Monday, 23 December 2013

Article: The European Union and Abolition of the Death Penalty



CHRISTIAN BEHRMANN AND JON YORKE, The European Union and Abolition of the Death Penalty, 4 PACE Int'l L. Rev. Online Companion 1 (2013) 1-78.

For the full article in the PACE International Law Review Online Companion, see, 

http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1038&context=pilronline


ABSTRACT
The European Union has become a leading regional force in the progress towards a world free of state sanctioned judicial killing in the form of the death penalty. This article investi- gates how the EU has evolved its abolitionist position. It ana- lyzes the development of the region’s internal policy beginning in the European Parliament, to the rejection of the punishment being mandated as a Treaty provision, which evolves into an integral component of the external human rights project. The EU has now formulated technical bilateral and multilateral in- itiatives to promote abolition worldwide. This is most clearly evidenced in the EU playing an important role in the 2007 United Nations General Assembly Resolution on the moratori- um on the use of the death penalty, and the strengthening of the resolution in 2008, 2010, and 2012. This article demon- strates that the EU’s contribution to the abolition of the death penalty is a recognizable success story of human rights, and it is one aspect of the regions’ policies that was rewarded in 2012 with the Nobel Peace Prize.

TABLE OF CONTENTS
I. Introduction..............................................................................3 
II. Internal Policy and the Abolition of the Death Penalty ........6 
A. The Evolution of the Political Process ...........................6
B. The EU Treaties and the Formation of Internal Abolition Criteria................16 
III.Abolition and the EU’s External Human Rights Policy ......23 
A. EU Guidelines on the Death Penalty...........................24 
B. Bilateral Diplomacy......................................................25 
i. General Bilateral Action ........................................29 
ii. Individual Cases....................................................34 
IV. Amicus Curiae .....................................................................35 
V. Action in the Multilateral Fora ............................................56 
VI. Transfer of Persons in Security Circumstances..................62 
VII. Prohibition of the Trade in Execution Technologies .........64 
VIII. Funding of Abolitionist Civil Society Organizations ......72 
IX. Conclusion: A Human Rights Success Story .......................76 
Appendix 1.................................................................................77 

Monday, 2 December 2013

Observations on the Benefits of International Clinical Placements for Law Students

by Sarah Cooper, Barrister and Senior Lecturer in Law, BCU Law School

In October 2013, I attended the Clinical Legal Education Organisation Workshop hosted by the University of Portsmouth.  Given my experience co-directing Birmingham City University’s American Legal Practice (ALP) Programme, which is the largest UK – USA legal internship programme in the UK, I was invited to sit on a panel discussing international clinical placements for law students. To date, BCU has provided around 500 students with the opportunity to work pro bono in an American law office, project or organisation for academic credit, and has created relationships with over 100 hundred host partners. Along with my colleagues at the Centre for American Studies at BCU (Professor Julian Killingley and Dr Jon Yorke), I also contribute to the Amicus Training Programme that readies students and professionals to undertake death penalty internships in America. This blog post shares some of the main benefits of international clinical placements.

Student Experience and Employability
Internships provide an excellent student experience and demanding learning curve by thrusting students into dynamic and unfamiliar working environments. Students can finally put theory into practice. Students are expected to conform to office etiquette and handle the pressures of often stressful work environments, such as court rooms, prisons and crime scenes. Students handle a plethora of work tasks including legal research, motion/ brief drafting, presentation formulation, witness and client interviews, and jury selection analysis and legal strategy meetings. They also engage with a variety of professionals including attorneys, psychiatrists, investigators and public officials, which encourages the development of a variety of social skills that are imperative to them becoming successful professionals. Students are exposed to a diverse range of political, cultural and lifestyle choices in the US and are asked to embrace and understand the differences between the people, places and opinions they encounter. The fact that students carry out their internships pro bono encourages them to develop a sense of community responsibility, economic considerations and to understand the wider use of the skills they have learnt in Higher Education. By creating more personable, confident, well-rounded and internationally aware young adults international clinical placements can have a massive intellectual impact.

National and International Impact
Students engage with very important work. For example, BCU students have worked on the defence cases of those alleged to have been involved in the 9/11 terrorist attacks in New York City, they have worked in the New York City Headquarters of the United Nations on refugee, gender and various ‘right to life’ issues, and at the American Bar Association in Washington DC, contributing to major research projects concerning prosecutorial misconduct. We have also had three students serve as clerks for a Third Circuit Court of Appeals Judge, and a Civil Court judge in Chicago. Numerous students have worked for the National Innocence Network and contributed to the work of innocence and justice projects. Others have worked on death penalty and serious felony cases for indigent defendants at industrious organizations such as the West Texas Public Defenders Office in Lubbock, Texas and the Death Penalty Litigation Clinic in Kansas City, Missouri.  Students are exposed to the most prestigious legal organisations in the United States and thus the programme not only offers students an opportunity to observe world issues from a front line position, it provides them with a genuine opportunity to shape them.

Student Achievement
The majority of students obtain first class grades for their practical performance as interns from their host.  Students clearly perform excellently in their personal as well as professional interactions, and absorb a lot of useful information in short periods of time. A number of our students have even been offered jobs by their hosts after completing their internships. An internship of this kind, of course, is also an attractive feature on a CV. Many of our students have reported their internships have been a focus point for discussions at job interviews, scholarship applications, and applications for further study.

Of course difficulties can also arise when providing international clinical placements.  The appropriate provision of academic training can be overly intensive for students, and, in particular, training students in cultural and political nuances can be tricky. Moreover, the making of logistical arrangements can be resource intensive (for academics and students), as can the development of new contacts and sustaining of long-term host partners. There is also a lot of intuition that goes into placing students. There is a particular knack to knowing what type of student will suit a particular host. Also, sometimes students may only realise an international placement is not for them when they arrive on foreign soil, as such it is also important to develop contingency plans.

In my experience, the benefits of international clinical placements far outweigh these potential difficulties. Moreover, at a time when students must distinguish themselves in order to successfully compete in a job market that is becoming increasingly global in nature, an international clinical placement may be the key to success. 

Thursday, 21 November 2013

Conflict in the Central African Republic

By Miss Ruwaida Abubakar, African Regions Editor 

The flag of Central African RepublicThe civil unrest in the Central African Republic is a humanitarian crisis that can no longer go unnoticed. The coalition rebel group ‘The Seleka’ led by Michel Djotodia was initially a rebel group known as the Union of Democratic Forces of Unity (UFDR). The rebellion by this group is what began the Central African Republic Bush War. However there were many other rebel groups but they were very small and founded at the very end of the war. Apart from the UDFR the other rebel groups involved in the conflict were the ‘People's Army for the Restoration of Democracy (CAR) (APRD), Groupe d'action patriotique pour la liberation de Centrafrique (GAPLC), the Movement of Central African Liberators for Justice (MLCJ), the Front démocratique Centrafricain (FDC), and Union of Republican Forces (UFR).

