Sunday, 23 April 2017

Summer schools: Galway and Newcastle

Readers may be interested in the following Summer Schools:

Contemporary Challenges to International Criminal Justice Summer Academy Northumbria University, Newcastle 12-16 June 2017

Northumbria Law School is pleased to announce its 1st Summer Academy on Contemporary Challenges to International Criminal Justice (Law & Criminology) will take place in Northumbria University, Newcastle from 12-16 June 2017.

This novel summer academy provides a unique opportunity for participants to acquire in-depth knowledge on the most pressing issues facing the international criminal justice system from the leading scholars and practitioners in the field. Speakers will share their expertise and experience on a varied range of topics to encourage and inspire postgraduate research in law and criminology.

 The themes of the summer academy are:

  • Challenges to international criminal justice and the future of the International Criminal Court
  • Challenges to international cooperation in fighting transnational and international crimes
  • Challenges in prosecuting terrorism and religiously motivated violence
  • Challenges in ensuring effective redress for victims in post-conflict situations
  • Ecocide as a challenge to justice and security
  • Rule of law reform in post conflict countries

The distinguished speakers are: 

Professor William Schabas (Middlesex University/Leiden University) - Judge Howard Morrison (International Criminal Court) - Judge Professor Wolfgang Schomburg (International Criminal Tribunal for the former Yugoslavia 2001-2008, Durham University) - Judge David Baragwanath (Special Tribunal for Lebanon) - Judge Professor Philip Weiner (Extraordinary Chambers in the Courts of Cambodia) -  Professor Roger S. Clark (Rutgers Law School) - Professor Chrisje Brants (Northumbria University) - Professor Liz Campbell (Durham University) - Mr Karim A.A. Khan, QC (Temple Garden Chambers, International Defence and Victims Counsel & former Prosecutor) - Dr. Mohamed Elewa Badar (Northumbria University) - Dr. Rod Rastan (Legal Adviser, Office of the Prosecutor, International Criminal Court) - Professor Tim Wilson (Northumbria University) - Professor Roger Clark (Rutgers Law School) - Dr. Mohamed El Zeidy (Legal Officer, Pre-Trial Chamber II, International Criminal Court) - Dr. Tanya Wyatt (Northumbria University)- Dr. Noelle Higgins (Maynooth University) - Professor Michael Rowe (Northumbria University) - Mr. Patrick Schneider (EU Office of the Special Representative for Bosnia and Herzegovina) - Dr. Michael Kearney (Sussex University) - Mr. Krmanj Othman (KRG High Committee for the Recognition of Genocide against Yezidi Kurds and other minorities) ­- Dr. Patricia Hobbs (Brunel University) - Dr. Hakeem Yusuf (University Birmingham) - Dr. Elena Katseli (Newcastle University) - Dr. Jamie Harding (Northumbria University) - Dr. Ibrahim Shaw (Northumbria University) - Professor Nigel South (University of Essex) - Dr. Damien Short (University of London) - Dr. Mohamed 'Arafa (Indiana University) - Ms. Gemma Davies (Northumbria University) - Dr. David McGrogan (Northumbria University).

This event is a wonderful opportunity for international lawyers, legal interns, academics, and present and future postgraduate students to meet eminent scholars and practitioners in the field of international criminal justice as well as like-minded colleagues from all over the world. 
  
Participants may register to attend individual sessions or the whole event. Please note that places are limited.

For further information and to register please visit our website or email.


