New Year, New Focus, New Blog

In case you are wondering if I am still around ... yes, I am!

After a turbulent year 2008 with very few posts and all the more technical difficulties, I decided to shift focus a little bit and at the same time change blogging software. 

I would like to thank all the readers of International Law and Policy for being such a loyal audience and I hope to welcome you on CompareLex. If you use a newsreader, you can click here to get directly to the newsfeed of CompareLex. And if you received automatic updates per email, you can do so here for CompareLex.

I am looking forward to seeing you all at the new address! Of course this blog will stay online for further reference.

Recent Developments in International Criminal Law: Justice, Peace, and the Role of the International Criminal Court

I have not yet managed to fix the commenting problems on my blog. Currently, I am exploring working alternatives, but this whole process will take me some more time ... so please bear with me...

Today's post will, again, not cover the difficulties of the European Union, but this fact shall not discourage anyone interested in contributing to the ongoing debate on regrouping the European Union [link to post and debate].

Instead, I would like to dwell in this post on another area of law covered extensively on this blog: international criminal law [link to my prior blog posts]. Some recent events in international criminal law have sparked some media attention and I cannot help but add my twopenn'orth:

• a former military leader was sentenced to life in prison for kidnapping, torture and murder [AP article on Menendez trial];

• another former war time leader indicted for genocide was arrested [N.Y. times article on Karadzic arrest];
  

• and an arrest warrant has been requested for an incumbent head of state on charges of genocide, war crimes, and crimes against humanity [ICC press release on situation in Darfur, Sudan].

A comparison of the above cases is incredibly revealing of the mechanisms and challenges in international criminal law. It is important to note that the first two cases (i.e. Menendez and Karadzic) differ considerably from the third (Darfur, Sudan): both Argentina and Former Yugoslavia are no longer on-going conflicts while Sudan still is.

The Menendez trial involved acts committed roughly 30 years ago and the massacre of Srebrenica happened in 1995. Since then, domestic peace has been re-established both in Argentina and Former Yugoslavia, respectively. And with some delay to their internal peace processes, both countries have tackled the issue of bringing former perpetrators to justice: Argentina with substantial delay, but self-propelling; Serbia somewhat quicker, yet upon increasing international pressure.

The situation in Sudan, however, is different. The conflict involving Darfur is still on-going and the regime accused of committing human rights violations is still in power. International peace efforts have not yet been successful. Therefore, the recent actions of the prosecutor of the International Criminal Court (ICC) [website] against the incumbent Sudanese President Omar Hassan Al-Bashir have stirred up a recurrent debate in international criminal law: i.e. the issue of the proper relationship between peace and justice.

Opponents of the recent request by the ICC prosecutor to issue an arrest warrant against the Sudanese President argue that the prospect of prosecution by the ICC might hamper current peace negotiations with the Sudanese government [see, e.g., N.Y. Times article on concerns brought by China and Russia in UN Security Council]. Proponents of an ICC arrest warrant generally put forward that an imminent ICC prosecution could allow UN representatives to press forward certain benchmarks in the current peace negotiations with Sudan [see today's International Crisis Group Weekly Update: Grono and Hara, Security Council Should Make President Meet Benchmarks]. Both arguments are, however, mainly focused on the peace negotiations and not on justice as an ultimate goal.

Therefore, I would be eager to learn your opinion on the relationship of peace and justice - in the case of Sudan, in particular, or from a more general, conceptional perspective.

Some further articles on this subject are listed below:

• Article by the Council of Foreign Relations [website] in today's Washington Post on Africa and the International Criminal Court [link to article].
• Article by Linda M. Keller, The False Dichotomy of Peace versus Justice and the International Criminal Court in the current issue of the Hague Justice Journal [link to journal website].
• My article Reconciling Peace with Justice: A Cooperative Division of Labor [link to abstract].

I am looking forward to your comments!

Technical Issue

I currently have a little issue with my commenting software. I will try to fix it as soon as possible. In the meantime, just click on the heading of the post that you would like to comment on. You will then get onto the individual post page and from there, the comment feature should work. Sorry for the overhead.

ECHR: Person Subject to Ill-Treatment by State Can Loose Victim Status

Today, the European Court of Human Rights (ECHR) [website] rendered its judgment in Gaefgen v. Germany (judgment and press release available on ECHR website, application no. 22978/05). The case had sparked an intensive debate on the permissibility of the threat of ill-treatment during police interrogation in order to save a human life. The facts of the case are as follows:

In 2002, German police arrested Gaefgen after he had been seen to pick up a ransom deposited for the release of a kidnapped child. After one day of interrogations aimed at finding the place the child was hidden, police resorted to threatening Gaefgen with ill-treatment if he did not cooperate. At that point, police still thought that the child was alive and that immediate action was required to avoid the child's death from thirst, hunger, and cold. Police did not know that Gaefgen had suffocated the child right after luring him into his apartment. As a result of being threatened with ill-treatment, Gaefgen showed the police the place where he had disposed of the child's body.

Gaefgen was then tried for murder. The trial court found that the police interrogation methods violated, inter alia, art. 3 of the European Convention on Human Rights (Prohibition of Torture and Inhuman or Degrading Treatment). As a result, the trial court declared all statements obtained during interrogation invalid. The court, however, accepted evidence secured as a result of Gaefgen's statements during interrogation ("resulting evidence"). Gaefgen was then sentenced for murder on the basis of a confession made during the trial, corroborated by the "resulting evidence." Gaefgen's appeals in German courts alleging torture and lack of a fair trial were not successful. He therefore turned to the ECHR.

The ECHR confirmed that Gaefgen had been subject to ill-treatment contrary t0 art. 3 of the European Convention of Human Rights, but determined that Gaefgen had lost his victim status due to the subsequent exclusion of the interrogation statements from the trial and the punishments of the implicated police agents. Also, the ECHR found that the admissibility of the "resulting evidence" did not violate his right to a fair trial, because this evidence was only used to verify Gaefgen's confession during trial. The only dissenting opinion in the 6 to 1 decision argues that the inclusion of the "resulting evidence" prevented the trial from being fair as Gaefgen could not have been sentenced for murder solely on the basis of his confession during trial.

From a human rights perspective, it is remarkable that the ECHR sees the possibility for a torture victim to loose its victim status due to supposedly impeccable demeanor by the torturer at a later stage. Should it be possible to make good for previous acts involving torture or the threat of torture? Should a torture victim be susceptible of loosing its victim status? What are your thoughts on this case?