimes or policies in this Hemisphere over the next 14 months, I do not expect Ecuador and its allies will be successful at the June 2014 OAS meeting in gaining acceptance of its proposals to weaken the Inter-American Commission. We will then see if this small group will leave that Commission and form its own, more limited, human rights system.
ALBA is an alternative to the U.S.-sponsored Free Trade Area of the Americas. differing from the latter in that it advocates a socially-oriented trade block rather than one strictly based on the logic of deregulated profit maximization. The only members of ALBA are Ecuador, Bolivia, Venezuela, Nicaragua and three small Caribbean states (Antigua and Barbuda, Dominica and Saint Vincent and the Grenadines.
 Such a limitation on financing undoubtedly would result in a reduction of such funding and thus on the work of the Commission.
 I assume that Ecuador has another burden to overcome in attempting to win support for its “reform” proposals. Its credibility within the OAS, I suspect, has been adversely affected by its recent exaggerated, alarmist call for an OAS Consultative Meeting of Foreign Ministers over the alleged United Kingdom threat to invade Ecuador’s London Embassy because of its providing diplomatic asylum in that Embassy to Julian Assange.
A July 8th New York Timesheadline 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.
On March 14, 2012, the International Criminal Court (ICC) convicted its first defendant: Thomas Lubanga Dylio. 
The ICC’s three-judge Trial Chamber unanimously concluded, after a lengthy trial, that he was guilty beyond a reasonable doubt as a co-perpetrator of the war crimes of conscripting and enlisting children under the age of 15 and using them to participate in an internal armed conflict in 2002-2003 in the Democratic Republic of the Congo (DRC). At the time Lubanga was the President of a rebel group, the Commander-in-Chief of its military wing and its political leader.
At a hearing to be held on April 18th the Trial Chamber will consider the length of his sentence and the principles to be used in establishing reparations for the victims of these crimes. The ICC’s Prosecutor has said that his office will seek a sentence close to the maximum of 30 years under Article 77(1)(a) of the Court’s Rome Statute. It is anticipated that Lubanga will appeal his conviction and sentence to the ICC’s Appeals Chamber.
The Trial Chamber’s judgment also harshly criticized the Prosecutor for negligence in delegating investigations to unreliable intermediaries who had encouraged certain witnesses to give false testimony that had compelled the Court to exclude any reliance on their testimony.
The U.N.’s High Commissioner for Human Rights said this verdict “represented the coming of age of the [ICC] . . . and . . . [sent] a strong signal against impunity for such grave breaches of international law that will reverberate well beyond the D.R.C.”
The U.S. had similar words of commendation. The White House said the decision demonstrated that “the international community is united in its determination to end the repugnant practice of using child soldiers.” The U.S. Department of State noted that the conviction highlighted the “paramount international concern” over “the brutal practice of conscripting and using children to take a direct part in hostilities” and puts “perpetrators and would-be perpetrators of [such conduct] on notice that they cannot expect their crimes to go unpunished.”
 A previous post reviewed the trial of this case while another post discussed interesting issues of witness protection in the case.
A prior post reported that on February 9th the Supreme Court of Spain, 7-0, convicted Judge Baltasar Garzon of prevarication (knowingly making an unjust decision) in the case involving his authorization of police bugging of communications between individuals charged with corruption and their attorneys. Judge Garzon was sentenced to removal from the bench for 11 years plus a fine of Euros 2,500. The last post examined initial reactions to this conviction.
Further Comments on the Conviction Decision Itself
Before we look at additional reactions, articles in El Pais have provided more detail about the court’s decision itself. (The decision itself (en espanol) is available on the web.)
One commentator said this entire wiretap case was based on the interpretation of article 51.2 of Spain’s General Penitentiary Law (Ley General Penitenciaria) that allows prisoner communications to be monitored “by order of the judicial authority and in cases of terrorism” (“por orden de la autoridad judicial y en supuestos de terrorismo”). This commentator noted that other judges in non-terrorism cases–without controversy–had used this statute to approve monitoring of prison conversations.
El Pais reported that the court’s decision set forth the following seven reasons for the conviction:
The right to defense was restricted without justification. The rights of the criminal defense are important to having a fair process. Therefore, any restriction of that right must be “especially” justified. In the underlying corruption case, there were no “data of any kind to suggest that the lawyers mentioned in the events were taking advantage of the exercise tested the defense to commit new crimes.”
Judges are also subject to the law. It violates the rule of law when the judge, under the guise of law enforcement, serves only his own subjectivity. This case against Garzon is not an attack on judicial independence, but “a democratic requirement imposed by the need to criminally condemn” any conduct that “under the guise of law enforcement, frontally infringes the rule of law. Judge Garzon did not commit a “misinterpretation of the law,” but rather “an arbitrary act.”