The International Criminal Court Summer School 2017
19 to 23 June 2017, NUI Galway, Ireland

The annual International Criminal Court Summer School at the Irish Centre for Human Rights is the premier summer school specialising on the International Criminal Court. The summer school allows participants the opportunity to attend a series of intensive lectures over five days. The lectures are given by leading academics on the subject as well as by legal professionals working at the International Criminal Court. The interactive and stimulating course is particularly suited to postgraduate students, legal professionals, scholars, and NGO workers. Participants are provided with a detailed working knowledge of the establishment of the Court, its structures and operations, and the applicable law. Lectures also speak to related issues in international criminal law, including: genocide, war crimes, crimes against humanity, the crime of aggression, jurisdiction, fair trial rights, and the rules of procedure and evidence.
This year’s ICC Summer School will include a topical special session on Corporate Crimes and the International Criminal Court.
The list of speakers at the 2017 ICC Summer School includes the following: Professor William Schabas (Irish Centre for Human Rights/Middlesex University); Professor James Stewart (University of British Columbia); Dr. Fabricio Guariglia (Office of the Prosecutor, International Criminal Court); Professor Megan A. Fairlie (Florida International University);  Professor Ray Murphy (Irish Centre for Human Rights); Dr. Rod Rastan (Office of the Prosecutor at the International Criminal Court); Dr. Mohamed M. El Zeidy (International Criminal Court); Professor Donald M. Ferencz (Middlesex University);  Dr. Noelle Quenivet (University of the West of England); Dr. Nadia Bernaz (Middlesex University); Dr. James Nyawo (INTERVICT, Tilburg University); Dr. Nadia Bernaz (Middlesex University); Mr. Richard J. Rodgers (Global Diligence LLP); Mr. John McManus (Crimes Against Humanity and War Crimes Section, Canadian Department of Justice); Dr. Noelle Higgins (Maynooth University); Dr. Shane Darcy (Irish Centre for Human Rights).
The registration fee of €450 includes all conference materials, all lunches and refreshments, a social activity and a closing dinner. The registration fee also includes a complimentary copy of Professor William Schabas' book 'An Introduction to the International Criminal Court'. The closing date for registrations is 1 June 2017.
To register and for more information regarding the 2017 ICC Summer School, please visit our website  and follow us on Facebook or Twitter.
Should you have any queries, please email us.

Thursday, 5 January 2017

ICC extends war crimes of rape and sexual slavery to victims from same armed forces

Trial Chamber VI of the ICC issued a very interesting decision in the case of Ntaganda yesterday. At issue was the Defence's argument that the Court could not have jurisdiction over the crimes of rape and sexual slavery allegedly committed against UPC/FPLC child soldiers, because war crimes cannot be committed against combatants from the same armed forces as the perpetrator. Such crimes, the Defence argued, would come within the ambit of domestic law and human rights, and were not covered by the war crimes prohibition. 

The argument, on its face, is rather convincing - the Geneva Conventions and their Additional Protocols explicitly protect certain categories of persons, principally sick, wounded and shipwrecked persons not taking part in hostilities, prisoners of war and other detainees, civilians and civilian objects. Ntaganda is charged with these crimes under Article 8(2)(e)(vi) of the ICC Statute, which defines the war crime as:
Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;
The chapeau of Article 8(2)(e) enumerates the crimes therein as being 'other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law'. It stands to reason, then, that we would examine that established international law framework in seeking to determine whether fellow combatants from the same armed forces as the perpetrator are protected by that framework.

Common Article 3 refers explicitly to 'persons taking no active part in hostilities', while Article 4 of Additional Protocol II (which contains the prohibition on outrages upon personal dignity, rape, enforced prostitution and any form of indecent assault) applies only to those 'persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted'. 

The most obvious way to resolve this issue would seem to be to acknowledge that Article 8(2)(c) and (e) crimes cannot be committed against those actively taking part in hostilities, but to argue that those victims identified in paragraphs 66-72 of the Confirmation Decision as having been abducted to act as domestic servants and, in the words of one witness, provide 'combined cooking and love services' were obviously not actively taking part in hostilities. 