The fighting began in 2004, and between 2007 and 2012 a number of peace agreements were signed to try and resolve the conflict. The most important of which was the Global Peace Accord which was signed in Libreville Gabon on 21st of June 2008. This agreement was signed by UDFR, APRD and FDPC groups. The agreement granted amnesty for any acts perpetrated against the state prior to the agreement, and called for a disarmament and demobilization process to integrate former rebels into society and the regular CAR armed forces. The only other major rebel group that did not sign this agreement at the time was the CJPJ which continued its activities until the 25th of August 2012 when they signed an agreement with the government led by François Bozizé. During this conflict hundreds of civilians were killed, 10,000 houses were burned and approximately 212,000 people have fled their homes to live deep in the bushes of the northern Central African Republic.

After the CAR Bush War was resolved, another conflict started in December 2012 between the Government and the Seleka. The Seleka is a coalition rebel group which consists of the groups that were previously fighting in the CAR Bush War, led by Michel Djotodia. This current conflict arose because the rebels felt that the Bozizé government failed to abide by the peace agreements that were signed to end the CAR Bush War.

Chad, Gabon, South Africa, Republic of Congo, Angola and Cameroon sent troops to the Central African Republic as part of the Economic Community of Central African States (ECCAS) to try and prevent the potential rebel takeover of the capital of Bangui and to help the Bozizé government, but their efforts failed and the rebels seized control of the Capital on 24th March 2013. The President François Bozizé by this time had fled the country and Michel Djotodia had declared himself president.

The CAR is Africa’s poorest and most underdeveloped country, since the rebels took over in March the country has sunk into a state of near-anarchy. When the Seleka took over the country, they promised a new beginning for the country, but instead they have abused their power and have carried out large scale attacks on civilians, looting and murder. The looting was not just limited to food or personal possessions, but pharmaceuticals also. Medicines are scarce and much medical equipment has been stolen, in some hospitals even the mattresses have been looted.  They have recruited children as young as 13 to carry out their horrendous actions.  The charity Save the Children have been informed that 100,000 children are facing sexual abuse or being recruited to the armed forces. They are being forced to flee their homes and some even have to witness their parents being threatened and beaten.

Rebels who are linked to the Seleka (led by Michel Djotodia) have continued to launch attacks across the country especially the North West which is the home town of the former President François Bozizé. That area is particularly being targeted because the rebels believe that they are supporters of the former president and are instigating the unrest.

One of the few organisations working in the conflict affected areas in the North West is the medical charity Medecins Sans Frontieres (MSF) delivering the much needed help that region requires. The MSF have said that they have seen entire villages being burnt down and have to treat victims for gun and machete wounds. ‘They have also witnessed the execution of a healthcare worker, multiple murders and violent attacks on humanitarian staff’ (MSF surgeon Erna Rijinierse). The work of the MSF is greatly needed in the CAR because since the Seleka came to power, there has been a complete breakdown of the health system as well as law and order.

Due to the burning down and destruction of people’s homes and villages (1000 homes have been deliberately destroyed in just 4 months in the Capital and in the provinces), there are numerous camps that have been set up in the affected areas. One of which is the town of Bossangao whom many have been treated by the MSF for gun and machete wounds, the displaced people have had to take shelter in the towns Catholic Mission, schools, airstrip and hospital. All these places have exceeded their capacity and have now become makeshift camps.

With so many people and such little space, the living conditions are dangerous and have become a breeding ground for malaria which is the number one cause of death in the CAR. Those who are unlucky enough to not be near any of these makeshift camps, have fled their homes and are living in the bushes in fear of more attacks with no food or water.

The Seleka have strong grievances against the previous government including many claims of human rights violations. Indeed, those suspected of working for the previous government, are at risk of extra-judicial killing. Human Rights Watch recorded that on the April 15 Seleka forces forced nine men suspected of being former soldiers into a vehicle and drove them to the Mpoko River, outside of Bangui. Seleka members summarily executed five of the men, those who survived told how they were driven to the river, made to line up, and readied for execution until a Seleka member realized that the men had not in fact been soldiers under Bozizé and spared those who had not yet been killed. In another example, a self-appointed Seleka official coordinated the killings of five men who were tied up and executed numerous suspected murderers associated with the army under ousted president, François Bozizé.

However the UN Security Council recently approved a resolution which allows the deployment of a UN peacekeeping force in the country. Also France has 400 troops based at the airport in Bangui in order to tame the violence in the country. The African Union is in the process of incorporating a regional force to also help with the resolution of violence. However, on September 13 transitional President Michel Djotodia dissolved the Seleka coalition and announced that the official state forces were in charge of security, but provided no details as to how these forces would neutralize the thousands of Seleka fighters across the country in order for there to be peace.

List of sources


Monday, 4 November 2013

Wrongful Convictions in the United States of America: The Case of Ray Krone

by Miss Sarah Lucy Cooper, Senior Lecturer in Law, Birmingham City University and Fellow of the Arizona Justice Project  

As of October, 2013, 311 people have been exonerated of crimes they did not commit by post-conviction DNA testing in America. 18 of those people had been sentenced to death before DNA exonerated them, and on average, each exoneree, served over 13 years in prison for a crime they did not commit. As the number of exonerees has steadily grew since the late 1980s, common causes of wrongful convictions have been identified.

The case of Ray Krone (Sarah is pictured to the right with Ray) America’s one-hundredth DNA exoneree, showcases a number of them. The naked body of Kim Ancona was found on the morning of December 29, 1991, on the floor of the men’s restroom at the bar she worked at in Phoenix, Arizona. She had been fatally stabbed, and had what appeared to be a bite-mark on her left breast.

Two suspects emerged early on in the police’s investigation: Ray Krone – a United States postal worker and patron of the bar where Ancona worked -- and an unknown Indian male. Friends and colleagues reported Ancona and Krone were romantically involved and that on the night of her death she had told a friend “Ray” was going to help her close the bar. Others told police there had been problems with American Indian males in the area. A note suspiciously dropped at the crime scene the night after the murder also described an “Indian” as a potential suspect.

Police visited Krone and observed he had crooked teeth. They asked him to bite into a Styrofoam plate, purchased from a convenience store, so that a cast of his teeth could be made and compared with the bite-mark on Ancona’s breast. Subsequently, the state criminologist reported Krone’s dentition was “consistent with” the bite-mark on Ancona. Soon-after, Krone was charged with Ancona’s murder. Until that moment, Krone had a clean criminal record and proud military past. The media dubbed him the “Snaggletooth Killer.”

