Monday, 30 March 2009

First Khmer Rouge Trial finally underway

The international media is full of news reports today announcing that the first Khmer Rouge trial is finally underway. After years of controversy and corruption scandals prosecutors at the ECCC have today started their case against Kaing Guek Eav, known as Comrade Duch. As I have previously blogged here Duch ran the notorious Toul Sleng prison camp in Phnom Penh where many thousands of Cambodians were tortured and executed.

The opening of today's substantive proceedings has been welcomed by all, including the many critics of the ECCC. It is of course hard to be opposed to the prosecution of those alleged to have committed crime against humanity and war crimes. However, even as those welcomes come, the criticisms and general concern about the operation of the ECCC continue. Brittis Edman, Amnesty International's Cambodia researcher reflected this tension in the organisations press statement on the hearing: "The Cambodian people will finally see one of the most notorious Khmer Rouge leaders face trial. But many more need to face the court to really deliver justice to the millions of victims of these horrific crimes."

The decision of the ECCC to prosecute only five suspects has been widely criticised. Yet when Robert Petit, the international Co-Prosecutor wanted to send six additional names to the investigating judges for further examination his Cambodian counterpart, Chea Leang, objected on the grounds that the stability of the country might be affected. No action has since been taken on those six names.

Whilst the Cambodian officials may claim that further prosecutions would not be beneficial to the country, a recent survey carried out by the Documentation Center of Cambodia found in fact that a small majority of Cambodians polled felt that the court should look at further suspects. Overall 56.8% were in favour, whilst amongst the younger people asked 67.5% supported further investigations.

In the meantime, the delays in progressing the other prosecutions clearly raises a concern that Comrade Duch may end up being the only trial the ECCC ever actually completes. The three defendants in the second case Noun Chea, Khieu Samphan and Ieng Thirithis are all suffering from health problems and may never make it to court.

So the excitement being generated in the international media is for a trial where the defendant has already confessed his guilt and expressed his remorse for his actions. According to his lawyer Francois Roux "Duch wishes to ask forgiveness from the victims but also from the Cambodian people. He will do so publicly. This is the very least he owes the victims."

Ultimately what can be expected from this first test of the ECCC? Clearly Duch's evidence will provide a valuable public record of the operation of Toul Sleng, and many are hoping that his evidence will provide some answers to the questions concerning what the Khmer Rouge did to their compatriots and why. His evidence may also provide some powerful testimony in relation to the other defendants due to be prosecuted by the ECCC. Cambodians certainly are aware of the moment of history and powerful potential the trial offers, as many queued to attend the first day of hearings.
Links to some of the coverage:
AP, BBC, Guardian, Irish Times, Reuters

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Friday, 27 March 2009

CCJHR Third Annual Postgraduate Conference: The Promise of Law: Political Claims and the Boundaries of Justice

The Centre for Criminal Justice and Human Rights at UCC will host its third annual postgraduate conference on April 30th, 2009.

The theme for this year's event is “The Promise of Law: Political Claims and the Boundaries of Justice.” The conference will focus on the intersection of law and politics and the tensions between liberty and political expediency in view of contemporary challenges to civil and human rights principles.

This year’s conference features an exciting mix of papers on a diverse range of topics, approached from empirical, doctrinal and theoretical perspectives. With 50 presenters drawn from a variety of institutions across Ireland and the UK, the 2009 conference is the largest postgraduate conference of its kind.

The keynote address will be delivered by Barbara Hudson, Professor in Law at Lancashire Law School, University of Central Lancashire. Professor Hudson has published widely on gender and criminal justice, penology and social justice. Her latest book is Justice in the Risk Society: Challenging and Re-affirming Justice in Late Modernity (Sage: 2003). The closing address will be delivered by Maleiha Malik, Reader in Law at King’s College London, who has written extensively on discrimination law, minority protection and feminist theory. She is co-author of Discrimination Law: Theory and Practice (Sweet and Maxwell: 2008).

