Thursday, March 26, 2009

International Conference on Afghanistan, The Hague, 31 March 2009

On 31 March 2009, the Dutch government is hosting the ´International Conference on Afghanistan: a Comprehensive Strategy in a Regional Context´ at the World Forum in The Hague.



Building on the achievements of previous Conferences in Bonn, London and Paris, this Conference should reaffirm the solid and long-term commitment of the international community to supporting the Government of Afghanistan in shaping security and a better future for Afghanistan and its people. The Conference will take a comprehensive look at the current political, security and development issues facing us in Afghanistan, also taking the regional context into account. The near future will be particularly important for Afghanistan. Presidential elections are scheduled to take place on 20 August this year, and parliamentary elections will follow next year. The international community now needs to look ahead and discuss upcoming policy choices.

Both the Afghan President Hamid Karzai and UN Secretary-General Ban Ki-moon are expected to attend. Other attendees of this Conference will include foreign ministers from countries in the region, countries that are part of the International Security Assistance Force and other countries and organisations that are contributing to reconstruction in Afghanistan. The ministerial discussion will be co-chaired by the Special Representative of the UN Secretary-General for Afghanistan, Kai Eide, Afghan Minister of Foreign Affairs Rangin Dadfar Spanta and the Minister of Foreign Affairs of the Netherlands, Maxime Verhagen.

External links :

Afghanistan Conference 2009 website, Dutch Ministry of Foreign Affairs

The Hague Congress website


Peace Palace links :

Peace Palace Library systematic codes : 41 (peacekeeping), 179 Afghanistan (international peace and security), 497x Afghanistan (wars)
Peace Palace Library keywords :
Afghanistan, peacekeeping

Documents :

Friday, March 20, 2009

Travaux Préparatoires

Last week the impressive two volume set "The Genocide Convention : The Travaux Préparatoires", by Hirad Abtahi and Philippa Webb was launched in the Hague.

The 2217 pages of this vol. 2 of a new series "The Travaux Préparatoires of Multilateral Treaties", published by Brill/Nijhoff, offer the reader, students of international criminal law, lawyers, judges, historians etc. a careful collected body of 337 UN documents dating from 1946 to 1948. The original documents, hard to find and fragile, are re-keyed and presented in a chronological order. The 86 page splendid General Index with analytical catagories of keywords functions like a research guide. You can follow the contributions of the representatives of the different countries on certain topics. A Complete List of Documents and an Index of names are also added. You can find a practical explanation of the UN symbols in the Reader's Guide.

Going through it you can trace according to the spoken words of Dame Rosalyn Higgins, the former president of the International Court of Justice, the historical context, the persons who played an important role, the issues at stake and an understanding of the way in which multilateral treaties are made in the UN.

Judge Philippe Kirsch, president of the International Criminal Court, added some words about the practical use of this work with the regrettable growing number of cases dealing with this "odious scourge" before the ICJ, ICC, and other national and international courts and tribunals.

The travaux will play a valuable role as a supplementary means of interpretation, mentioned in art. 32 of the Vienna Convention on the Law of Treaties.


The work of Abtahi and Webb will surely help readers to define the contours of this complex crime.


A natural complement would be the new edition of William A. Schabas book entitled Genocide in International Law (Cambridge, 2009), in which you find a history and commentary of the Convention with the analysis of the growing body of case law on genocide.

Wednesday, March 18, 2009

The Highs and Lows of the Freedom of Expression and Religion

Combating discrimination and all forms of intolerance, as embodied in Article 1 [1] Dutch Constitution and criminally enforced through Article 137c - 137g of the Criminal Code, is a policy spearhead for the Dutch government.

Apart from the economic downturn, the topic of freedom of expression and religion is very much at the centre of public attention in the Netherlands. Geert Wilders, the leader of the Dutch PVV (= Party for Freedom) has spoken out on the issues of immigration, Islam and Islamic extremism and freedom of speech in an effort to defend Dutch culture and national identity. Moreover the arrest of Gregorius Nekschot, pseudonym of a controversial Dutch cartoonist who mocks political ideas about Dutch multicultural society and the behaviour of people with rigid religious or ideological views, caused much debate in both the press and parliament.


Freedom of expression also formed part of a recently issued report (CommDH(2009)2, Chapter X pp. 36-37) of the Council of Europe Commissioner for Human Rights, Mr. Thomas Hammarberg, following an official visit to the Netherlands in September 2008 to discuss the human rights situation in the Netherlands with the authorities, members of parliament and the judiciary, and representatives of civil society, as part of a continuous process of country missions by the Commissioner to all Council of Europe Member States to assess their effective respect for human rights [ Article 3(e) of Resolution (99) 50].

