U.S. Affirms that It Adheres to Rome Statute Signatory Obligations: It Should Put This In Writing

Jennifer Trahan is associate clinical professor at NYU’s Center for Global Affairs (NYU-SCPS). She is also chair of the American Branch of the International Law Association International Criminal Court Committee and was a member of the American Bar Association’s 2010 International Criminal Court Task Force.

A little-noticed event has taken place.  Before he returned to Yale Law School, top State Department Legal Advisor Harold H. Koh has made it clear in three speeches that the U.S. (despite an earlier writing to the contrary made under the Bush Administration), does respect the “object and purpose” of the International Criminal Court’s Rome Statute.  In other words, the U.S. considers itself a signatory to the treaty.  Koh’s words—which reaffirm only a lose commitment to support the Court—are nonetheless a significant step in the right direction, continuing the U.S.’s policy (under the Obama Administration) of positive engagement with the ICC.

On December 31, 2000, then-U.S. War Crimes Ambassador David Scheffer signed the Rome Statute on behalf of the U.S.  Under article 18 of the Vienna Convention on the Law of Treaties, a signatory is obligated not to do anything that would undermine the “object and purpose” of a treaty.  (The U.S., which is not a party to the Vienna Convention, does recognize it as customary international law.)  However, by note dated May 6, 2002, the Bush Administration stated that the U.S. was no longer bound by the obligations of a signatory. Specifically, the note from John R. Bolton stated that “the United States does not intend to become a party to the treaty.  Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000.”

Koh has now orally negated the Bolton note by remarks he made that the Administration’s policy is not to defeat the object and purpose of the Rome Statute.  He stated this at N.Y.U.’s Center for Global Affairs on October 27, 2010, the Grotius Center of Leiden University on November 16, 2012, and the New York City Bar Association on November 26, 2012.

The Bolton 2002 note did not in fact withdraw the U.S.’s signature because there is no provision in the Vienna Convention for removing a signature to a treaty.  Yet, it was nonetheless a dispiriting low-point that the Bush Administration chose not to adhere to even the very minimal obligations of a signatory to the treaty—not to undermine the “object and purpose” of the ICC.

While various NGOs and others—including the American Branch of the International Law Association’s International Criminal Court Committee (which this author chairs)—have urged the Obama Administration to send a new note negating the Bush Administration’s note, Koh’s oral statements are nonetheless welcome.  While the statements do not necessarily have the weight of a counter-note, hopefully, support will galvanize to send such a counter-note.  Koh has taken the position that Bolton’s note is merely a piece of “graffiti” and no further action is required; yet, the U.N., in its listing of Rome Statute States Parties and signatories has a footnote by the U.S.’s name still reflecting the Bolton note as the official position of the U.S. government.

Being a signatory only creates a loose commitment for a state to support a treaty, and is in no way akin to joining the treaty—done through the process of ratification or accession.  The U.S.—which now supports the ICC’s work on a case-by-case basis—should have no problem in supporting the “object and purpose” of a court designed to prosecute the worst instances of genocide, war crimes and crimes against humanity.

*Article re-posted with permission of author*

Uruguayan Supreme Court Judge Unprecedented Resignation Leads To Court Granting Technical Immunity

By Brendan Bergh
Impunity Watch Reporter, South America 

MONTEVIDEO, Uruguay – The resignation of Uruguay’s Supreme Court Justice Marina Moto sent shockwaves through the country. Not simply due to the Justices’ unparalleled transfer from the criminal sector to the civilian court, but because Judge Moto had been the main driving force behind the investigations of crimes against humanity during the military governments control of the country from 1973-1985.

Judge Mota has inexplicably resigned her Supreme Court Criminal Judgeship for the the civil judgeship.(Photo Courtesy of BBC)

Human rights defenders and groups throughout Uruguay and Argentina have protested the change, citing Mota as one of the most significant contributors in trials against military and civilians related to war crimes. She had more than 50 open cases under investigation at the time of her transfer.

Her transfer triggered wide spread reaction, Human rights officials organized a joint-protest at Mota’s ascension to the civil judgeship. Some 300 protestors came to show their disapproval for her shift, and of a new controversial Supreme Court ruling that declared unconstitutional a law that prevented the statute of limitations on crimes committed during the military regime. There were clashes at the protest requiring police action to evict some of the unruly protestors.

The court’s ruling which repealed law 18,831 has effectively nullified investigations into military personal accused of human rights violations and granted technical immunity to those accused. The court justified its ruling that abuses committed during the military regime cannot be considered crimes against humanity, because at the time the crimes were committed, there were not considered crimes against humanity within the Latin American country.

The Uruguayan military dictatorship is accused of forcibly disappearing some 200 people. Thousands of others may have been arbitrarily detained and tortured. According to data, Uruguay had one of the highest rates of political prisoners per capita in the world in the 1970s.

Alberto Pérez Pérez, who currently serves as a judge of the Inter-American court of Human Rights has stated that if the Supreme Court ruled 18, 831 unconstitutional, than the country would be in violation of international law.

