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Thursday, December 10, 2009

Bring your Appeal to School Week: International Justice marches on for Lubanga, Bemba and Sljivancanin

Early December has been quite busy in the Hague international tribunals. The Karadzic flying circus has gotten all the attention in recent weeks, but other decisions require at least being mentionned.

At the ICC, on 2 December, the Appeals Chamber reversed the decision on the interim release of Jean-Pierre Bemba issued last August and where a single judge had decided that changed circumstances allowed for such a release. In its Judgment, the Appeals Chamber found that the pre-trial chamber had misapplied the conditions under which a person could be considered for interim release. We won't go into the details of the reversal, which is in line with the case-law of the ICC up to now, namely, that it is extremely unlikely that any defendant will ever be granted interim release, given the conditions imposed and that the Court, although pretending to apply Human Rights standards, has in effect reversed the principle of liberty and imposes incarceration as a rule.
More specifically, by taking into account the gravity of the crime and possible sentence, a condition which is not contained in article 58, the Appeals Chamber tips the balance in favour of detention. Indeed, All crimes are "grave". That is the whole point of the ICC in the first place. But the day-to-day application of the Statute leads to the fact that we have to accept a hierarchy of gravity between the crimes if the use of gravity within the Statute is to have any sense. Generally, gravity is a continuing thorn is the side of the Judges at the ICC. This is obvious in the interim release decisions, but also in the admissibility case-law where pre-trial, trial and appeal chamber have in effect given up on putting into effect article 17.1)d) of the Statute and left a total discretion to the prosecutor on the evaluation of gravity.

Still at the ICC, the Appeals Chamber yesterday, the 8 December, reversed the Trial Chamber decision on the legal recharacterisation of facts, on which I had commented on in a previous post. The Trial Chamber had decided to use Regulation 55(2) of the Regulations of the Court to pronounce of the possible change in the legal characterisation of the facts in order to include charges of sexual violence in the indictment. The Appeals Judgment is fairly uncontroversial, in the sense that it reverses a criticised decision, but its reasoning is not beyond reproach.
It first finds that Regulation 55 is not in principle incompatible with the Statute of the Court, especially with Article 61(9) on the modification of the charges after the confirmation of charges, or with general principles of international law.
The Appeals Chamber however considers that the Trial Chamber misinterpreted the Regulation because it cannot be read as allowing the Trial Chamber to take into account in its decision facts and circumstances not contained in the charges, as prescribed in article 74(2) of the Statute. Moreover, according to the Appeals Chamber, the addition of new facts and circumstances can only be done in accordance with article 61(9), which gives the prosecutor power to do so. In the words of the Appeals Chamber:
The Trial Chamber's interpretation of Regulation 55 would circumvent article 61 (9) of the Statute and would blur the distinction between the two provisions. As the Prosecutor notes, the incorporation of new facts and circumstances into the subject matter of the trial would alter the fundamental scope of the trial. The Appeals Chamber observes that it is the Prosecutor who, pursuant to article 54 (1) of the Statute, is tasked with the investigation of crimes under the jurisdiction of the Court and who, pursuant to article 61 (1) and (3) of the Statute, proffers charges against suspects. To give the Trial Chamber the power to extend proprio motu the scope of a trial to facts and circumstances not alleged by the Prosecutor would be contrary to the distribution of powers under the Statute.
In deciding that Regulation 55 is not incompatible with article 61(9), but by interpreting article 61(9) as it does, the Appeals Chambers is threading a tight interpetrative rope. Indeed, 1) the article only mentions new charges, not new facts and circumstances and 2) the distinction between the two is difficult in practice. Indeed, what would be the point of a recharacterisation if it didn't affect the charges? Even if trial judges were to recharacterise facts already contained in the charges, it would probably affect the charges themselves, for example by affecting the criminal liability, from direct responsibility to command responsibility. In effect, I do think there is some tension between the two provisions.
Which brings us back to the broader overarching problem of the interaction of civil law and common law in the founding documents. As I pointed out in my earlier post, Article 61(9) is a common law approach, giving discretion to the Prosecutor, whereas Regulation 55 is civil law inspired by giving more power to the judges. Despite the wishful thinking of many, I don't believe that the two approaches are compatible when drafted this way on a case-by-case basis with no clear and explicit relationship between the two.
Finally, a short comment on prosecutorial strategy. This is not discussed in the Appeal, but the Trial Chamber decision was a clear result of the Prosecutor wanting to have his cake and eat it. Indeed, a lot of attention has been devoted to the role of victims in that decision or the tendencies of the Judges, but the Prosecutor is also partly to blame. He chose to prosecute "only" the enlisting of child soldiers, but all through the trial, as early as his opening statement, he insisted on the conditions under which these children operated, especially in relation to sexual abuse. Despite it not being directly relevant, this was obviously done to give some extra gravitas  to the proceedings and the strategy nearly backfired. Maybe the Prosecutor will show more caution in the future.