The bite-mark was the focal point of the prosecution’s case against Krone at his trial in 1992. The state presented a renowned expert in forensic odontology, who testified that Krone’s dentition “matched” the bite-mark on Ancona, and who presented a videotape to demonstrate the “match.” The state also presented evidence that Krone and Ancona were romantically linked. Krone steadfastly denied he had killed Ancona, and that they were romantically involved or that he helped her close the bar on the night of her murder. His story remained the same – he had been at home watching TV then sleeping on that night. His defense, however, struggled to overcome the state expert’s bite-mark “match,” due to a lack of resources and availability of alternative scientific opinion from a comparable expert.

Krone’s defence lawyer had just a few thousand dollars to run the entire case, which was a mere fraction of what the state paid for its expert’s opinion alone. In 1991, DNA tests were not conclusive enough to include or exclude Krone as the killer. Plus, lots of the forensic evidence collected from the crime scene, such as fingerprints that could not be linked to Krone, never made it to the forefront of the trial. Krone was convicted of first degree murder and sentenced to death. In 1995, his conviction and sentence were overturned by the Arizona Supreme Court because the expert’s videotape had not been disclosed to the defense until the eve of trial. Krone was re-tried in 1996.

The state’s case was essentially the same, but the defense presented a far more robust case. This time, four nationally-recognized experts rebutted the state’s theory that Krone’s dentition “matched” the bite-mark on Ancona. In addition, the hair evidence now pointed away from Krone. Seventeen hairs had been found on Ancona’s body and none of them matched Krone. Crucially, DNA testing now established blood found on the inside pocket flap of Ancona’s jeans belonged to someone with a genotype different from both Krone and Ancona. Research indicated that the reported genotype was popular in the American Indian population. A poly-marker test also revealed a genetic profile found at the crime scene did not belong to Krone or Ancona. Still, despite all of this fresh evidence in Krone’s favour, he was convicted again.

This time, however, due to the lingering doubts of the trial judge, he was sentenced to life imprisonment. In 2001, Krone’s defense requested DNA testing on biological material present on Ancona’s bra, jeans and tank top. One year later, the results came back. None of the biological material on the items matched Krone’s DNA. Several of the items did, however, contain DNA that matched a man named Kenneth Phillips, who was on the FBI database and had an extensive criminal record. He was also an Indian.

Krone’s legal team interviewed Phillips at the Arizona prison where he was incarcerated. Within hours, they had elicited from Phillips what appeared to be admissions of guilt. Phillips reported that he had woken the morning after the murder with blood on his jeans and shoes, and that when he saw news reports on television he hoped he hadn’t committed the crime. Based on the DNA testing results and Phillips’ admissions, Krone walked free on April 8, 2002. Shortly after, additional testing officially exonerated him. The blood found on the victim’s jeans and panties matched Phillips, as did multiple fingerprints lifted from the crime scene. Notably, Phillips did not have a unusual dentition.

The Snaggletooth Killer was a myth. Krone’s case showcases a number of popular causes of wrongful convictions, including faulty and/or invalidated forensic evidence, target fixation, evidence suppression, and disparate resources. There are many more, however. Many wrongful convictions can be attributed to erroneous eyewitness identifications, false confessions, snitches, misconduct, and bad lawyering too. Krone was lucky. DNA evidence was eventually available to exonerate him. However, DNA is only available in around 5% of cases. Although DNA cases are certainly not easy to resolve, the other 95% of cases, even if they display a combination of the hallmarks of wrongful convictions, are almost impossibly difficult. Inmates in this bracket of cases are not alone, though.

Across the United States tens of innocence and justice projects take these cases and work relentlessly towards a fair conclusion. They also contribute to criminal justice reform and education. These projects are a mix of non-profit organizations, law school clinics, private bodies and other set-ups, and volunteer lawyers, academics and students from multiple disciplines are often the driving force behind them.

For students in particular, these projects present a unique opportunity to put theory in to practice and develop an ethic for pro bono work. I have been a pro bono Academic Fellow at the Arizona Justice Project since 2010 and can vouch for the fact that every contribution, no matter how small, counts. I have known students to unravel faulty forensic testimony, unearth a pivotal, once-thought missing document, track down key witnesses and build a rapport with inmates a lawyer could only dream of. So, get involved. You might just do the impossible.

Thursday, 17 October 2013

An Interview with Judge Paul Mahoney by Dr Jon Yorke

European Court of Human Rights, Strasbourg

JUDGE PAUL MAHONEY has spent much of his professional career at the European Court of Human Rights after being recruited by the Court on a temporary contract to work on the case of Golder v. the United Kingdom in 1974. He read law at Oxford University and University College London, taught law at University College London and practiced as a barrister for a while before moving to Strasbourg as a Registry lawyer in the Court from 1974-1990. He was the Deputy Registrar of the Court from 1995-2001, and Registrar between 2001-2005. From 2005-2011, he served as President of the European Union’s Civil Service Tribunal, and in 2011-2012 he was the Chairman of the European Space Agency Appeals Board. In July 2012, he was elected Judge on the European Court of Human Rights in respect of the United Kingdom.     



Question: What do you most enjoy about being a judge on the European Court of Human Rights? What do you find most challenging?

I am lucky because I work in an area that I care deeply about. Most people have an ambition to enjoy what they do, to earn a living. Thankfully, I have achieved that ambition and it is a privilege.  


What I appreciate about this Court, and my role as a judge, is that the end-product is a concrete input into European society - hopefully in contributing to mould Europe for the greater good. It is a measurable input. The results can be seen translated into changes – as I said, hopefully for a better society.  Laws, practices and, over time, attitudes can be seen to have changed.

The Court does not function in a vacuum of course, but operates within the framework of an overall Council of Europe human rights protection system. Parallel to that, governments, parliaments, ministries, public authorities, local councils, schools, universities – people in general - are now more aware of human rights values than they ever have been, and this Court has been, not the only or even the major, but certainly a significant contributing factor to this educative process. I do not share the view that the main consequence of greater human rights awareness is that people are now more selfish – that is to say, that human rights can be boiled down to a consumerist, self-centred culture of people saying, “I want my rights,” “I demand my rights.” There is of course some of that, but what is occurring mostly, in my opinion, is a positive change in Europe.  A more caring Europe.

What I also like about this Court is that no judge is able to assume that he or she has the monopoly of the interpretation of the Convention. Adjudicating on human rights, by definition, is an activity where no one has the monopoly of right answers. Cases before this Court raise difficult issues where law, social policy and politics intersect, and we have to try to deal with these issues in a dispassionate, objective, structured way.  The judicial decision-making process inside the Court is not an authoritarian one, but a collective one. Personally, I don’t like authoritarian styles of management.  The 47 judges are split between five Sections.  The seven-judge chambers within the Sections and the 17-judge Grand Chamber, and the individual judge rapporteur in the case, all function together to adjudicate on the intricate, and difficult, issues of human rights raised in those cases that are not clearly inadmissible or ill-founded.      