While Moto claims she has no reason to explain herself, Enrique Rubio a member of the Uruguayan Senate plans to call the justice before parliament to justify her actions. While a Supreme Court Justice has never called a justice before them since the fall of the dictatorship, the parliament lacks a legal means to force a compulsory presence from a Supreme Court Justice. Despite not being able to force a meeting, Rubio has referred to the meeting as an extension of an invitation to explain herself.

For further information, please see:

BBC Mundo – Uruguay: Protests At Supreme Court For Ruling On Human Rights Cases – 25 February 2013

BBC Mundo – How Are Cases Of Abuse Of DD.HH. In Uruguay – 23 February 2013

BBC Mundo – Uruguay: Judge Transfer Sweeping The World Of DD.HH. – 22 February 2013

Pulsa Merica – Uruguay: Human Rights Judge Mota Transferred To Civil Court Duties – 17 February 2013

 

Beijing Restaurant Owner Bans Patrons From Japan, the Philippines, Vietnam, and Dogs

By Irving Feng
Impunity Watch Reporter, Asia

BEIJING, China – A Beijing restaurant owner, recently displayed a sign in the window of his establishment which read, “This shop does not receive, the Japanese, the Philippines, the Vietnamese and dog(s).”

The Beijing restaurant owner’s sign banning Japanese, Filipinos, Vietnamese and dogs. (Photo Courtesy of the BBC)

The restaurant owner, identified only by his surname “Wang,” refused to serve patrons of the three ethnicities delineated in his sign.  His refusal to serve Japanese, Filipino, and Vietnamese customers is perhaps a nod to the extreme nationalism prevalent in China due to the history of maritime and national boundary disputes in the eastern part of the country and in the South China Seas.

The most recent dispute is an ongoing feud between China and Japan over the Senkaku Islands (which the Chinese call the Diaoyu Islands).  The Japanese control the islands, however, Beijing lays claim to the island territory.  Vietnam and the Philippines are also feuding with Beijing over additional sets of islands in the South China Sea.

Frustrations and tension over these disputes has led to widespread Anti-Chinese demonstrations in Vietnam’s largest metropolitan hub, Ho Chi Minh City.  Additionally, thousands of Vietnamese resorted to posting on social networking sites and sending in comments to local newspapers to offer their angry reactions regarding the restaurant owner’s sign.

The restaurant owner removed the sign due to intense pressure from public outcries which he described to be “bothersome” and, perhaps, intrusive to his normal flow of business.  The central Chinese government has not condemned the restaurant owner’s actions nor issued any official statements regarding the matter.

Zhai Lei Ming, Chinese Consul General to Ho Chi Minh City, issued a statement to a local Vietnamese newspaper deploring Wang’s actions, saying it was “wrong” and “definitely unsatisfactory.”  Zhai commented that horrible people exist all over the world, and the opinions of the singular restaurant owner did not represent the opinion of the Chinese people or the central government.

Zhai lacked knowledge on why the central government had not released a statement or reprimanded the individual for his actions and could not comment on this issue.  When the restaurant owner was asked to comment, he told the press that he had no regrets regarding his actions and would not apologize for the sign.

The Department of Foreign Affairs in the Philippines, released a statement, possibly vindicating China, calling the restaurant owner’s actions an isolated incident.  Raul Hernandez, Assistant Secretary in the Department of Foreign Affairs, told a local newspaper that he hopes the sentiments of the restaurant owner are not state policy, and Filipinos are welcomed into Beijing restaurants.

For further information, please see:

The Age – Outrage over Beijing restaurant’s racist sign – 28 February 2013

BBC – China restaurant takes down maritime dispute sign – 28 February 2013

Breitbart – BEIJING RESTAURANT REMOVES ‘RACIST’ SIGN AFTER FURY – 28 February 2013

Tuoi Tre News – Beijing eatery wrong to post racist sign: Chinese diplomat – 28 February 2013

Sudan Judicially Orders Amputation of Convict’s Limbs

KHARTOUM, Sudan – For the first time since 2001, government doctors were judicially ordered to amputate a man’s right hand and left foot as punishment for the crime he was convicted of.

Corporal punishment has been part of Sudanese law since 1983. (Photo courtesy of AFP/File, Ashraf Shazly)

30-year-old Adam Al-Muthna was convicted of armed robbery under article 167 of the 1991 Sudanese Penal Code. Under the same law, the penalty for such an offense is cross amputation. So, on February 14 Muthna was brought to the Sudanese Ministry of Interior’s Al Rebat Hospital and had his limbs cut off.

The Physicians for Human Rights (PHR), along with the African Centre for Justice and Peace Studies (ACJPS), Human Rights Watch, and REDRESS, cried that the amputation was against the credo of the medical profession. “Cross amputation is a form of state-sponsored torture,” said Dr. Vincent Iacopino, senior medical advisor at Physicians for Human Rights. “The complicity of medical personnel in such practices represents a gross contravention of the UN Principles of Medical Ethics for health personnel, particularly medical doctors who engage, actively or passively, in acts of torture or other cruel, inhuman or degrading treatment or punishment.”