Finally, on the same date, 8 December, the Appeals Chamber of the ICTY dismissed the motion filed on behalf of Sljivancanin for the Judgment rendered by the Appeals Chamber. In that Judgment, the Appeals Chamber had reversed the finding of acquittal against the Defendant on one of the counts and consequently imposed a sentence in relation to the finding of guilt. Judge Pocar dissented, considering that once the error of the Trial Chamber identified, the case should have been remitted the case to the Trial Chamber for a re-evaluation of the facts in light of the correct application of the law.
The main issue, as argued carefully in the motion, was whether the reversal of the finding of acquittal by the Appeals Chamber and subsequent sentencing, violated the right of Appeal of the Defendant as recognised in Article 14(5) of the ICCPR. The Appeals Chamber, in a short and undocumented decision declines to even consider the motion, considering that "the Appeals Chamber has no power to reconsider its final Judgments".
You can read the motion if you want more details on the reasoning of the Defendant's counsel, but generally I find the decision puzzling. Let's not insist on the whole idea that an acquittal can be appealed by the prosecutor in the first place. I would tend to agree that this should be barred, as in the US constitution, if only because the State (or institution) has unlimited means to get things right the first time, as opposed to the Defence, but apparently, the practice at the ad hoc tribunals is different. What is specifically puzzling here is that, on the face of it, it does appear like a clear violation of the right of Appeal as protected by Human Rights Standards. The Appeals Chamber clearly embarks on a very specific factual analysis of the evidence which is more of a First Instance role than an Appelate role, and apparently didn't recall witnesses or allow "adversarial" discussion. As pointed out by Pocar in his dissent:
The Appeals Chamber enters a conviction based on the trial record without having observed the witness testimony or the presentation of evidence, factors which may be particularly important in assessing witness credibility. In so doing, the Appeals Chamber enters, for the first time in this case, findings on matters which are primarily within the responsibility of the Trial Chamber, such as finding on issues of fact that are crucial to a verdict of guilt. Such findings are now destined to remain unchallenged, in clear violation of Sljivancanin’s right to appeal against convictions.
I don't see how it would not be in the interests of justice for the Appeals Chamber (with the exact same composition as in the impugned Judgment... hum...) to pronounce on the motion, especially when out of the 5 appelate judges, one (Pocar) wanted to send the case back to the Trial Chamber and another (Vaz) actually concurred with the finding of acquittal at the trial level.

All in all, a good week for commentators where international justice marches on, irrespective of the rights of Defence (Bemba, Sljivancanin) and setting aside the requirements of consistency in the intepretation of criminal statutes (Lubanga)...

Tuesday, November 24, 2009

Guest Post: in Favour of Trials in Absentia in International Tribunals

I have long had conversations with people about the issue of trials in absentia and have generally encountered scepticism. This question arose again recently (if indirectly) in the Karadzic decision to appoint standby counsel for the defendant should he decide to continue to "obstruct the proceedings" and prompts me to share some views on the matter.

