Thursday, July 31, 2008

Australian Key Ruling on Indigenous Fishing Rights

On Wednesday, 30 July, the Australian High Court in Canberra in a key ruling (Northern Territory of Australia v Arnhem Land Aboriginal Land Trust [2008] HCA 29, judgement here) upheld a decision by the Federal Court earlier this year granting Aboriginal people rights of ownership over a large part of the Northern Territory’s (NT) coastline.

The court dismissed the appeal by the NT Government in a 5-2 vote, confirming the native title rights to the inter-tidal zone bordering Aboriginal land in the NT. The extension of their land rights gives the Aboriginal people exclusive access to these tidal waters which implies that they will now have the power to decide who enter these waters on up to eighty percent of the Northern Territory’s coast.

The ruling annuls those parts of NT's law that until now governed access to inter-tidal waters and licenses for commercial fishermen. Aboriginal leaders indicated that they had no desire to stop commercial and recreational fishing in the region and pledged to work co-operatively with fishing interests and the NT Government to ensure fishing could still take place in Aboriginal waters.

In the judgement, Justice Kirby stated that Prime Minister Rudd's national apology in February to the indigenous peoples was relevant to his decision to rule in favour of Aboriginal control of the inter-tidal zone:

“70. [G]iven the attention to, and nationwide reflection upon, its making, terms and reconciliatory purposes, it is appropriate in my view for this court to take judicial notice of that National Apology. The Court does not operate in an ivory tower. The National Apology acknowledges once again, as the preamble to the Native Title Act 1993 already did, the wrongs done in earlier times to the indigenous peoples of Australia, including by the law of this country. Those wrongs included the non-consensual denial and deprivation of basic legal rights which Australian law would otherwise protect and uphold for other persons in the Commonwealth. In the case of traditional Aboriginals, these right included rights to the peaceful enjoyment of their traditional lands and to navigate and to fish as their ancestors had done for aeons before British sovereignty and settlement.

71. Although the National Apology was afforded on behalf of the Government of the Commonwealth, with support of the Opposition and other political parties, and reflects an unusual and virtually unprecedented parliamentary initiative, it does not, as such, have normative legal operation. It is not contained in an Act of the Federal Parliament nor in a law made by any other Australian legislature with legislative powers. Yet it is not legally irrelevant to the task presently in hand. It constitutes part of the factual matrix or background against which the legislation in issue in this appeal should now be considered and interpreted. It is an element of the social context in which such laws are to be understood and applied, where that is relevant. Honeyed words, empty of any practical consequences, reflect neither the language, the purpose nor the spirit of the National Apology.”

Friday, July 25, 2008

New UN High Commissioner for Human Rights


On Thursday, 24 June, the United Nations (UN) Secretary-General Ban Ki-moon announced the appointment of South African Judge Navanethem Pillay as the new UN high commissioner for human rights. The appointment is subject to approval by the General Assembly which will meet on Monday. Ms. Pillay, currently a judge on the Appeals Chamber of the International Criminal Court, became the first woman appointed to the High Court of South Africa.

In 1995 she joined the International Criminal Tribunal for Rwanda (ICTR), where she served for eight years, including four years as president. During that period she played a leading role in landmark decisions defining rape as an institutionalized weapon of war and establishing mass rape as a crime of genocide. She has published on international criminal and humanitarian law, and more particularly on crimes of sexual violence in conflicts.

Thursday, July 24, 2008

Judgement of ICTY Trial Chamber in Contempt of Court Case

On Thursday, 24 June, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) convicted Kosovar journalist Baton Haxhiu for contempt of the Tribunal (Case No. IT-04-84-R77.5, judgement [PDF]).

In April 2008 Haxhiu was indicted on contempt of court charges, pursuant to Rule 77(A)(ii) of the Rules of Procedure and Evidence of the Tribunal, for allegedly revealing the identity of a protected witness who testified during the trial of former Kosovar military leader Ramush Haradinaj et al. According to the indictment, Haxhiu obtained information about the witness which he subsequently published in a newspaper article in contravention of a Trial Chamber order.

On 3 April the Trial Chamber acquitted Haradinaj, a senior commander of the Kosovo Liberation Army (KLA), of all charges of war crimes and crimes against humanity committed in Kosovo between March and September 1998, but noted “significant difficulties in securing testimony of a large number of witnesses.” Also the Prosecutor’s claims of witness intimidation cast doubt on the proceedings and in May the Prosecution filed an appeal in which it called on the Appeals Chamber to order a re-trial of Haradinaj due to what it described as the “prevailing circumstances of witness intimidation and fear.”

