International & Transnational Criminal Law

UN Commission Reports Crimes Against Humanity in Syria

In August 2011 the United Nations established the Independent International Commission of Inquiry on Syria, which was directed to investigate allegations of human rights violations occurring as part of the uprising in Syria. The Commission's report, released today, states that crimes against humanity have been committed by Syrian military and security forces. As noted in a UN press release, the report "documents patterns of summary execution, arbitrary arrest, enforced disappearance, torture, including sexual violence, as well as violations of children’s rights."

Some highlights from the Globe & Mail's story:

 

There had been “isolated instances” of violence by demonstrators, but the “majority of civilians were killed in the context of peaceful demonstrations”, [the report] said.

Syrian forces have used snipers and tanks to suppress the uprising and drawn up “black lists” with names of people wanted by the authorities and sought at checkpoints, it said.

“Defectors from the military and security forces told the commission that they had received orders to shoot at unarmed protesters without warning,” the report said.

Some soldiers who disobeyed these orders were shot by the security forces or by army snipers, it said.

“A number of cases was documented of injured people who were taken to military hospitals, where they were beaten and tortured during interrogation,” it said. “Children were also tortured, some to death.”

Military and security forces used torture including electric shock and sexual torture, mainly on men and boys in custody, as a “tool to instill fear”, the UN panel said.

“Testimonies were received from several men who stated that they had been anally raped with batons and that they had witnessed the rape of boys,” it said.

“Detainees were also subjected to psychological torture, including sexual threats against them and their families, and by being forced to worship President Al Assad instead of their god”,” it said.

 

This situation is only one of the latest that illustrate one of the ongoing sore points in international criminal justice: in many cases, neither our criminal mechanisms nor our collective security regime have a deterrent or preventative effect on the perpetrators, particularly when they are state leaders strugging to maintain power. In this case, the Security Council has not acted effectively because of Russian and Chinese vetoes, and in particular the Council has not referred the situation to the International Criminal Court, as it is empowered to do under the Rome Statute. The failure of the Commission to call upon the Council to do just this has already attracted the criticism of some civil society groups.

In this light, it's amazing that anything at all was done about Libya. At least, the fact that there was a referral of the Libyan situation by the Security Council reflected only Libya's isolation from the rest of the international community. Unfortunately, some perpetrators will continue to be protected by their powerful friends, despite the cost in blood and horror.

Where to Try the Libyan Indictees?

As has been widely reported, Saif al-Islam Gadhafi (son of former Libyan dictator Moammar Gadhafi) and Abdullah al-Sanoussi, former Gadhafi intelligence chief, have been captured by the Libyan rebels. Both men are under indictment from the International Criminal Court, pursuant to its jurisdiction over the Libyan situation under a referral from the UN Security Council earlier this year. The ICC is calling for their surrender to the Court, while the newly-emergent Libyan transitional administration is claiming they have the will and resources to give the two a fair trial.

The problem for Gadhafi and al-Sanussi: staying alive long enough to even see a trial. The problem for the international community: try them locally, and help the Libyan people address the many outstanding accountability issues left over from the Gadhafi era? Or try them in The Hague, avoiding the inevitable problems associated with a trial in Libya, not the least of which is the very troubled heritage of the show trials before the Iraq High Tribunal?

A good discussion here: http://www.theglobeandmail.com/news/world/at-home-or-the-hague-the-options-for-trying-saif-al-islam-gadhafi/article2242847/

 

UK Extradition Review Released

On 30 September 2011, the UK Extradition Review Panel released its report, entitled "A Review of the United Kingdom's Extradition Arrangements," which can be found here. The Panel was appointed by the UK Secretary of State in 2010 to examine British extradition law, determine if there were problem areas and make recommendations, if any, for change.

The Panel (which I gather from the report is going to continue in some monitoring capacity) is a distinguished and balanced group of jurists with experience and knowledge of the often arcane area of extradition law. It was headed by retired Lord Justice of Appeal Sir Scott Baker, and also included: David Perry QC, a Temple Chambers barrister who acts for both the Crown and the defence in extradition and mutual legal assistance cases; and Anand Doobay, a well-regarded extradition lawyer and human rights activist.

This group was charged with looking at some particular aspects of UK extradition law, including: whether the European Arrest Warrant system was working well and fairly; whether there was imbalance in the UK-UK extradition treaty that was causing unfairness to persons sought in the UK; and how decisions are made about whether, in the case of cross-border crimes, to prosecute in the UK or extradite the individual. The matter was initially sparked by public outcry about the pending extradition of Gary McKinnon, a British citizen who hacked into US military computer systems from his home in the UK and allegedly caused millions of dollars of damage. McKinnon has attracted a legion of supporters, including many senior British politicians, who feel he should be tried in the UK rather than extradited--not least because of the draconian sentence he may face but also because he has Asperger's Syndrome (see more here).

The McKinnon controversy fuelled an already-ignited flame of discontent about perceived imbalance in the UK-US extadition arrangements post 9/11, and the Panel was appointed to try to sort this all out. However, the Panel was at pains to point out (somewhat condescendingly, it might be said) that there is a great deal of public misperception about extradition law, and accordingly they expanded the scope of their remit into what amounts to an extradition mini-textbook.

The report is over 300 pages in substance and includes another 100-odd pages of appendices. It is the middle of term and I am not ashamed to admit that I have not digested all of it as yet. I was struck by the Panel's finding that there is essentially nothing wrong with UK extradition law, and that all that is required is some tweaking of domestic arrangements and the urging of tweaking for international arrangements. In particular, they are robust on the point that the prima facie case requirement should not be re-introduced, which makes sense from an EU perspective but is a source of great frustration to those who feel that the UK is being overpowered by the US in extradition matters.

They did make some interesting suggestions for reform, however, which should be of significant interest to those who follow Canadian extradition law. They included the removal of human rights-related challenges from the discretion of the Secretary of State (the role played by the federal Justice Minister in Canada) and remitting them to the courts; and that the government should bring in non-means tested legal aid in extradition cases. On the issue of "forum bar" (i.e. where perpetrators should be tried in cross-border crime cases, what we call the Cotroni issue), they support the status quo but recommend more openness both in terms of the criteria employed in making the decision and the decision-making process itself. Lack of transparency is something Canada's international criminal co-operation process suffers from; there may be some points of interest here for our own law reform.