I would like to point out from the start that I'm not defending that trials in abstentia are a perfect solution or even generally preferable to having trials in the presence of the accused. That would be preposterous. Of course the rights of the defence will be better protected (at least in theory) with the accused present. What I'm arguing is that the practice should not be excluded ab initio as a procedural tool in some situations. Most international institutions have excluded it and I think that's a mistake.

for one, I have alway been unconvinced by the Human Rights arguments for their total rejection. For Human Rights lawyers, the practice is considered contrary to fundamental human rights. I don't think so. None of the international Human Rights documents explicitely prevent this practice, to the best of my knoweldge. The European Court of Human Rights has in fact said that "Proceedings held in an accused’s absence are not in principle incompatible with the Convention", but imposed some strict conditions; such as the obligation to inform the accused, the right to appeal and be represented by counsel or the right to fresh assessement of the charges. Other international institutions have considered this issue and, although they show caution about the practice, they don't clearly ban it.
In fact, I think this is another case where the human rights hegemonic discourse is trying to wrap in universality what is a question of legal culture. Common law jurisdictions will generally be more unlikely to suppport this practice, given the importance of the adversarial procedure. On the contrary, the civil law inquisitorial system, where the judge has considerably more power in exercising control over the proceedings, makes the practice less objectionable.

Despite this, most international tribunals don't provide for trials in absentia. There is only a possibility of removing a defendant from the proceedings if there is too much disruption or if he has waived his right to be present. There are however two interesting exceptions to this trend. First of all, the Special Tribunal for Lebanon is the first international tribunal to explicitely allow trials in absentia. This is of course due to the influence of lebanese civil law on the drafting of the Statute and indicates that claims suggesting its total ban are not entirely justified. The second exception, which is not really one, but does relate to the issue, is the possibility in the Rome statute for the confirmation of charges hearings to be held in the absence of the accused, "when the person has: (a) Waived his or her right to be present; or (b) Fled or cannot be found and all reasonable steps have been taken to secure his or her appearance before the Court and to inform the person of the charges and that a hearing to confirm those charges will be held" (Article 61(2)). This allows the proceedings to continue despite the continued flight of the accused and is a symbolic step in holding "someone" accountable, and, from a political perspective, to put pressure on states to arrest the person under indictment.

Which brings us to our final considerations. Once established that trials in absentia are not in fact contrary to international law, under certain procedural conditions, why argue in their favour from a policy point of view? Those who are opposed to them usually put forward the argument that it will decredibilize the international tribunal by giving an impression of unfairness and bias agains the accused. That is certainly true in theory. It is considerably more satisfying for the image of justice in the eyes of the victims and the world community to actually see the defendant in the dock.
However, it is not a totally satisfying argument.Indeed, for one, even when the Defendant is present, the extreme politisation of these international trials anyway creates a manichean debate with supporters and detractors of international tribunals not budging from their position, whatever the reality. The practice itself of the tribunals, as illustrated by the recent Karadzic fiasco, shows that the perception of bias will exist irrespective of the presence of the accused.

Finally, I believe that there comes a tipping point where the interests of justice and efficiency outweigh the desired situation of having the defendant present. Indeed, once everything has been done to secure the presence of the accused and sufficient time given for his arrest, does the institution really lose more of its credibility by just waiting and showing the world how powerless it is, or by starting the trial anyway, with the required guidelines being satisfied? Given the extremely symbolic nature of international prosecutions, I'm not sure it would be more detrimental to the reputation of the ICC, for example, to start the trial of the remaining LRA leaders (provided the complementarity principle has been correctly applied), rather than have to announce one day that they've in fact all be killed by government forces (or, more likely, that they killed each other...) and that there will never be a trial.

There comes a moment where some process is probably preferable to no process at all. I don't provide here an answer to when exactly that might happen, but the option should at least be on the table.

PS: You might be wondering who the "guest", in the "guest post" is... in fact, there isn't any guest, I just thought it looked very professional, like all the other blogs who get some prestigious academic or practictionner to comment on various issues... that might happen in the future (please contact me should you wish to contribute), but given today's topic, I find it quite fitting to have a guest post in abstentia...

Thursday, November 5, 2009

More drama at the ICTY: bring on the popcorn for the Karadzic trial!