As an MP Geert Wilders enjoys parliamentary immunity on the basis of Article 71 [2] of the Dutch Constitution, which means he has special protection in order to freely exercise his functions as an MP. Nevertheless, because of his views and comments on Islam attempts are being made to prosecute Wilders for "inciting hatred and discrimination" and "insulting Muslim worshippers" through his public statements. In June 2008 the public prosecutor's office declined to charge, stating that Wilders' comments contributed to the debate on Islam in Dutch society and he had not committed any criminal offence. In the words of the office: "that comments are hurtful and offensive for a large number of Muslims does not mean that they are punishable. Freedom of expression fulfils an essential role in public debate in a democratic society. This means that offensive comments can be made in a political debate." Wilders welcomed the Dutch prosecutors' ruling and said he had been careful to limit his criticism to the religion of Islam and not Muslims.

But on 21 January 2009 the Dutch Amsterdam Court of Appeal overruled the prosecutors on the basis of Article 12 of the Criminal Procedure Code and decreed, based on Dutch domestic law viewed against Article 10 (1) of the European Convention on Human Rights and case law of the European Court of Human Rights, that charges may be brought against the politician for inciting hatred and discrimination (Penal Code, Article 137d [3]) and the insult of a group (Penal Code, Article 137c [4]).

Only a fortnight later on 10 March 2009, the High Court (Hoge Raad) ruled in a case concerning an activist who hung a poster in his window with the slogan ‘Stop the tumour called Islam’, that the display of the poster was not punishable under Article 137c of the Criminal Code. The High Court explained its ruling by saying that it is not a crime to express insults towards religion. Not even if that happens in such a way that the devotees feel their religious feelings are hurt. The High Court ruling will have implications for the prosecution of Geert Wilders, as the same criteria of group insult will apply.

On the subject of freedom of speech and religion interesting times await us. In the mean time Wilders and the PVV, with a rise in the mid-term election polls from nine to twenty-nine seats in Parliament, are doing well.


Footnotes:


[1] Dutch Constitution : Article 1
All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race or sex or on other grounds whatsoever shall not be permitted.


[2] Dutch Constitution : Article 71
Members of the States General, Ministers, State Secretaries and other persons taking part in deliberations may not be prosecuted or otherwise held liable in law for anything they say during the sittings of the States General or of its committees or for anything they submit to them in writing.


[3] Dutch Penal Code, Book 2 Title 5 : Article 137d [Unofficial translation]
1. He who publicly, verbally or in writing or in an image, incites hatred against or discrimination of people or violent behavior against person or property of people because of their race, their religion or belief, their gender or hetero- or homosexual nature or their physical, mental, or intellectual disabilities, will be punished with a prison sentence of at the most one year or a fine of third category.
2. If the offense is committed by a person who makes it his profession or habit, or by two or more people in association, a prison sentence of at the most two years or a fine of fourth category will be imposed.


[4] Dutch Penal Code, Book 2 Title 5 : Article 137c [Unofficial translation]
1. He who publicly, verbally or in writing or image, deliberately expresses himself in an way insulting of a group of people because of their race, their religion or belief, or their hetero- or homosexual nature or their physical, mental, or intellectual disabilities, will be punished with a prison sentence of at the most one year or a fine of third category.
2. If the offence is committed by a person who makes it his profession or habit, or by two or more people in association, a prison sentence of at the most two years or a fine of fourth category will be imposed.



References:

- 2002 Dutch Constitution [in English]

- Decision Gerechtshof Amsterdam (Amsterdam Court of Appeal) 21-01-09 [in Dutch]

- Beschikking Hoge Raad (High Court) 10-03-09 'Groepsbelediging en Islam' [in Dutch]

- Dossier godsdienstvrijheid en de vrijheid van meningsuiting [references (mostly in Dutch) about Religion and Freedom of Speech]

- Prakken, Ties: Wilders: verbieden of toestaan? In: NJB 06/09 [In Dutch]

- Rules on Parliamentary Immunity in the European Parliament and the Member States of the European Union : Final Draft. Ed. by Simon McGee. European Centre for Parliamentary Research and Documentation (ECPRD), 2001.

- Summary 'Hoge Raad' decision of 10-03-09 by the Registrar Mr. E. Hartogs [in Dutch]

Wednesday, March 11, 2009

Biden: Afghanistan Situation 'Deteriorating'

During a visit to NATO at Brussels on Tuesday, March 10 US vice-president Joe Biden appealed to NATO allies to help the United States tackle worsening security in Afghanistan. According to Biden "The deteriorating situation in the region poses a security threat not just to the United States but to every single nation round this table (...) It was from that remote area of the world that al-Qaida plotted 9/11 and subsequent attacks". Biden also said "we need to look at Afghanistan and Pakistan together because success in one requires progress in the other."