To reserve your place at the conference, please complete a registration form and send it to ucclawconf@gmail.com . There is a €30 attendance fee which can be paid on the day.

For further details of the conference program and to access the registration form click on the link below which will take you to the relevant page of the UCC Law Faculty website:

http://www.ucc.ie/en/ccjhr/fullstory,72483,en.html

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Nepalese professor appointed as Human Rights envoy for Cambodia

The UN Human Rights Council has announced the appointment of Professor Surya Prasad Subedi as the next UN Special Rapporteur for human rights in Cambodia.
Dr Subedi is Professor of International and Human Rights Law at the University of Leeds in England. He is a Barrister in England and an Advocate in Nepal. Professor Subedi said of his appointment:
“I am delighted and honoured by the trust and confidence placed in me by such a high level UN body in recognition of my work in the field of international and human rights law.”
The Cambodian ambassador to the UN, Sun Suon, welcomed the appointment. He expressed both the willingness of his government to cooperate with Professor Subedi and also hoped that he would discharge his responsibilities as an independent human rights law expert in “a spirit of cooperation and good partnership”.

Whilst the Cambodian government may publicly state that they will cooperate with the Rapporteur and the permanent Office of the high Commissioner for Human Rights Commissioner (OHCHR) Phnom Penh the experience of previous envoys to Cambodia has typically been challenging. Indeed, the last envoy, Kenyan lawyer Yash Ghai, was publicly attacked by the Cambodian officials, including the Prime Minister. He resigned from his office in September 2008 leaving with strong criticisms of the commitment of the Cambodian authorities to human rights.

Human rights activists and observers within Cambodia will wait to see how Professor Subedi is treated once he takes up his position. There are ongoing concerns about the overall cooperation with the OHCHR which plays an important role in monitoring day-to-day human rights violations within the country; and a general view that the messages of cooperation and dialogue that come from the government are in fact not real.

Critics point to the fact that when the United States State Department’s 2008 annual rights report found that Cambodia’s human rights record “remained poor” the Cambodian Ministry of Foreign Affairs attacked the report as ‘hypocritical and politically motivated’. The report raised concerns about a number of key areas including the abuse of detainees, land disputes and forced evictions, endemic corruption, the remaining problem of a weak judiciary and the denial of the right to a fair trial.

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"Kids for cash": the dangers of private prisons laid bare

Last month two Pennsylvania judges pleaded guilty to federal corruption charges which relate to the jailing of around 2000 children between June 2000 and January 2007. The children were sent to two private detention facilities in exchange for bribes worth more than $2.6 million; the private prison companies belonged to the Mid Atlantic Youth Services Corp. The case has become known as the “kids for cash” scandal and has raised questions about the close ties between the courts and private contractors, as well as the harsh treatment adolescents have received in the criminal justice system in the Pennsylvania and beyond.

President Judge Mark Ciavarella and former President Judge Michael Conahan agreed to 87-month prison sentences for themselves, but as Jurist has reported, the pleas will not be formally accepted until sentencing, which could take up to 90 days. Ciavarella claims he took the money innocently, assuming it was a legitimate "finder's fee" from the private company for help in building the detention centre. He denies sending children to custody in return for kickbacks. This matter will also have to be determined by the court.

The story did not receive much attention this side of the atlantic, although the Guardian covered it and George Monbiot wrote a good piece where he provided the following examples of the types of sentencing decisions the judges made in relation to children coming before them:

“Michael Conahan sent children to jail for offences so trivial that some of them weren't even crimes. A 15 year-old called Hillary Transue got three months for creating a spoof web page ridiculing her school's assistant principal. Mr Ciavarella sent Shane Bly, then 13, to boot camp for trespassing in a vacant building. He gave a 14 year-old, Jamie Quinn, 11 months in prison for slapping a friend during an argument, after the friend slapped her.”