In the latest episode of the trial, the ICTY Trial Chamber just decided to appoint counsel to Karadzic following a first week of trial where he chose not to attend the proceedings on account of not having had enough time to prepare... and to postpone the commencement of trial until march. Moreover:
In the present circumstances, considering the fundamental nature of the right to selfrepresentation, which cannot be diminished lightly, and in accordance with the principle of proportionality, the Trial Chamber finds it necessary to instruct the Registrar to appoint counsel, who will begin immediately to prepare him or herself to represent the interests of the Accused when the trial resumes, if that should be required. Notwithstanding the appointment of counsel for this specific purpose, the Accused will continue to represent himself, including by dealing with the day-to-day matters that arise, such as the filing of motions and responses to motions filed by the Prosecution, and further preparing himself for the trial.
the defendant will therefore continue to defend himself (even at the recommencement of trial), the counsel only coming in if there is further obstruction...

We won't go into the legal technicalities of the issues, dealt with elsewhere. Just a few comments.
If I'm undestanding this correctly, their refusal to allocate more time to the defendant led him to refusing to attend his trial, therefore crossing the judges who, to punish him, give me an extra four months for his appointed counsel to prepare for trial, while still allowing Karadzic to continue representing himself for the time-being, thus somewhat giving him what he asked for in the first place... makes sense.
Moreover, this does not really solve the issue of his presence at trial. The drafters of the ICTY Statute decided not to have trials in abstentia. One can argue the pros and cons of that (I would actually be in favour of having those... blame my French legal training... more on this some other time...). But that's the situation right now. Given that, contrary to the ICTR, the ICTY did not adopt a rule allowing it to proceed in the absence of the accused, I don't really see on what basis they would continue the trial even with an appointed counsel. The decision seems to suggest that the defendant might forfeit his right to be present by refusing to be present. This is the reasoning behind in abstentia trials and cannot be sustained here (argument in absurdum here, but if this is the case, let's apply it to Mladic and start his trial tomorrow). Karadzic did not say "go ahead guys, i can't be bothered attending". He is making a procedural statement (if a somewhat overdramatic one) on the fair conduct of proceedings. That is not the same as forfeiting his right to attend.
More generally, whatever the position one adopts on this issue, the chamber has put itself between a PR rock and a communications hard place. What kind of mixed message is it sending out, by trying to be tough, and then by threatening the defendant with what he asked for? On the other hand, this is a semantic way of sorts to save face. They couldn't really say "ok, you win this time, but be careful, we're watching you", which is in effect what they have done.

And now, bow your heads and let's have one minute silence for the completion strategy...

Wednesday, September 23, 2009

Spot the Errors... the ICC, "established by the UN in 1993"...

I know I am only giving it totally undeserved publicity by posting it here, but the recent column in the Jerusalem Post by Seth Frantzman on the ICC and international justice is just too good to be true.

It presents the ICC as a UN court established in 1993, which "has also prosecuted war crimes in the former Yugoslavia and Rwanda through special tribunals", with no Appeals system and an American judge on the bench (did I miss the USA joining the ICC???).
It is not only inaccurate, it is also biased (the two being unfortunately frequent travel companions). It glorifies Nuremberg... which had the same flaws as supposedly identified in the ICC. The author wrongly states that the ICC has no appeal system, which was indeed the case in Nuremberg, and criticises the ICC for not doing trials by jury, when neither Nuremberg, nor even Israel in the Eichmann case provided jury trials!

Once you get over the total shock of how many factual mistakes there are in the text, it actually makes for some amusing reading. It should be standard reading in both law school and journalist students as a masterclass in what not to do...

Feel free to contact the editors of the Jpost to express your shame/anguish/sadness/joy...

Wednesday, September 2, 2009

Holding the ICC review conference in Kampala: On the edge of the cliff... and taking a step forward!