Yet, other victims mentioned in the Confirmation Decision acted as bodyguards, while other young girls abducted by the UPC/FPLC and later raped by soldiers in camps underwent military training, from which we can assume that they probably carried out some military functions. The issue here is that the Trial Chamber in Lubanga embraced a much broader definition of 'active participation in hostilities', in order to include a wide range of children who were forcibly recruited as victims under Article 8(2)(e)(vii). It determined, in paragraph 628, that:
Those who participate actively in hostilities include a wide range of individuals, from those on the front line (who participate directly) through to the boys or girls who are involved in a myriad of roles that support the combatants.
At the time of the Lubanga judgment, several authors noted that this expansive definition may have unintended negative consequences for the protection of children in armed conflict. For example, Nicole Urban argued that, 'Should the sexual exploitation of and violence against child soldiers render them ‘active’ participants in hostilities under one Article, there is a real risk that they will also be considered as active participants in hostilities under the others.' In a sense, the chickens have now come home to roost, as the Court in Ntaganda has to marry that interpretation, which seeks to protect child soldiers as victims of forcible recruitment, with an interpretation that includes them within the ambit of Article 8(2)(e) when they become victims of other war crimes.

The Pre-Trial Chamber took the position that individuals only lose their protection 'for such time' as they are actively participating in hostilities, and that those who were raped and subjected to sexual violence were clearly not participating in hostilities at that time. This interpretation is somewhat problematic, as it sidesteps the situation of those members of the armed groups who bear a 'continuous combat function'. 

Trial Chamber VI in yesterday's decision took a rather different approach, by determining that:
While most of the express prohibitions of rape and sexual slavery under international humanitarian law appear in contexts protecting civilians and persons hors de combat in the power of a party to the conflict, the Chamber does not consider those explicit protections to exhaustively define, or indeed limit, the scope of the protection against such conduct. (para. 47)
It went on to conclude that, because the prohibition of rape had attained jus cogens status under international law (para. 51), 'such conduct is prohibited at all times, both in times of peace and during armed conflicts, and against all persons, irrespective of any legal status', and that it did not, therefore, need to determine whether the victims were 'members' of the armed forces at the relevant time (paras. 52-53).

This decision neatly sidesteps the issues surrounding the notion of active participation in hostilities raised by the Lubanga judgment. Yet, the conclusion that members of the same armed force are not per se excluded as potential victims of war crimes is a very expansive interpretation of Article 8, and one that is not fully reasoned in the judgment. The decision appears to be founded on two separate aspects. 

The first is that not all war crimes need to be committed against protected persons (para. 37). The Chamber referenced a number of sub-paragraphs of Article 8(2)(e) in this regard, namely Articles 8(2)(e)(ix) and (x) on perfidy and denying that no quarter will be given, in support of this argument. This is not entirely convincing, as Article 8(2)(e)(ix) explicitly refers to killing or wounding 'a combatant adversary' treacherously. Article 8(2)(e)(x), prohibiting a declaration that no quarter will be given, is explicitly prohibited because it would result in the killing of persons hors de combat

The second justification for the decision appears to be the widespread prohibition of rape and sexual violence under international humanitarian law. The Chamber considered that to limit the protection against rape to exclude members of the same armed group would be 'contrary to the rationale of international humanitarian law, which aims to mitigate the suffering resulting from armed conflict, without banning belligerents from using armed force against each other or undermining their ability to carry out effective military operations.' Given that there could be no military objective or justification to engage in sexual violence against any person, regardless of whether or not that person was a legitimate target under the law of armed conflict, the Chamber considered that the prohibition of sexual violence under IHL was not limited to certain categories of persons, and that anyone could be a victim of this war crime. This justification is more convincing, but leaves many questions unanswered, as it seems to be limited to the prohibition of rape (which the Chamber considered to be a jus cogens norm of international law). We might ask, for example, whether armed forces who commit acts of humiliating or degrading treatment against their own members, or who deny those members a fair trial, may now find that they are committing war crimes under Article 8 of the ICC Statute. 

This decision is clearly founded in a desire to offer the greatest level of protection to victims of sexual violence in armed conflict, regardless of their status. A similar argument was made in the ICRC's updated commentary to Common Article 3 of the Geneva Conventions, which stated that 'all Parties to the conflict should, as a minimum, grant humane treatment to their own armed forces based on Common Article 3.'

It will certainly be interesting to see what states' reactions to this expansive interpretation, and what the broader consequences of this decision, will be.