Convinced that Haxhiu disclosed protected information and that he knew that his disclosure was done in breach of a court order, the Trial Chamber found him guilty of the crime of contempt. Regarding the sentence, the Trial Chamber considered, inter alia, that the conduct of Haxhiu "[C]ould have jeopardized the security of the witness and his family. Moreover it was of a kind to undermine confidence in the effectiveness of the Tribunal’s protective measures orders, and to have the effect of dissuading witnesses from cooperating with the Tribunal." Haxhiu was fined €7.000.

Tuesday, July 22, 2008

Karadžić located and arrested

During the night of the 21st of July Radovan Karadžić was located and arrested by Serbian security officers.

Radovan Karadžić is charged with genocide for the murder of close to 8,000 Bosnian Muslim men and boys in Srebrenica in 1995. The indictment alleges that Radovan Karadžić also committed genocide, persecutions and other crimes when forces under his command killed non-Serbs during and after attacks on towns throughout Bosnia and Herzegovina.

The arrest of Radovan Karadžić was welcomed as a "milestone" by war crimes prosecutors of the International Criminal Tribunal for the former Yugoslavia [ICTY] in The Hague.

Monday, July 21, 2008

ICC Guidelines on Whistleblowing

Earlier this month the Anti-Corruption Commission of the International Chamber of Commerce (ICC) issued the ICC Guidelines on Whistleblowing [PDF document]. Purpose of these guidelines is to help enterprises in establishing and implementing internal whistleblowing programs. According to the Anti-Corruption Commission these programs have shown to be a very effective instrument in the fight against fraud and corruption. Nevertheless internal fraud reporting schemes are still not very common among enterprises worldwide. Due to cultural differences, legal requirements and psychological obstacles there is still reluctance in parts of the businessworld to resort to fraud reporting by the company's employees.

Thursday, July 17, 2008

Judgement of the ICTY Appeals Chamber in the 'Dubrovnik' Case

On Thursday, 17 July, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) rendered its judgement [PDF document] on the appeals of both the Prosecution and the Defense against the conviction and sentence of the former Yugoslav People’s Army (JNA) General Pavle Strugar (Case No. IT-01-42-A).

In January 2005 the Trial Chamber sentenced Strugar to eight years in prison for his role in the 1991 shelling of the historic town of Dubrovnik, which is a UNESCO World Heritage site since 1979.

The Trial Chamber found Strugar, on the basis of superior criminal responsibility (Article 7(3) of the ICTY Statute), guilty on two counts of violating laws and customs of war: for attacks on civilians and for destruction of protected buildings. As such, the Chamber sentenced Strugar for failing to take adequate measures to stop the bombing of the Old Town of Dubrovnik and for not punishing the officers who were responsible. The Trial Chamber found Strugar not guilty on four other counts: murder, cruel treatment, devastation not justified by military necessity and unlawful attack on civilian objects.

In its judgement the Appeals Chamber extended the scope of Strugar's criminal responsibility for failing to prevent the bombing of the Old Town. It also convicted Strugar for two of the other counts: unjustified devastation and unlawful attacks on civilian objects.

The Appeals Chamber only allowed two grounds of appeal submitted by the Prosecution and ruled that, as a result of applying the wrong test for the requisite mens rea under Article 7(3), the Trial Chamber erred in not finding that as of the early hours of 6 December 1991, Strugar already had reason to know that his subordinates were about to commit crimes. It also ruled that the Trial Chamber erred in law by failing to enter cumulative convictions for unjustified devastation and unlawful attacks on civilian objects in addition to the counts for which it found Strugar guilty.

The errors committed by the Trial Chamber, however, did not impact Strugar's sentence, since the damage caused during the additional period had already been taken into account by the Trial Chamber and the additional counts for which Strugar was convicted on appeal were based on the same criminal conduct and did not add to the gravity of his crimes. In view of Strugar’s deteriorating health the Chamber reduced his sentence to seven and a half years in prison.

Monday, July 14, 2008

ICC Prosecutor Presents Second Case on Crimes in Darfur

On Monday, 14 July, Prosecutor Luis Moreno-Ocampo of the International Criminal Court (ICC) filed an application for an arrest warrant and submitted to the Judges of the ICC Pre-Trial Chamber evidence of crimes of genocide, crimes against humanity and war crimes committed in Darfur by the Sudanese President, Omar Hassan al-Bashir (Read here the Application for warrant of arrest [PDF])

The Prosecution contends that its evidence shows that al-Bashir masterminded and implemented a plan to destroy in substantial part three ethnic and historically influential groups in Darfur, namely the Fur, Masalit and Zaghawa, on account of their ethnicity after they engaged in a rebellion in 2003 against the central government over its favoritism to Arabs over Africans. The alleged crimes stem from the brutal counterinsurgency campaign conducted by the Sudanese government.