This is old news for anybody following these issues, but I've been wanting to make a few comments for some time now on the organisation of the Review Conference of the ICC in Kampala next year. This decision was taken last November by the ASP.
Uganda is one of the situations under consideration by the ICC, along with DRC, Darfur and the Central African Republic. Which means that out of the 110 countries which are party to the Rome Statute, the ASP felt the need to choose one the only 3 State parties the Prosecutor is investigating (Soudan not being a State party). This is, to say the least, a strange decision.

We have been told that this is to appease relations with Africa, in light of criticism that the ICC has focused so far exclusively on African States, despite having received communications from all over the world, including the ones that he publicly dissmissed from Venezuela and Irak. This distrust in the institution became very clear and public when the African Union adopted a resolution stating that it would not cooperate with the ICC on the Bashir Arrest Warrant until the the Security Council considered whether to defer the case under its article 16 powers. In this context, the traditional debates on the victimisation of Africa and western neo-colonialism find renewed strength.

However, this reasoning is unconvincing.
For one, it should be recalled that, except for the case of Sudan, all the situations under consideration have been self-referrals coming from the governement themselves, including Ivory Coast, who made a declaration under article 12(3) accepting the jurisdiction of the court without being a party. It seems a little disingenuine to complain afterwards. Given this situation, the real problem is not so much the exclusive focus on Africa, but the systematic refusal by the OTP to exercise his proprio motu powers to open an investigation when it hasn't be referred by a State or the Security Council.
Second of all, it is difficult to speak of neo-colonialism when the ICC, through its prosecutorial policy, is actually indirectly supporting the people in power. Indeed, both in DRC and Uganda, arrest warrants have been issued essentially against political rebel groups, not the governement. Even in CAR, the Prosecutor managed to do Kabila a favour by indicting and arresting Jean-Pierre Bemba, his strongest political opponent.
Third of all, the arguments of neo-colonialism and power struggle have some truth to them, but have been misused to the point of losing most of their credibility. It is often a fig-leaf to hide african leaders' incapacity to implement democratic reforms and more generally to allow them not to ever take responsibility for their own failings. The international community has screwed up time and again in Africa, but this is no excuse or reason for Africans to compound these errors with their own actions.

Beyond the general political dimension, and to get back to the review conference, choosing Uganda is yet again another PR slip, after the famous one where the arrest warrants where made public by the OTP in a joint press conference with Museveni. Uganda is the only situation where nobody was arrested so far. Even Sudan sent a token case to the Hague, with Abu Garda making a voluntary appearance before the Court to face three counts of war crimes (whether attacking and killing 12 AU soldiers and appropriating some material is a crime of sufficient gravity is another problem... suprisingly, the PTC declined to consider the issue... more on this as the case evolves).
The ASP should have taken a stand, in terms of perceptions of neutrality in relation to Uganda. The whole "situation" is under investigation, which means potentially government officials and even Museveni. Does the ICTY hold meetings in Karadzic's holiday home? It is not neo-colonialism to state that Museveni has contributed to the instability of the whole region since his election in 1986 (DRC, Rwanda, Sudan), that he has manipulated the ICC in the context of the ongoing civil war and that he is still trying to do so today. It is bad taste to reward him with a review conference. The ICC is on the edge of the cliff in its relation to Africa, and has decided to take a step forward...

PS: I have been told that in fact, the ASP had no other choice, because Uganda was the only candidate for the organisation. Why not organise it with the UN in that case?

PPS: Our political comments do not imply that we pass judgment on the legal choices made by the Prosecutor. There would of course be a lot to say about the choices of the OTP in its cases and charges, but let's keep this debate for another time...

Monday, August 10, 2009

The Never-Ending Lubanga Trial : A Legacy for Our Children... who will have reached old-age before it concludes!

On the French Bastille day, July 14th, the Trial Chamber in the Lubanga case issued a "Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court". Under this fairly enigmatic title, the Chamber, by a 2-1 vote, with a strong dissent from the Presiding Judge Fulford, considers that the facts underlying the case against Thomas Lubanga could characterise 5 new crimes under the statute of the ICC (3 of sexual slavery (both as a war crime and a crime against humanity), one of inhuman treatment and one of cruel treatment). It should be recalled that Lubanga was up to now charged with 6 counts linked to child soldiers.