Often the case turns on whether the contested national measure meets the test of proportionality.  The Court is called on to review the actions of Member State Governments and to assess whether the measure adopted was excessive or imposed a disproportionate burden on the individual(s) affected. To arrive at a reliable assessment, you need different views on the various principles involved. That in essence is the heart of democracy, as I see it; generally speaking, the more people who are involved in decision-making, the more legitimate – and reliable - that decision will be. When it comes to social policy and human rights in particular, I think that democracy is best respected by according a certain deference to the product of democratic processes at the national level.

As a European citizen, not as a judge, I am not so sure that I want every aspect of my life to be decided by, dictated by, judges. I would prefer the democratic voice to be the major voice, with appropriate checks and balances, notably in the form of judicial protection of fundamental rights. There are times when the judges have to step in, but on the whole in political democracy the will of the people, as expressed through the vote and the normal functioning of democratic institutions, must be the major driving force of society, subject to proper judicial protection of individuals and vulnerable minorities from the excesses of majoritarianism.         

What do I find challenging? Well, there is a lot of work. I need to make sure that I find enough time to read the case-files properly and reflect on the cases. It is sometimes difficult because of the sheer volume of the caseload. The Court is under constant pressure from the Member State Governments to be more efficient and more and more productive, but, I have to say, this Court is more efficient in what it does than are many of the Governments who accuse it of inefficiency. But more on case-management and efficient adjudication for your question below.  

Another critical challenge that the judges on the Court face is to keep in contact with the home country and the public. The job here, as a judge, is not simply to sit in the office, produce judgments, and then go home at the end of the working day. There is also, I think, a duty to act as a kind of ambassador for the Court, and to be available to explain to practising lawyers, bar councils and universities what is going on here. Of course, finding the time to do this is difficult, but it should be done.

There is a lot of misunderstanding in the popular press on what the Court does, and even on what individual judgments have or have not decided.  The Court and its judges therefore have a responsibility to make sure that they communicate to the wider world the reality, and the value, of what the Court does. Both the Court as an institution and individual judges, as part of their job (subject to what the continentals call the “duty of discretion”), have a professional responsibility to communicate and to provide an appropriate level of transparency. 



Question: You were the Deputy Registrar from 1995-2001 and the Registrar from 2001-2005, to what extent to you think your previous experiences in the Court have helped you in your role as a Judge?


Your question only explores part of my story. I was recruited by the Court in 1974 to work as a junior case-lawyer preparing the case of Golder for hearing, the first British case to come before the Court, a case that concerned access to court and prisoners’ correspondence rights – what was then called civil liberties having been one of my interests when starting out at the bar in London. 

I was a first-hand witness, not to the birth of the Convention system in the immediate post-war period of course, but to the crucial early period when the main planks of the case-law were put in place. Some of the judges who sat on the Court during that early, creative period had lived through the Second World War and had been Nazi prisoners; others were Supreme Court judges or former leading statesmen in their countries or world-renowned professors of public international law. Great thinkers of their time. A fantastic generation of jurists who laid the foundations of the Convention principles that we now take for granted. They knew what denial of human rights could lead to. 

I was therefore a witness to the early childhood and adolescence of the Commission and Court, and to the laying and the painstaking, progressive consolidation of the Court’s jurisprudential foundations from which it now works and evolves.  Through the 1980s and 1990s, when the landmark judgments were being delivered. As the responsible case-officer, I drafted many of the now historic texts – on the instruction of the judges of course.  The practice of the Court then, as it is now, was for the Registrar and the case-officer to sit with the judges in the deliberations and to take notes; and then to turn the reasoning of the majority (which sometimes comprised several strands of thinking) into a draft judgment. The Registry is still the instrument for preparing the judgments of the Court in the two official languages of the Court, French and English. When I started, there were ten Registry staff in the Court and 30 in the Commission in total; now, the Court’s Registry numbers 650 or so staff members, with nearly 300 lawyers alone.

So I was lucky to be here at the jurisprudentially formative period of the Court. Nowadays, because of the explosion of the caseload, in particular the mass of unmeritorious applications, there is an aspect of the Court’s functioning that is more like a factory, a highly-regulated production-line for processing cases in an extremely summary procedure, with heavy reliance on computerisation (I am referring here to the single-judge procedure for processing clearly inadmissible or clearly ill-founded applications).  This is the world we live in; the Court needs to constantly find ways to efficiently deal with its ever-increasing caseload. 

As I said, the Court has an essentially collective decision-making process. There is no ideal profile for a judge. What gives the Court its strength is the variety of approaches that different judges bring. To take my own example, my professional background is weaker in terms of previous legal practice in the home country, but I bring to the table my years of experience in international human rights adjudication and in European law, including EU law, in general.  Through working on thousands of cases going through the Strasbourg Court, I have acquired a wide-ranging general knowledge of the constitutional law and legal systems of countries throughout Europe. I have had the benefit of judicial experience in Luxembourg at the “other” European Court, as a judge in a specialist chamber of the European Court of Justice. 

My previous career in the Court gives me a historical view on many of the Convention legal issues that come up.  An understanding of the historical perspective is not without value. I often have a good idea why the case-law was expressed in a particular way and what the judges were intending to achieve when they opted for this or that formulation. That does not mean that the Convention law should remain immutably the same and never move on, but to know where the existing case-law came from can be extremely useful.  I was also secretary of the Court’s rules committee in the 1980s - 90s, and I can draw upon this experience as well.


Question: What do you think are the greatest challenges facing the Court?

One of the major challenges is what you might call mechanical - the well-known problem of case overload. As a member of a small working party set up by the European Law Institute (“ELI”), I worked on a paper entitled “Statement on Case-Overload at the European Court of Human Rights,” with Jean-Paul Jacqué – who was one of the primary drafters of the EU Charter of Fundamental Rights –, with Mark Entin, who is now the Russian Ambassador in Luxembourg, and with the former President of the European Court of Human Rights, Luzius Wildhaber. The ELI, whose membership comprises academics, practicing lawyers and judges, is a non-profit-making organisation that initiates, conducts and facilitates research in the field of European law. Its mission is to try to improve the quality of European law for the benefit of the citizen.


The paper that we prepared for ELI came out after the April 2012 Brighton Conference on the future of the Court, organised by the United Kingdom Government in its capacity as chair of the Committee of Ministers of the Council of Europe.  It is reassuring for us on the ELI working party – since the paper was prepared under pressure in a rather short time – that many of the points we made have been borne out by intervening developments, and most of the other points are still “in the air”.   