Judge Garzon had to have been aware of the unfairness of his decision to allow the monitoring of the conversations. The Judge’s use of the statute (51.2 of Spain’s General Penitentiary Law) could not be reached by any of the methods of interpretation of the rules permitted by law.
The confidentiality of the relationship between the accused and his counsel is essential. The court cited the Court of Justice of the European Communities and the European Court of Human Rights to support the thesis that one of the fundamental requirements of a process is the defendant’s right to communicate with his lawyer without being heard by others.
The limits of the right to confidentiality of communications of inmates are regulated by the General Penitentiary Law. This Law, as it stands, can only be applied to cases of terrorism and prior order of judge. To apply it in other cases requires an amendment to the law.
There was not an error of interpretation, but an arbitrary act. Judge Garzon did not use any of the accepted methods that would have allowed restrictions to the right of defense. Therefore, Judge Garzon did not commit a “misinterpretation of the law,” but rather “an arbitrary act.”
Judge Garzon’s approval of monitoring these attorney-client conversations puts Spanish criminal proceedings at the level of totalitarian regimes. The Judge’s approval is a practice today only found in totalitarian regimes in which all attempts to obtain information of interest to the state are valid “regardless of the minimum guarantees for citizens.”
Apparently the court made no mention that Garzon’s order to monitor the attorney-client conversations in a non-terrorism case was approved by two anti-corruption attorneys and by a judge of the regional Madrid High Court. None of these individuals was permitted to testify by the court in the case against Garzon.
Criticisms of the Conviction
A spokesperson for the U.N. High Commissioner for Human Rights stated “”judges should not be prosecuted for doing their job,” and that international law establishes “that amnesty should not be granted to perpetrators of crimes against humanity.” This individual also recalled that in 2009 the U.N. Human rights Committee had recommended that Spain should revoke its 1977 amnesty law as being inconsistent with international human rights laws.
The Argentine Human Rights Secretary said Garzon was not the person convicted, but rather the Spanish judicial system. The decision, he added, “bares . . . the black memory of Franco.”
Similar views were expressed by Argentina’s Mothers of Plaza de Mayo, who said it had filed a habeas corpus petition before the European Court of Human Rights to challenge the case against Garzón.
Newspapers around the world have criticized the conviction decision. The New York Times editorial stated, “Convicting a jurist over a court ruling is an appalling attack on judicial independence. . . . [The]decision by the Spanish Supreme Court to remove [Garzon] from the bench is enormously damaging to the prospects of fair and impartial justice.” Britain’s Guardianstated: Garzon’s “enemies celebrate the fall of a human rights defender.” France’s LeMondsaid the victims of Francoism lead the defense of the judge. The Argentine newspaper Clarinrejected the decision and quoted the son of a man who had been killed by Franco’s forces as saying the judgment had fallen “like a bomb there, here and around the world.”
A Spanish commentator expressed the opinion that the wire-tapping case was the most important and the strongest of the three criminal cases against Garzon and, therefore, was put on a fast track by the court. For Garzon’s critics and enemies, the commentator suggested, it would be poetic justice to convict Garzon for violating the basic rights of Spanish citizens, the presumably innocent lawyers, not their clients, the criminal defendants.
Defense of the Decision
The Spanish government continues its defense of the court’s decision to convict Judge Garzon. The Deputy Prime Minister said, “[A]ll judicial decisions are worthy of respect. All Spaniards must respect court verdicts, but even more so public representatives. When [such representatives] question the institutions, [they] are also questioning democracy – here and beyond our borders. I am appealing to their sense of responsibility. Spain is a democratic country. I am very worried about the image that some are trying to convey about a Spain that is not really Spain.”
Thee presidency of the Spanish Supreme Court itself and Spain’s General Council of the Judiciary issued a statement saying that the court acted “with absolute independence and impartiality.”
As a U.S. lawyer with no first-hand knowledge of Spanish law and procedure, I see this case on the surface at least of being primarily one of statutory interpretation, and as an outsider I can understand different points of view on that issue. Article 51.2 of Spain’s General Penitentiary Law (Ley General Penitenciaria) allows prisoner communications to be monitored “by order of the judicial authority and in cases of terrorism” (“por orden de la autoridad judicial y en supuestos de terrorismo”). One interpretation would be the one adopted by Spain’s Supreme Court: such monitoring is only permissible by court order in terrorism cases. The other interpretation would be monitoring is permissible (a) when ordered by a court in any kind of case; and/or (b) in terrorism cases with or without court order.
This kind of issue, however, is one to be resolved in the normal appellate review of trial court decisions, not in a criminal case against the trial court judge who made the initial decision on the issue.
This case along with the other two against Judge Garson are far from over. Anyone who is interested in human rights, judicial independence and the rule of law needs to be concerned about these cases and to be vigilant in seeking to protect these values in Spain and elsewhere around the world.