Biden solicited ideas to reverse a losing military strategy in Afghanistan as part of President Barack Obama's policy to bring more European allies on board to fight the Taliban-led insurgency. NATO Secretary General Jaap de Hoop Scheffer called on NATO to boost efforts before August 20 Afghan elections.

On Sunday, March 8 CBS news reported Obama Seeks New Taliban Strategy President Barack Obama says he hopes U.S. troops can identify moderate elements of the Taliban and move them toward reconciliation.

The Obama administration has ordered 17,000 more U.S. troops to the country to bolster the 38,000 already there as a way to turn the tide. NATO has about 25,000 non-American troops in Afghanistan. Washington's allies have been reluctant to increase their troops levels.


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For more information about this subject in the Peace Palace Library catalogue see for example:

Combination Afghanistan and AlQaeda

Keyword Taliban

Combination Afghanistan and NATO

Combination USA and Afghanistan

Thursday, March 5, 2009

Special Tribunal for Lebanon

Last Sunday March 1 2009 the Special Tribunal for Lebanon (STL) launched its proceedings, 4 years after the political murder of Rafiq Hariri in Beirout.

The Tribunal is based upon an Agreement between the United Nations and the Lebanese Republic pursuant to Security Council Resolution 1664 (2006), which responded to the request of the Government of Lebanon to establish a tribunal of an international character to try all those who are found responsible for the terrorist crime which killed the former Lebanese Prime Minister Rafiq Hariri and others.

The Security Council decided ( SC Res 1757 (2007) ) to bring the provisions for the establishment of the STL on 10 June 2007 under Chapter VII of the Charter of the United Nations.

The Special Tribunal shall function in accordance with the Statute of the Special Tribunal for Lebanon. Its 30 articles treat the jurisdiction and applicable law (Lebanese Criminal Code) , concurrent jurisdiction, non bis in idem, the organization of the tribunal, the rights of defendants and victims and the conduct of proceedings.

Several issues are at stake, a.o. art. 52 of the Lebanese Constitution, which asks for approval by the Chamber of Deputies before ratification of international treaties, the linkage with other attacks, the legal nature of the STL and the selection of the judges.

The history of Lebanon is loaded with political assassinations and horrific crimes in a culture of impunity. Let us hope that this very special tribunal will show how the rule of law can prevail for all parties by not acting as a political instument and so be an example for Lebanon and the whole region.

See all articles in our catalogue concerning the STL here.

Agreement, Statute and all SC Resolutions can be found on the STL website.

Wednesday, March 4, 2009

ICC Issues Arrest Warrant for al-Bashir

On Wednesday, 4 March, the Pre-Trial Chamber of the International Criminal Court (ICC) announced its decision to issue a warrant for the arrest of the Sudanese President, Omar Hassan al-Bashir, for crimes against humanity and war crimes (Read here Decision [PDF], Summary of the Decision [PDF], Arrest Warrant [PDF], and Press Release).

The ruling comes in response to the June 2008 application of ICC Prosecutor Luis Moreno-Ocampo for an arrest warrant against al-Bashir on charges of genocide, crimes against humanity, and war crimes committed in the Darfur region in violation of articles 6, 7, and 8 of the Rome Statute. In the application the prosecutor accused al-Bashir of masterminding and implementing 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. The alleged crimes stem from the brutal counterinsurgency campaign conducted by the Sudanese government since 2003. Prosecutor Moreno-Ocampo maintained that because of his absolute control over the country al-Bashir is bearing ultimate criminal responsibility.

With regard to its jurisdiction over the case, the Pre-Trial Chamber found that, "Al-Bashir's official capacity as sitting head of state does not exclude his criminal responsibility or get him immunity from prosecution before the ICC."

In the arrest warrant al-Bashir is charged with five counts of crimes against humanity: murder, art. 7(1)(a); extermination, art. 7(1)(b); forcible transfer, art. 7(1)(d); torture, art. 7(1)(f); and rape, art. 7(1)(f). Al-Bashir is also charged with two counts of war crimes: intentionally directing attacks against civilians, art. 8(2)(e)(i); and pillaging, art. 8(2)(e)(v).

The warrant does not mention genocide. The Pre-Trial Chamber (Judge Anita Ušacka dissenting) found that the evidence gathered by Prosecutor Moreno-Ocampo “failed to provide reasonable grounds to believe that the Government of Sudan acted with specific intent to destroy, in whole or in part, the Fur, Masalit and Zaghawa groups.” However, the Pre-Trial Chamber indicated that if the Prosecution would provide additional evidence at a later stage, it might issue an amended warrant upon the prosecutor's request to include the genocide charge.