The Court has had to confront a real problem of case-overload. Clearly inadmissible cases make up the bulk of the caseload.  The applicants in these cases are no less entitled to a decision within a reasonable time than the applicants in meritorious cases. The annual figures vary, but generally speaking such cases represent in the region of 90% of the applications disposed of.  At one stage, in September 2011, the number of pending applications was 161,000, made up mainly of a backlog of these “unmeritorious” cases.  The backlog situation has been helped by the adoption of Protocol No. 14 and the advent of the single-judge procedure, with the assistance of the non-judicial rapporteur and the dedicated Filtering Section that has been set up within the Registry.  The hope is that by 2015, there will no longer be any backlog of such cases. On 1 October 2013, 111,350 applications of all kinds were pending – a reduction of 50,000, almost a third, in two years.

Following Protocol No. 14, the policy is that all clearly inadmissible or clearly ill-founded applications are to be dealt within an expeditious time frame. This represents a more efficient use of the Court’s time and resources, while at the same time it shows respect for the applicants whose applications fall into this category, as they receive an answer to their complaint, albeit a negative one, within a reasonable amount of time. The Filtering Section of the Registry, which handles the organisation of the single-judge procedure, has a special programme for progressively eliminating the backlog of such applications that has accumulated over the years; and a “one-in-one out” policy is operated to prevent any further backlog building up.


However, there is the problem of the remaining cases, which are not manifestly inadmissible, or not manifestly ill-founded.  Here the Court needs to develop appropriate procedural strategies for processing these cases, since there is little or no likelihood of the budget being significantly increased. In endeavoring to handle the problem under any new procedural framework, it must not cut down on the right to individual petition, which is itself an extremely important “human right.” The new single-judge procedure and Filtering Section are in place, and we will have to wait and see if the resources that this manner of proceeding frees up will enable the Court to satisfactorily deal with the caseload of “meritorious” cases without any need for radical change.  The ELI paper did foresee the possible need for a radical change of approach as regards the treatment of meritorious applications if the situation did not evolve, but the attitude of the Court itself, as I read it, is a much more cautious one of consolidating its modus operandi on the basis of the quite radical procedural changes introduced by Protocol No. 14 before envisaging any further changes to the procedural framework set out in the Convention.  

So, as the ELI working party said in its “Statement,” you have to take a nuanced approach to the caseload: it is made up of several quite different categories of cases, each category with its own specific needs and problems, even within the smaller general category of “meritorious” cases.

For this reason, the Court implemented a priority policy in 2009 with the emphasis on processing the most serious and most urgent applications.  As a result, the Court no longer takes meritorious applications in chronological order but in order of their importance under the priority policy (which is explained in a document on the Court’s website).  That is to say, the Court now gives priority of treatment to requests for interim measures under Rule 39 of the Rules of Court, to cases which involve the core rights, to cases where there is a risk to life, health, human dignity or which seriously affect specific personal or family circumstances, for instance when the well-being of a child is at stake. Also cases that may have an impact on the working of the Convention system fall into this category of priority treatment, as do applications raising other issues that have an important bearing on Member States’ judicial and political systems.    

In 2012, the Court delivered 1093 judgments concerning 1678 applications. Given that some 6,000 high-priority cases are currently pending, and if the rhythm of judgments delivered is taken to be in the range of 1500 per year, then four years would be needed to clear the backlog of high-priority cases. In addition, the Court has on its docket the growing list of non-priority “meritorious” cases (some 16,000 so far), and also 46,000 repetitive cases. In this latter category, there are, for example, over 2,000 British prisoners’ voting-rights cases on file. These all need to be dealt with. 

With particular reference to repetitive applications following up a main (or pilot) judgment where a violation has been found because of some systemic shortcoming in the national legal system, it can be seen that there are many, many pending cases which on their merits, although not illustrative of a serious violation of human rights, can be described as “manifestly well-founded.” The Court does not have the resources to process these cases expeditiously according to the standard adversarial procedures as they exist now. The Court is therefore investigating ways of processing repetitive cases more efficiently within the existing procedural framework under the Convention. It might be that, through internal initiatives, the Court will be able to work out a modified procedure to deal with them more efficiently. It is in everybody’s interest that we find solutions to these procedural blockages. Although, I will say, the Registry is doing a marvellous job in keeping the applications coming through, and aiding the judges in dealing with them.   

Another important challenge for the Strasbourg Court, and the Council of Europe in general, to meet is to keep the European peoples supportive of the Council of Europe system of human rights protection. It is not just the Governments which should be regarded as the stakeholders of the system, but also the public in the 47 Convention countries.

A parallel consideration is that the principle of subsidiarity inherent in the Convention means that the national judges in the domestic legal order are supposed to be doing the bulk of the work of judicial protection of the human rights of the citizen against State action.  This will be facilitated through the national judges having confidence in the quality of the judgments coming out of the Strasbourg Court. In many ways, when adjudicating on cases at the national level and then the international level, the national judges and the Strasbourg judges are involved in a judicial conversation on the scope and extent of the human rights standards guaranteed under the Convention. 

Consequently, alongside a “respectful,” cooperative judicial dialogue with the national courts accomplished through judgments delivered, the Court has to keep the support of the NGOs and the public. The support of the NGOs, in particular, is something that has greatly helped the development of the Convention system.

Some people might feel that it is not a proper judicial function to consider these issues – the legitimacy, the acceptability of the Strasbourg judgments (call it what you will), but, for me, it is a question of necessity. Ordinary people – not just the professionals: the legal profession, the elected politicians, the civil servants and so on - have to have confidence in the human rights “project” as an integral part of democratic society in modern Europe; and the Strasbourg Court is a crucial component in helping to maintain the public’s acceptance of the notion of international as well as national mechanisms in society to protect human rights. 

As far as the Strasbourg Court is concerned, there needs to be an understanding that “foreign” judges are not being overbearing and imposing illegitimate restrictions on their democratic processes, from far away on top of an ivory tower.

Interviewer’s observation: I think that in recent times the Court’s website has significantly improved. The HUDOC search engine, factsheets, multi-media, including podcasts of hearings in the Chamber and Grand Chamber, have also helped with transparency.     

Yes, recourse to multi-media has helped tremendously. One of the objects of broadcasting the public hearings on the web is that it gives the Court a face to the world. It makes the Court visible. The Court’s press team is there to help make sure the public understand what the Court is doing and why. Human rights are not, and should not be, the monopoly of the liberal left – or the conservative right, for that matter; they are universal and all those across the democratic political spectrum are entitled to have their views and policies on how best society should protect individual human rights while taking account of the legitimate general interest of the community.  The Court’s recourse to the internet, and web-casting of hearings in particular, helps prevent misinformation about pending cases and distortion of the arguments presented at the hearings. This especially concerns those countries where the media may not be as free as they are in the UK; but even in the older-established democracies, sometimes the media don’t get it quite right.  In sum, the Court’s use of the internet serves to foster transparency and enables the legitimacy of what the Court does to be established.   



Question: What do you think is the most significant contribution of the Court to the evolution of human rights in the Council of Europe?  