According to the executive director of ACJPS, Osman Hummaida, “amputations violate the absolute prohibition of torture and cruel, inhuman or degrading treatment or punishment under international law and have no place in any criminal justice system.”

Thus, hoping to convince the Sudanese government to reform its penal laws, the PHR, ACJPS, Human Rights Watch and Redress came together to demand not only Sudan, but international actors as well, to condemn the practice immediately.

“Authorities should immediately stop imposing such cruel and inhuman punishments, and bring laws in line with Sudan’s human rights obligations,” said Daniel Bekele, Africa director at Human Rights Watch. “They should stop ordering amputations, stoning, flogging and all other forms of corporal punishment that violate basic human rights.”

Dr. Lutz Oette, Counsel at REDRESS added that corporal punishments are “frequently used as an instrument of repression against those who do not conform to the State’s conception of moral order.” She said that this was contrary to the ruling in Doebbler v Sudan, concerning the use of flogging as a punishment in Sudan. In that case, the African Commission on Human and Peoples’ Rights ruled that: “there is no right for the government of a country to apply physical violence to individuals for offences. Such a right would be tantamount to sanctioning State sponsored torture contrary to article 5 of the African Charter.”

In 1996, Sudan signed, but has yet to ratify, the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

 

For further information, please see:

AFP – Sudan man’s foot, hand ‘amputated’ by court order – 28 February 2013

France Diplomatie – Sudan – Court ordered amputation – 28 February 2013

Radio Dabanga – Sudanese Doctors Union condemn reintroduction of cutting hand and foot – 28 February 2013

UPI – Rights groups blast Sudan amputation – 28 February 2013

All Africa – Sudan Doctors Carry Out Court Ordered Amputation Sentence – 27 February 2013

Human Rights Watch – Sudan: Doctors Perform Amputations for Courts – 27 February 2013

Reuters – Sudan cuts off hand, foot of man convicted of robbery: activists – 27 February 2013

Brazilian Police Storm Rio Slums In Preparation For Soccer

By Brendan Oliver Bergh
Impunity Watch Reporter, South America

BRASILIA, Brazil – The allure of the world cup draws near, and Brazil has taken drastic actions to prepare Rio de Janeiro before crowds and crowds of people descend upon the city. After the relative success of past military incursions into the favelas, or to put it more aptly, slums of Rio, police, tanks and military units stormed multiple favelas over the past months in order to reestablish control over the population.

Brazilian police and military storm Rio’s slums in order to pacify the areas before the World Cup arrives next year. (Photo Courtesy of AFP)

Previously drug backed gangs took control of the slums and the people languished in poverty without access to many basic necessities. Since the military occupation, spokesmen claim that the pacification has benefited over 400,000 impoverished people, with another 1.1 million people left that could still benefit. The overall plan is to provide social services and improve the quality of care of those at risk while quashing any illegal activity that could harm their reputation when FIFA and the Olympic Committee arrive to assess the suitability of Brazils shinning gem that is Rio de Janeiro.

The operation which began in earnest back in January, represents a massive shift to clean up the slums. Early last week, a Brazilian Police force supported by military tanks and helicopters stormed gang occupied slums near Rio’s international airport. Fortunately most of the pacification incursions have gone without a hitch. The police have taken to celebrate their victories by raising the Rio’s and Brazil’s flags on the roofs of buildings, symbolizing the end of the drug traffickers dominion over the impoverished parts of the city.

Critics of the operation state that while the pacification program is effective, the favelas targeted are not the poorest areas, and are simply focused on areas that would be popular during the World Cup and the Olympic Games. Civilians living within the favelas have had different reactions to the pacification. Some note that while there is less major crime, petty crime has increases as they no longer fear retaliation from local crime bosses.

After the pacification of the controlling gangs, staff from Rio’s municipal authority could start entering the areas safely without fear, and begun implementation of new social services, such as schools, healthcare centers and trash collection. Eduara La Rocque, president of the Instituto Pereira Passos has noted that there are over 150 new schools within the favelas as well as formalizing the area into the confines of Rio’s boundaries and maps. Ms. Law Rocque has hoped to implement many new training courses so the previously disenfranchised can acquire legitimate work experience in the future.

However because of the lack of resistance from drug traffickers many believe that the gangs have simply been relocating to other favelas, or to towns outside Rio, effectively just spreading out the problem.

For further information, please see:

Publico – Brazilian Police Occupy Slums 13 – 3 March 2013

Voice of Russia – Brazil: Police Occupied The Favelas In Rio De Janeiro – 3 March 2013

Terra – Police Ranks Near The Slums Of Rio De Janeiro Airport – 3 March 2013

BBC – Rio’s Shanty Towns Spread Their Wings – 8 February 2013