In order to reach its decision, the Court relies on Regulation 55(2) of the Court's Regulations, according to which:
"If, at any time during the trial, it appears to the Chamber that the legal characterisation of facts may be subject to change, the Chamber shall give notice to the participants of such a possibility and having heard the evidence, shall, at an appropriate stage of the proceedings, give the participants the opportunity to make oral or written submissions. The Chamber may suspend the hearing to ensure that the participants have adequate time and facilities for effective preparation or, if necessary, it may order a hearing to consider all matters relevant to the proposed change."
As much as I would like to disagree with it entirely on principle, I have to agree partially with the Chamber, or at least admit that their interpretation of the Statute and Regulations is possible. According to the Dissenting Opinion, as well as Kevin Heller at Opinio Juris, the use of Regulation 55(2) is contrary to both Article 61(9) of the Statute and Article 74(2) of the Statute.

Let's start with Article 61(9), dealing with the confirmation of charges and according to which "After the commencement of the trial, the Prosecutor may, with the permission of the Trial Chamber, withdraw the charges". The dissenting analysis is that this means that the Trial Chamber's only power in relation to the charges is to allow the Prosecutor to withdraw them. This makes sense, but it is also possible to read this provision as laying down the powers of the Prosecutor, not the Trial Chamber. This could be confirmed by the grammatical constructionof the Article, which states that "The Prosecutor may..." rather than "the Trial Chamber may not..." Moreover, Regulation 55(2) relates the legal qualification of facts, not the question of charges. Of course this sounds like semantic hair-splitting, and I agree, but unfortunately, the multiplication of terms is the drafters' fault, not mine.

As for Article 74(2), it relates the requirements for the decision: "the decision shall not exceed the facts and circumstances described in the charges. the Court may base its decision only on evidence submitted and discussed before it at trial". The Trial Chamber contends that this requirement does not apply to Regulation 55(2), because it comes into play during the trial, and not in taking the decision. It bases its argumentation on a comparison with Regulation 55(1), which expressly refers to Article 74(2) and its conditions. Again, as much as I would like to disagree with the Majority Decision, their interpretation, even if it doesn't make sense, is possible given the drafting of the various provisions. If the drafters wanted to include the Article 74(2) safeguard in Regulation 55(2), they shoud have included it!

Where I do have a major issue with the decision, and this is where the criticism should focus, is on the definition of "legal characterisation". On this point, I perfectly agree with the minority opinion. The new crimes brought forward are so removed from the ones in the original charges, that the facts already brought forward would not be sufficient to be able to rely on them for a conviction. New facts would necessarily be needed, especially in relation to the widespread and systematic character of the proposed crimes against humanity charge of sexual slavery and the proof of Lubanga's mens rea in relation to that, which is different that the one for the war crime of enlisting child soldiers. Such a broad definition of "legal characterisation" basically allows the Trial Chamber, nudged forward by the victims, to bring entirely new charges against a defendant during the Trial, which is extremely problematic for the rights of the defense, even if the Trial Chamber did recognise that it needs to give sufficient time to Lubanga to respond, hence the notice under Regulation 55(2).

In conclusion, what to make of this decision?
In my opinion, the only real bad decision-making is in relation to the the legal definition of "legal characterisation". If not, they make use of the poor drafting of the Statute, RPE and Regulations. Some authors call this "constructive ambiguity", which is often lauded as allowing the judges some leeway in adapting the statute to new situations. But, even accepting, for the sake of argument, that it is a good thing to allow criminal judges to makes up rules as they go along, one must accept in consequence that this "flexibility" can go both ways, depending on the agendas of the judges (more on this below).
This problematic articulation of the different rules of the ICC legal framework is often due to a pick-and-choose mixture of common law and civil law systems. Both of them have their own logic. But when you take two conflicting rules from each system (in our case prosecutorial discretion, and judge-led trials) without thinking through how to articulate them, you will necessarily be faced with problematic decisions as this one.