The Court is a key component of the Council of Europe human rights system, which includes other “control” entities such as Committee for the Prevention of Torture, the European Commission against Racism and Intolerance, the bodies under the European Social Charter and so on.  The Court is not merely one little brick in the wall, but it is not the whole wall either. It is one of the human rights institutions of the Council of Europe, along with the Committee of Ministers, the Parliamentary Assembly and now the Commissioner for Human Rights, the Congress of Local and Regional Authorities and the Conference of International Non-Governmental Organisations. All of these different entities go to make up an overall Council of Europe system for protection of human rights in Europe.  So the Court does not exist or operate in a vacuum. 


Neither should it be completely isolated from the national systems. What the Strasbourg Court does is act as a kind of international human rights insurance policy available to help everyone coming within the jurisdiction of those European States which have joined together in a collective endeavour under the European Convention.  It provides the opportunity in appropriate instances for an independent and impartial judicial review of human rights implementation outside the confines and pressures of the national legal order.

The Court provides a kind of anchor for this loose Council of Europe system; it has a decision-making competence vis-à-vis the national authorities that the other entities do not have. One of the Council of Europe’s objectives is to ensure the protection and the promotion of human rights for the peoples of Europe. The Committee of Ministers establishes a work programme of inter-governmental cooperation for the Organisation, covering also human rights, and to that end it sets targets, monitors situations; the Parliamentary Assembly initiates ideas, has debates involving parliamentarians from all the member countries’ national parliaments and makes recommendations in the field of human rights; whereas the Court sets out the authoritative interpretation of the Convention law on the basis of applications lodged. The Court does not have a roving mandate to change the Convention law whenever it feels like it; its intervention depends upon, and is triggered by, cases. Cases are the catalyst for the Court’s building up a kind of European common law on human rights.

The Strasbourg Court is not in the game of imposing uniformity on all the 47 Contracting States. Its task is to help develop human rights and political democracy. People should work out for themselves through normal democratic processes at national level how they are to be legitimately governed. The Court’s task, apart from deciding the particular case, is to spell out the relevant values and principles to be taken into account by those who have to decide at national level.  Of course, you do get cases that set specific precedents for specific factual contexts, and that thereby establish a kind of uniform route to be followed. But generally speaking, the European Convention does not impose uniformity, as does happen in the EU. 

Thus, the Court is at the heart of the Council of Europe human rights system, where the Parliamentary Assembly advises, the Committee of Ministers legislates and the Court interprets. The result is that the Court produces the raw material (judicial rulings over a disparate area of human rights issues), and the Committee of Ministers sees to it that Member States execute the judgments in individual cases, as well as building on the case-law in general to draw up inter-governmental programmes of cooperation and action. The Committee of Ministers and the Parliamentary Assembly provide an element of reinforcement and follow-up to the judicial mechanism of human rights protection under the Convention. 


Question: How do you envisage the working symbiosis of the European Court of Human Rights and the Court of Justice of the European Union?

I hope it works. When the EU ratifies the Convention, it will not be as a Contracting Member State.  The EU is not a State or even a federation of States; it is an international organisation. So it may be that this Court should not treat the Luxembourg Court exactly the same as a national supreme or constitutional court. At the European level, there is likely to be, I suspect, a kind of split of responsibilities between Strasbourg and Luxembourg.  The Strasbourg Court evidently has a wider remit in terms of human rights and a wider membership.  The centre of gravity of this Court is human rights, whereas that is not so for the Court of Justice of the European Union in Luxembourg. The Strasbourg Court is at the apex of the human rights pyramid, if you like, and so will have the last word. Nonetheless, there is already a large degree of common ground - “European” harmonisation - between the Strasbourg and Luxembourg systems in the human rights domain, which has culminated in the adoption of the EU Charter of Fundamental Rights and the references to the Council of Europe’s Convention in the Lisbon Treaty.  Also the legal acts whose compatibility with human rights the Luxembourg Court is called on to decide are already the product of a harmonising process of 28 European States acting together. The margin of appreciation to be recognised – in appropriate contexts - to the Luxembourg Court may therefore perhaps be different from that recognised to a superior national court because we are dealing with a partner court of the Strasbourg Court. Again we shall have to wait and see.

It is not, I believe, to be regarded as some kind of negative political consequence for the Convention system that the EU has adopted its own Charter of Fundamental Rights with wording different from that of the Convention. In fact, this is a normal move in the modern development of political democracy that the holders of power should undertake a legally binding, visible engagement to respect human rights. 

There is no competition as such between the two Courts.  Both European Courts now adjudicate in the realm of human rights. The EU’s ratification of the Council of Europe’s Convention represents the making of a gesture to the peoples of Europe which demonstrates, among other things, that the two European Courts will be working together. The Council of Europe and EU judicial systems will work together to create shared standards of human rights. In my opinion, in both Courts there is a genuine desire to work in harmony. That is not to say that there will not be problems in the future, which will have to be resolved  - no one is infallible; but we will just have to deal with the issues as they arise, step by step. 

On the basis of my experience at the Luxembourg Court, there is a genuine commitment of that Court and its judges to promoting human rights in the EU legal order, and there is an understanding that for the human rights set out in the Convention the Strasbourg Court will have the final say. On the other side, it would appear that the agreement negotiated between the EU and the Council of Europe on the terms of the EU’s accession to the Convention contains safeguards to ensure that the monopoly of authoritative interpretation of EU law will continue to reside in the Luxembourg Court in the context of any proceedings against the EU and its Member States in Strasbourg.  



Interview conducted on 5th September, 2013. 

Sunday, 13 October 2013

Children’s Defence Fund urge Americans to protect children and uphold their right to education during the current federal shutdown

by Simone Knights, HRPL Blog, International Nongovernmental Organisations Editor
Children's Defense Fund: Be Careful What You Cut, Homeless


The repercussions of the federal government’s shutdown in America has had a dramatic impact on America’s poorest children. The Children’s Defence Fund, an independent children’s organisation, has an ongoing campaign called “be careful what you cut”. This is a campaign against the cuts to the educational deficit, which if continue would leave the poorest children in the United States without early education.

The most recent concern of the Children’s Defence Fund, is the impact the government shutdown in America has had on education. With 90% of the U.S. Department for Education on leave of absence, funding for Americas poorest children has been delayed. This funding comes from the federal programme ‘Head Start’. This programme is specifically designed to help young children from low-income backgrounds develop cognitive, social and emotional development. 

The Government shutdown began on the 1st October 2013. It has been reported that by the 4th October five ‘Head Start’ chapters had been forced to close due to lack of funding, impacting an estimate of 5,000 children. This has also impacted the workers of the ‘Head Start’ programmes, as due to the temporary closing workers have been sent home without pay. 