Monbiot’s focus was not so much the issue of judicial corruption but more the fact that “This is what happens when public services are run for profit.” He reports that the judges also took action which resulted in the closing of a competing prison which operated in the public sector. The money was diverted to a private company called PA Child Care (PACC) which it helped to build a new facility in the area.

And it is this point that links to more commonplace acts of corruption and bizarre decision making regarding the operation of the prison sector in the USA. Where prisons are run for profit, there is a corporate need to ensure that the market for imprisonment does not fail. Therefore people must be imprisoned. The ultimate connection between both the politicians responsible for criminal justice policy and the courts can then become tainted at best, and corrupted at worst, as in this case.

The legal fall out from the Pennsylania corruption cases is now being felt. On 26th March the Pennsylvania Supreme Court ordered that convictions of hundreds of children be overturned and the relevant records expunged without hearing. This decision followed the recommendation of Special Master Grim which was made in order to investigate the “alleged travesty of juvenile justice …[and] to identify the affected juveniles and rectify the situation as fairly and swiftly as possible”.

Grim recommended that this should be done in all non-serious cases where the juveniles appearing before Ciavarella were not represented by lawyers, something that happened in half of the cases before him. Grim wrote:

“This prompt action in these non-serious cases will be at least one step towards righting the wrongs which were visited upon these juveniles and will help restore confidence in the justice system. Furthermore, it is not in the interest of the community to relitigate these non-serious cases, nor do I believe that the victims would be well-served by new proceedings.”

In more serious cases the juveniles can object to a decision and the Supreme Court will examine those cases.

University of Pitsburgh School of Law Professor David Harris criticised the plea deal made by the judges and is quoted on Jurist "I don’t think seven years is nearly enough for the harm they did to the system of justice, to our collective belief in the rule of law, to these children, and to their families."

His point is well made. The judges sent children to prison establishments and boot camps in situations that were inappropriate or for offences that were not even criminal or warranting detention. The impact of that detention is in many ways immeasurable in terms of the psychological, physical and emotional harm that those children will have experienced and are still experiencing. The criminal justice system is often regarded as being overly punitive, but not when it comes to corrupt judges who were willing to trade children’s lives for financial benefit.

And what of the corporation that was willing to pay for those children? The culture of private prisons as business seems to be breeding corporations that see nothing wrong in finding alternative means of filling their facilities. In this case there has been no action in relation to the corporation. PACC's then owner, Bob Powell, has not been charged. The company is still operating and its spokesman denies that its current owner knew of the kickbacks

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Wednesday, 25 March 2009

Northern Ireland Detention challenge successful

A challenge to the continued detention of six suspects in the killings of two soldiers on 7th March 2009 was today successful. The six men were immediately released but Colin Duffy, a prominent republican and former IRA prisoner was immediately rearrested under Section 41 of the Terrorism Act 2000. That re-detention is now the subject of a legal challenge.

The men had all been in custody since the 14th March and had had their detention extended under the UK anti-terror laws which allow for a 28-day detention period. The challenge was made specifically to a decision on the weekend to continue the detention for seven days whilst the PSNI waited for results of forensic tests.

Northern Ireland's lord chief justice, Sir Brian Kerr, quashed the decision to extend the detention period. Giving judgment for three judge panel, Sir Brian Kerr ruled that the County Court Judge, while making her deliberations, had not taken into account whether the suspects' original arrest had been lawful.

Kerr did not himself question the lawfulness of those arrests but said the judge who granted the extension should have examined the issue. He found that the lawfulness of the arrests should be examined, though this did not have to include a detailed analysis of the police’s grounds for the arrest. It was also accepted that it was not necessary to disclose full information “for reasons of public safety”.

As a result of these conclusions the court found that the detention was not lawful. A lawyer for one of the men welcomed the decision saying:
“The decision of the court has backed the position that the defence lawyers have taken from the very start of the arrests. We have always taken the view that not to examine the conduct of arresting officers when considering to detain people under the Terrorism Act has always been a breach of human rights.”