The United Nations estimates that some 300.000 people have died in Darfur, and more than 2.5 million have been forced from their homes since 2003.

The Prosecutor maintains that because of his absolute control over the country al-Bashir bears ultimate criminal responsibility. Through the evidence submitted, the Prosecution seeks to demonstrate that al-Bashir mobilized the entire state apparatus, including the armed forces, the intelligence services, the diplomatic and public information bureaucracies, and the justice system, to subject the 2.45 million people living in Internally Displaced Persons (IDPs) camps, most of them members of the target groups, to conditions of life calculated to bring about their physical destruction.

The Pre-Trial Chamber must now determine whether to issue an arrest warrant. Until now the Judges have approved all previous submissions made by Prosecutor Moreno-Ocampo to the court. The warrant would make al-Bashir the first sitting head of state to be indicted by the ICC for genocide.

On the genocide charge against the Sudanese president, see also the recent blog by W. Schabas: Genocide Charges at the International Criminal Court?

United Nations Sanctions Against Zimbabwe Leadership Vetoed

A United States-led attempt to impose United Nations (UN) sanctions against Zimbabwe failed when on Friday, 11 July, China and Russia, both permanent members of the UN Security Council, voted against a draft resolution that would have instituted a travel ban and asset freeze against President Robert Mugabe and thirteen senior government/security officials in connection with the election violence in Zimbabwe. Had it passed, the UN resolution would also have imposed an arms embargo on the country (UN doc. S/2008/447). In recent years the Security Council has moved away from broad economic sanctions because of their harmful effect on the civilian population.

The resolution would have determined, under Chapter VII of the United Nations Charter, that the situation in Zimbabwe posed a threat to international peace and security in the region. The US insisted that there should be no doubt that what was happening in Zimbabwe affected peace and security in the region. Both China’s and Russia’s ambassadors to the UN, however, stated that there was no mandate to impose sanctions on Zimbabwe because the present situation had not exceeded the context of domestic affairs. They also said they wanted to give the rival political parties a chance to resolve the election matter on their own terms without undue interference from the Security Council.

The draft resolution was backed by nine nations, the minimum for it to pass, but foundered on the vetoes of the two permanent members.

Tuesday, July 8, 2008

European Pact on Immigration and Asylum

European Pact on Immigration and Asylum : At a meeting in Cannes on Monday, 7 July, EU ministers approved French proposals for a tougher common policy to stem the influx of illegal immigrants, despite some differences and concerns about accusations of xenophobia from outside the European Union.
France has made harmonizing the EU immigration policy a priority of its six-month EU presidency that began this month. Under its plans, EU Member-States would pledge to boost the fight against illegal migration and expel more illegal immigrants, while promoting legal migration and a common asylum policy by 2010. EU officials argue the European Union must get tougher on illegal immigration to convince voters to be more accepting of legal immigrants needed to make up for the EU aging population. France's Immigration Minister Hortefeux has said concerns about immigration were one reason Irish voters have rejected the Lisbon Treaty on EU reform.

Friday, July 4, 2008

Implementation of environmental law

A bibliography on the ‘Implementation of environmental law” is now available on our site. The bibliography has been compiled exclusively from materials available in the Peace Palace Library for the use of the researchers of the 2008 programme of the Centre for Studies and Research in International Law and International relations of the Hague Academy of International Law. For the time being its bibliographic content will be extended and updated regularly.

Tenth Anniversary Celebration of the Statute of Rome

HRH Maxima at the Peace Palace On 3 July 2008, the 10th anniversary of the Rome Statute [PDF]of the International Criminal Court was celebrated here, at Peace Palace in The Hague, in the presence of Her Royal Highness Princess Máxima of the Netherlands.
The event started with speeches of Mr. Maxime Verhagen, Minister of Foreign Affairs of The Netherlands, Ms. Rama Yade, French Secretary of State, Judge Philippe Kirsch, President of the ICC, and Mr. Luis Moreno-Ocampo, Prosecutor of the ICC.

Please, check also our extensive Bibiliography on International Criminal Law, compiled exclusively from materials available here in the Peace Palace Library.

Thursday, July 3, 2008

Hostages rescued in Colombia

Colombian armed forces rescued 15 hostages, including former presidential candidate Ingrid Betancourt, held by the Revolutionary Armed Forces of Colombia (FARC). Ms Betancourt was held prisoner for six years in the Colombian jungle. Still the FARC holds many persons captive under primitive circumstances.
FARC is described worldwide as a terrorist group, indulging in activities such as extortion, kidnapping and illegal drugs trade. Many of its actions are in violation of international humanitarian law.
The Peace Palace Library has a wide collection of literature on terrorism, hostages, and international humanitarian law.
Keywords : Terrorism, Hostages, Guerrillas, International humanitarian law, Kidnapping