Head Start programmes continued to be at risk of closing. However, the Arnold Foundation have announced a sum of $10 million to be given away, so those chapters that have already closed, and those at risk of closing, can stay open during the federal shutdown. In their statement they stated they have given this money “in an effort to address this injustice” and that, “it is especially unfair that young children from underprivileged communities and working families pay the price for the legislator’s collective failures”. 

On a sheer matter of policy - is it an example of "social justice", that there has been a requirement put on anyone but the government, to fund the early education of America’s poorest children? Furthermore, is it justice that individuals are paying to uphold the right to an education due to the shutdown?

The Children’s Defence Fund (CDF) are a non-profit advocacy organisation, which specialise in the rights of children. They bring awareness and champion policies that aim to get children out of poverty, protect children from abuse and neglect and ensure access to healthcare and education. Their ‘mission statement’ is leave no child behind. They report that every 29 seconds a child is born into poverty in America, and they aim to influence the public policies of America towards children, by looking at what every child should have as a basic right. For example, food, education and health care. 

One of their campaigns is “be careful what you cut”. This takes many forms to bring awareness and pressurise the American government to stop the cuts that have already taken place on education. These include a CDF budget principles document, which then intertwines with a letter to that person’s local congress, urging them to re-evaluate the budget cuts already made, and support an appeal against those that have already taken place. 

Due to the cuts already made, 97% of eligible infants and toddlers are not served/educated by ‘Head Start’ due to lack of funding. CDF also have a campaign to use Facebook and twitter to show support for the “be careful what you cut” campaign. Which involves using one of the images representing the campaign as a profile photo. They also urge supporters to reach out to one of their local print publications, asking for a donated space, and choose an add to spread awareness of the impact the cuts are having on America’s poorest children.

To help raise awareness of the important work of the Children's Defense Fund, please see:  



Further Sources:

https://secure.childrensdefense.org/site/Advocacy?cmd=display&page=UserAction&id=454

Monday, 19 August 2013

Reflecting on the Crisis in Egypt on World Humanitarian Day

Today is the United Nations,' “World Humanitarian Day,” in which the global human rights community envisages and reflects upon a future of peace, dignity and freedom.  However, we are currently witnessing mass human rights violations inflicted by Egyptian peoples upon one another. The Egyptian military and security forces under the command of Adly Mansour, acting President of Egypt and Head Judge of the Supreme Constitutional Court, and the ousted President Mohamed Morsi and his Muslim Brotherhood’s Freedom and Justice Party, continue to cause mass violence across the country. Since the 3 July 2013 ousting of President Morsi, the civil upheaval has escalated into various conflict scenarios which have been reported by the world’s media and civil society networks. They have streamed to us the growing death rates and injuries, state curtailment of protests in and around Cairo and across the country, threats to the security of the state, threats to journalists, civil society and peace keeping missions.  

On 19 August, Aljazeera News reported that the Head of Egypt’s armed forces, General Abdul Fattah al-Sisi, stated that the government will not hold the military forces back from engaging the, “attackers that want to destroy Egypt.” Egyptian policemen are being killed in daily ambushes around the Sinai peninsula including a rocket propelled grenade attack at the Rafah border crossing. The Egyptian MENA news agency has reported that 612 detainees transported to Abu Zaabal prison suffered attacks, and that 35 people had been killed due to suffocation and being shot while trying to escape. The Anti-Coup Alliance puts the total death figure since 3 July at about 2,600 dead, with 600 killed on Saturday 14 August. However, “counting the casualties” has been problematic. Various journalists, such as, Bel Trew, in Egypt, have reported that the government is pressuring healthcare professionals to document that those who they examined, died as a result of suicide and not a trauma inflicted upon them by bullets or other brutal means. The reason for this medical determination is that it would make it more difficult to hold the government to account for the human rights violations at both the domestic and international levels. Many believe this is evidence of illegitimate state sponsored killing, terror and coercion.  

The international community have been active through both multilateral and bilateral initiatives. The United Nations Secretary-General, Ban Ki-moon, has unreservedly denounced the human rights violations, and on 15 August, Mrs Navi Pillay, the United Nations High Commissioner for Human Rights, stated, “I deplore the loss of life and call on all in Egypt to seek a way out of the violence. I urge the Egyptian authorities and security forces to act with the utmost restraint. What is needed is a genuinely inclusive reconciliation. I therefore appeal to all sides to engage in urgent dialogue and avoid further violence and hate speech, with the aim of restoring constitutional order through free and democratic elections.”          

The Peace and Security Council of the African Union, at its 390th meeting on 16 August, called upon, “all Egyptian stakeholders, including the interim authorities and the Muslim Brotherhood, to exercise utmost restraint in order to avoid further losses of human lives and destruction of property.” The Council further urged the Egyptian stakeholders to, “embrace the spirit of mutual accommodation, dialogue and national reconciliation and to refrain from any act of violence and retribution.” To facilitate these processes from the regional level, the Council established a, “High Level Panel for Egypt,” and called on all African Union bilateral and multilateral partners to support the work. The Panel will engage with the League of Arab States to form a strategic partnership to further their, “shared interest for a peaceful, stable and democratic Egypt.”

To establish peace in Egypt the interim authorities, under Adly Mansour and General Abdul Fattah al-Sisi, and Mohamed Morsi’s the Muslim Brotherhood, will have to shed their history of internal conflict, cease the violence and the continuation of the crisis, and come to a shared political understanding on democratic constitutionalism. This will be a difficult and nuanced political journey as the statements from both sides, with many examples of hate speech, reveal that neither is currently willing to accept the political legitimacy of either party. Each holds that the other is an illegitimate terrorist organisation.

Even so, once the hostilities have quelled, the question will be what mechanisms will be needed for Egypt to maintain peace. Will a Truth and Reconciliation Commission be the best option to provide a transparent and open process for the healing of the psychological and physical trauma? Or will an adversarial process be more appropriate and the use of the courts to punish those responsible for the human rights violations? A Truth and Reconciliation Commission was extremely effective in South Africa, under the vision of Nelson Mandela and the leadership Desmond Tutu from 1996-1998. However, it may be argued by some that in Egypt there is not a political will for this form of restorative justice.

The issue here is that in Egypt, sovereignty has been taken away from the ruling elite, and has been claimed by the people, but the people have not yet been able to solidify their will within a coherent (and legitimate) political regime. The current violence is the result of the sovereignty of the elite clashing with the sovereignty of the people. What this demonstrates is that the Arab Spring is still in motion, but the political mess and violence may continue as long as the Egyptians prioritize a “retributive” ideology over a “restorative” view of justice.     