Defence lawyers had also raised a claim that the detention breached the men’s right to liberty under the European Convention on Human Rights. This issue was set aside to allow for a full hearing of the case to be heard in order to quickly address the legality of the detention under domestic law.

The ruling clearly has implication more generally regarding the interpretation and review of detention periods throughout the UK under anti-terrorism legislation requiring the courts to undertake a more thorough review of aspects related to the extended detention of suspects rather including the initial arrest process.

The detention of the men had created a different controversy earlier on the week when the head of the Northern Ireland Human Rights Commission Monica McWilliams criticised the conditions that the suspects were being held in in the serious crime suite of Antrim police station. Professor McWilliams said the holding centre had been designed for detaining suspects for shorter periods than the current 28 days allowed under current legislation.

Two unionist commissioners, Jonathan Bell and Lady Daphne Trimble, have now disassociated themselves from Prof McWilliams' comments, leading to an embarrassing public split in the body.

Ms McWilliams defended her comments and her role, saying she was not there to "reflect populist sentiment".
"I remind those concerned that the commission is charged to independently ensure human rights standards are adhered to and maintained, not to reflect populist sentiment. It is important on such sensitive issues to provide considered and informed responses. It is worth noting that the Policing Board itself reported the lowest level of satisfaction with Antrim station following visits to custody suites throughout Northern Ireland."

UPDATE 27 March

Colin Duffy today appeared in court charged with murdering the two soldiers. He was refused bail and remanded in custody until 21 April when he will appear at Antrim Magistrates Court. Duffy denies all charges. In addition to the two murder charges, Duffy is also charged with five counts of attempted murder and one of possession of a firearm and ammunition.

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Monday, 23 March 2009

Protecting Civilians: The Obligations of Peacekeepers

Micheál Martin, TD, Minister for Foreign Affairs, will today launch Protecting Civilians: The Obligations of Peacekeepers by Dr Siobhán Wills (UCC Law Faculty), published by Oxford University Press. The launch will take place today, Monday 23rd March, at 7 pm in THE STAFF COMMON ROOM, Quad, North Wing, UCC. It follows the CCJHR Annual Lecture by Professor Guy Goodwin-Gill which is being held in Aras na Mac Leinn at 6pm.
Protecting Civilians: The Obligations of Peacekeepers examines the scope and nature of peacekeepers’ obligations to protect civilians from serious abuses of their human rights, such as genocide, war crimes, crimes against humanity and ethnic cleansing.
Peacekeeping and peace support operations have expanded considerably in scope and purpose, particularly over the last decade and a half. Professor Goodwin-Gill comments in his Foreward to the book that:

"the complexity and, indeed, the contradictions attaching to these initiatives are often all too apparent, as Dr Wills shows in her timely study. Alive to the issues and concerns and solidly grounded in the experience of fifty or so years of missions throughout the globe, the analysis here reveals clearly the problems and the tension that can arise between national interests, humanitarian concerns, and international law, when mandates are ill thought-out, or lacking in political commitment….

Dr Wills identifies and analyses closely the still worrying problems of the applicable law: Whether and to what extent UN operations are bound by international humanitarian law; how, if at all, rights and duties are transmitted through the legal responsibilities of troop contributing nations; how relevant or important is the consent of the State where operations take place; and what impact does human rights law have on the conduct and accountability of States and troops….

Drawing on the rich history of the present and the recent past, this study pinpoints numerous inadequacies in the mandate, objectives, and implementation of various peace support operations – inadequacies, often compounded by lack of political will and purpose, which failed to stop or to do anything to prevent, not only the atrocities in Rwanda and Srebrenica, but also the daily violence, abuse and humiliation suffered by civilians at the hands of armed forces, militias, even peacekeepers themselves.