The crisis has somewhat shifted the focus away from the fact that the Egyptian courts are currently considering the appeal against sentence by Hosni Mubarak, the Fourth President of Egypt (1981-2011). Mubarak is currently receiving life sustaining medical treatment as he became ill during his trial. He was convicted of abuse of power and negligence for not preventing the killing of peaceful protestors during the 2011 revolution. The appeals timeframe is running out for the Egyptian courts to keep Mubarak imprisoned, and his sentence must be affirmed or quashed. Some journalists in Egypt are of the opinion that the courts will overturn his sentence in an effort to quell the uprising, and others say that a lot of evidence against him has been lost so the blame for the killings is difficult to substantiate.  

Al-Jazeera report that 100s of “terrorists” have been arrested and await trial. The Egyptian courts will become inundated with new defendants charged with crimes against the state. It is crucially important that the Egyptian judiciary observe fair trials and human rights standards for any persons charged. For example, the African Charter on Human and Peoples’ Rights (1981) Article 3 establishes that every individual is equal before the law, and Article 7 affirms that everyone shall have the right to a fair trial. These rights are also protected within the Arab Charter on Human Rights (2004), Articles 12 and 13, and the League of Arab States’ protection of human rights includes:

Everyone has the right to a fair trial that affords adequate guarantees before a competent, independent and impartial court that has been constituted by law to hear any criminal charge against him or to decide on his rights or his obligations. (ACHR, Article 13).

The future of Egypt lies in it being able to cease the violence that is currently destroying the country, and for all parties to engage in dialogue. There needs to be a solidification of constitutional democracy in which all parties can participate. This will be a difficult challenge as it will mean the different sides putting aside the history of the conflict between the military and the Muslim Brotherhood from at least the Gamal Abdel Nasser revolution in 1952. South Africa overcame its traumatic history of the apartheid era, and while the history of this conflict is particular to Egypt, it must find a way of making a political transition and a political future.  

No group should be excluded if they consent to peaceful dialogue and a democratic political process. All persons must be subject to the rule of law, and all those who break the law need to be brought to account. One of the difficulties resulting from the internal conflict will be the identification of “responsibility” for the crimes. Those who order the offences to occur (from the top political levels) and those who commit the killings and inflict inhumane treatment on individuals and groups, need to be held to be responsible for their actions. Whether this will be done through an adversarial process or through a Truth and Reconciliation Commission, should be for the Egyptians to decide. Help from the international community should only facilitate an Egyptian healing of Egyptian wounds.   


Sources:
Aljazeera News, Deadly ambush hits Egyptian police and Sinai, http://www.aljazeera.com/news/middleeast/2013/08/20138197944776261.html

Aljazeera News, Egypt: The future of the Muslim Brotherhood, http://aljazeera.com/programmes/insidestory/2013/07/2013758451768913.html

UN News Centre, UN rights chief urges talks to save Egypt from further disastrous violence, http://un.org/apps/news/story.asp?NewsID=45628&Cr+egypt&Cr1=#.UhlCodl6NLc

African Union, The 390th meeting of the PSC on the situation in Egypt, 16 August 2013, http://www.au.int/en/content/390th-meeting-psc-situation-egypt

Bel Trew, Egyptian Freelance Journalist, http://www.beltrew.com/

World Humanitarian Day

World Humanitarian Day 2013Today is the UN World Humanitarian Day, and it is dedicated to those who face danger and adversity in helping protect human rights. The 19 August 2013 marks 10 years since the tragic 2003 bombing of the United Nations headquarters in Baghdad, in which 22 people died. On this day the world community pauses and reflects upon this, and other, gross human rights violations. The UN General Assembly adopted Resolution for the Strengthening of the Coordination of Emergency Humanitarian Assistance of the United Nations, 63/139 5 March 2009, and paragraph 26 states:

"Decides to designate 19 August as World Humanitarian Day in order to contribute to increasing public awareness about humanitarian assistance activities worldwide and the importance of international cooperation in this regard, as well as to honour all humanitarian and United Nations and associated personnel who have worked in the promotion of the humanitarian cause and those who have lost their lives in the cause of duty, and invites all Member States and the entities of the United Nations system, within existing resources, as well as other international organizations and non-governmental organizations, to observe it annually in an appropriate manner."      

Secretary-General Ban Ki-moon stated that on the World Humanitarian Day:

"We commemorate [the aid workers'] sacrifice and reaffirm our commitment to the lifesaving work that humanitarians carry out around the world every day, often in difficult and dangerous circumstances, where others cannot or do not want to go. This year our World Humanitarian Day campaign is calling people to answer a question: 'What do you think the world needs more of?"

Visit the United Nations World Humanitarian Day campaign website http://www.worldhumanitarianday.org/ and participate in the day. Please leave your comments below on what you think:  "The world needs more..."

Thursday, 15 August 2013

Death Penalty Videos by the International Academic Network for the Abolition of Capital Punishment

For an informative video on the death penalty see, "Still Killing" (in English and Spanish) created by the NGO International Academic Network for the Abolition of Capital Punishment. For information on the Network, see www.academicsforabolition.net/
Still Killing (Academics for the abolition of Capital Punishment, 2011) from EU & International Criminal Law on Vimeo.
My full length interview by Academics for Abolition for the "Still Killing" Video
Jon Yorke from EU & International Criminal Law on Vimeo.

Friday, 9 August 2013

Recent English Court Decisions on State Responsibility and the Application of the Death Penalty: Sovereignty verses Human Rights

Two examples of litigation in 2013 in the British High Court and Court of Appeal are considered, The Queen on the Application of Lindsay Sandiford v. The Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 581 (Delivered 22 May 2013), and The Queen on the Application of Omar and Others v. The Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 118. (Delivered, 27 February, 2013) (Decision of the High Court, [2012] EWHC 1737 (Admin).

Both cases demonstrate that even when the British government has adopted domestic and regional legislation for the abolition of the death penalty within its territory, the British judiciary can apply a confined approach to domestic statute and governmental policy with the result being that the government legitimately acquiesces in the punishment in foreign domestic jurisdictions. The result is an inadvertent contribution to the preservation of the capital judicial process in third countries, in cases where British nationals face a death sentence, and where British intelligence services are involved in apprehending persons for capital charges.

The British government is a staunch advocate of abolition at both the bilateral level with many retentionist countries, and at the multilateral level in the European Union and the United Nations. It would be a reasonable assumption that an abolitionist country which vigorously promotes abolition globally would identify juridical procedures which align with governmental human rights policies, and attempt to contribute to the neutralising of capital judicial systems elsewhere.

However, these two recent examples of litigation in the British High Court and Court of Appeal demonstrate that in adopting certain governmental policies and a “statutory regime” within public law, the judiciary have found exceptions to a, “principled position against the death penalty.” Manifestations of state sovereignty have been privileged over principles of human rights, with a curtailment of the abolitionist frameworks provided by the EU and ECHR. Such a statutory regime is reminiscent of European sovereignty pre-abolitionist era, and requires rectification at the legislative level.  

See the below two posts for the British cases. The first part of each post is a summary of the decision which is followed by a commentary on the judicial reasoning.