Too often, peacekeepers have not protected the vulnerable, but have been required to look the other way, or have done so for want of clear direction. Of course, as Dr Wills explains, the nature of conflict and the type and location of combatants are forever changing, and many parties, not just non-State actors, will manoeuvre in the spaces left by ambiguity. But if the principles of the UN Charter and the underlying spirit of the law are to mean anything, then the moral and political imperative to protect civilians ought indeed to have crossed the line to legal duty. The present and continuing challenge is implementation – finding effective ways to ensure that international peacekeepers and UN operations, in all their variety, do not become abusers of those entrusted to their protection; and that any immunity from process is legitimated by openness and accountability.

This important work lays down solid foundations for that programme of action. It is essential reading for students of these critical times, it gives legal content to the rhetoric of the responsibility to protection, and it will make a substantial and positive contribution to the doctrine of peace support operations in the years to come."

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Tuesday, 10 March 2009

CCJHR Annual Distinguished Lecture - Professor Guy Goodwin-Gill


The Centre for Criminal Justice and Human Rights in association with the International Law Association (Irish Branch) is pleased to announce that this years Annual Distinguished Lecture will be given by Professor Guy Goodwin-Gill, Senior Research Fellow of All Souls College and Professor of International Refugee Law in the University of Oxford.

The title of the lecture is:


‘The Extra-Territorial Reach of Human Rights Obligations’

The event will take place in the Multi-Functional Hall, Aras na Mac Leinn, on Monday, 23rd March at 6pm

A L L W E L C O M E

Guy S. Goodwin Gill, MA, DPhil (Oxon), is a Senior Research Fellow of All Souls College, Oxford and Professor of International Refugee Law in the University of Oxford. He was formerly Professor of Asylum Law at the University of Amsterdam, and served as a Legal Adviser in the Office of United Nations High Commissioner for Refugees (UNHCR) in various countries from 1976-1988. Since 1997, he has been President of the Refugee Legal Centre (a UK non-governmental organization providing legal advice and representation to refugees and asylum seekers). He is the Founding Editor of the International Journal of Refugee Law (Oxford University Press) and was Editor-in-Chief from 1989-2001. Professor Goodwin-Gill has written extensively on refugees, migration, elections, and child soldiers. Recent publications include The Refugee in International Law, Oxford: Oxford University Press, 3rd edn. (with Dr Jane McAdam), 2007; Free and Fair Elections, Geneva: Inter-Parliamentary Union, 2nd edn., 2006; Basic Documents on Human Rights, with Ian Brownlie, eds., Oxford: Oxford University Press, 5th edn., 2006; ‘The Politics of Refugee Protection’, 27 Refugee Survey Quarterly 8-23 (2008); ‘Forced Migration: Refugees, Rights and Security’, in Jane McAdam, ed., Forced Migration, Human Rights and Security, Oxford: Hart Publishing, 2008, 1-18; ‘Migrant Rights and “Managed Migration”,’ in Chetail, V., ed., Mondialisation, migration et droits de l’homme: le droit international en question / Globalization, Migration and Human Rights: International Law under Review, Bruxelles: Bruylant, 2007, Vol. II, 161-187; ‘State Responsibility and the “Good Faith” Obligation in International Law’, in Fitzmaurice, M. & Sarooshi, D., eds., Issues of State Responsibility before International Judicial Institutions, Oxford: Hart Publishing, 2004, 75-104; ‘Refugees and Responsibility in the Twenty-First Century: More Lessons from the South Pacific’, 12 Pacific Rim Law & Policy Journal 23-46 (2003). Professor Goodwin-Gill is a Barrister and practices from Blackstone Chambers, London; among other cases, he has represented the UNHCR on a number of occasions, including in the House of Lords in R (European Roma Rights Centre and others) v. Immigration Officer at Prague Airport and another (United Nations High Commissioner for Refugees intervening) [2005] 2 AC 1, [2004] UKHL 55; and in the Court of Appeal in R (on the application of Al Rawi and others) v. Secretary of State for Foreign and Commonwealth Affairs and another [2007] 2 WLR 1219, [2006] EWCA Civ. 1279.

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Wednesday, 4 March 2009

ICC issues arrest warrant against Sudan president

The International Criminal Court (ICC) today issued an arrest warrant and charged the Sudanese head of state Omar al-Bashir with war crimes and crimes against humanity arising out of the conflict in Darfur. The judges dismissed the prosecution's most contentious charge of genocide which arose out of allegations that Bashir had tried to wipe out three non-Arab ethnic groups.This is the first time the ICC has issued an arrest warrant against a sitting head of state.An aide to President Bashir was quoted in the Guardian as describing the decision as “neo-colonialism”; whilst protesters took to the streets of the Sudanese capital, Khartoum.

The ICC, in its press release, reported that

“The Chamber found that Omar al Bashir, as the de jure and de facto President of Sudan and Commander-in-Chief of the Sudanese Armed Forces, is suspected of having coordinated the design and implementation of the counter-insurgency campaign. In the alternative, it also found that there are reasonable grounds to believe that he was in control of all branches of the “apparatus” of the State of Sudan and used such control to secure the implementation of the counter-insurgency campaign.”

Human rights groups, including Amnesty International and Human Rights Watch, welcomed the decision but there has been disquiet amongst those who have been trying to broker peace talks in the area. Arab states and the African Union had argued for a postponement of the charges to allow Bashir a final chance to end the Darfur conflict while not under duress.

Sudan does not recognise the ICC, and Bashir said the court could "eat" the arrest warrant, which he described as a western plot to hinder Sudan's development. Despite this, the case will raise questions about his political future.

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1 in 31 US adults are under “correctional control”

According to a report published earlier this week by the Pew Center on the States 1 in 31 adults in the USA are on probation, in prison or on parole, compared with 1 in 77 in 1982. The overall figures add up to an astounding 7.3 million adults under correctional control.

Not surprisingly the report shows that men are five times more likely than women to be in the corrections system, and black adults are 4 times more likely than white adults to be in the system. The cost of the system is staggering: $68 billion a year. Yet research shows that the overall impact of the correctional system in the USA has had little impact on the reoffending rates. At present, according to the report, prisons consume nearly 90 % of state corrections spending, although two-thirds of offenders under supervision are in fact on parole or probation. The yearly cost for a prison inmate is around $29,000, whilst the average cost of managing parolees and probationers range from $1,250 to $2,750 a year.

Whether the current financial crisis in the USA will have an impact on the overall structure and philosophy of the correction system is of course yet to be seen. However, the report calls for policy leaders to see the situation as “a chance to retool their sentencing and corrections systems.” rather than simply undertaking short term cost cutting.

The report reflects some of the current theories on punishment and an understanding that perhaps the policies of being “tough on crime” have in fact not resulted in any significant improvement in crime control. At the same time the report reflects the view that building more prisons is “not a cost-effective path to greater public safety”.

The report sets out a six-step strategy to manage the growing population
  1. sorting offenders by risk to the public safety – separate offenders who are more likely to cause serious harm. The report calls for the use and further development of more scientific methods of risk assessment.
  2. basing intervention programs on science – in other words use evidence based practices and programs such as the use of case plans for higher risk offenders and the locating of supervision agencies in the neighbourhoods where offenders tend to live.
  3. harnessing technology – including electronic monitoring, GPS technology, monitoring drug and alcohol offenders with random testing. Overall they are recommending an intensification of traditional “face-to-face” supervision.
  4. imposing swift and certain sanctions where offenders break their supervision thus strengthening probation
  5. creating incentives for success – which encompasses incentives for offenders to change their behaviour, benefits for agencies which succeed and a system of measuring results.
  6. measuring progress.

The report confirms the fact that the US currently has the highest inmate population. According to a report last month from the US Department of Justice Bureau of Justice Statistics a total of 2.3 million adults were in prison in 2007.

Whilst the findings of the report are clearly welcome in the light of long term concerns about the level of imprisonment in the USA, the report does not question or challenge the levels of criminalisation of American citizens, but instead focuses on the value of alternatives to prison.

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