Which brings me back to the more general policy considerations.
The first one is one of efficiency. Whatever one thinks of the decision, there is no denying that the use of this procedure will considerably lenghten a trial which has already been going on for far too long.
Secondly, this is not a suprising decision in light of the ongoing struggle between OTP and Chambers since the inception of the Court on who is in charge. This went on at the pre-trial phase, in relation to investigations, participation of victims, qualification of charges, and is obviously continuing in the trial phase.
Third of all, it shows the continuing, increasing and in my opinion problematic influence of victim participation in the proceedings. They had criticised (together with powerful NGOs) the fact that Lubanga was only charged with enlisting of Child Soldiers. And I had partly agreed with this criticism. But it is one thing to critisize and disagree with prosecutorial choices, it is another to actually allow the victims a procedural right to contest (or even change) the charges during the trial. As Kevin Heller points out, "that ship had sailed", and the trial itself is not necessarily the moment to come back on it.
Finally, related to this issue of victims' rights, i can't help but notice that once again the impetus in giving the victims more power comes from latin-american judges (Odio Benito, from Costa-Rica, and Blattman, from Bolivia), just as the first progressive decisions on victim participation had involved Judge Steiner from Brazil. This is not suprising, given the influence of the inter-american system in the development of victims' rights, through the recognition of an army of rights that have then be exported as unchallenged gospel in the realm of international criminal law, despite the sometimes flimsy legal justification of some of these rights (like the fabled right to truth) that blurs to the point of extinction the distinction between law and morals.

But lets keep this debate for another time...

Thursday, April 23, 2009

Defamation of religions in a Brave new World...

As the Durban II Review conference on Racism comes to an end, I would like to come back to one aspect of my previous entry: the defamation of religions as an act of racism. It appears from the draft outcome document that it has not been adopted in Geneva.

The Human Rights Council, however, adopted a resolution at the end of March on the theme of "Combating Defamation of Religion". In that document, Defamation of religion is presented as a component of incitement to religious hatred. It therefore "Underscores the need to combat defamation of religions and incitement to religious hatred in general". It justified the limitations of freedom of expression that would ensue, by saying that it is protecting Human Dignity and freedom of religion, thus putting us in front of a classic Human Rights balancing test: "Stressing that defamation of religions is a serious affront to human dignity leading to a restriction on the freedom of religion of their adherents and incitement to religious hatred and violence".

This is not a new issue, and painfully became of global concern when the caricatures of Mohammed were published in a Danish newspaper and in several other countries. The debate back then also focused on the freedom of expression Vs Freedom of religion/Human Dignity.

But the whole logic of this HRC resolution and of this debate in general is flawed at various levels.
First of all, it is wrong to balance Freedom of Expression and Freedom of of Religion here. Nobody is preventing anybody from practicing their religion. Expressing the view that such and such religious practice is to my dislike (whether the stoning of adulteress women, the fact that homosexuals should burn in hell, that women are treated as mere breeders, that I cannot smoke on saturdays, drink when I want, or have sex before marriage (!!!)) is of no relevance to whether the people who do believe in those practices can do so freely or not.
Second of all, since when do "religion" have rights? what does "defamation of religion" mean exactly? Who is this "Religion" who is going to go to court and sue me for having defamed his name? Maybe this a one more example of this trend of "collective" human rights that seems to be gaining ground in the past few years, like the "right to developement"...
Third of all, and more generally, we must not give in to the general trend of politically correct limitations to our freedom of expression. Under the umbrella of "Human Dignity", pressure groups are trying to prevent any kind of comment that might be vaguely offensive. Comedians cannot open their mouth without someone making a formal complaint. Let me make things clear here. That people are unhappy with something being said and express it is perfectly ok. What I have a problem with is that we call for a legal and more specifically criminal response to offensive remarks. Because that is what we are talking about most of the time. It has nothing to do with "human dignity". It has to do with being offended and, following this logic, why should "only" the people who call you a "nigger", a "raghead", or a "spick" be prosecuted? I should also be sued because I tell you that you are fat, or ugly, or short... Moreover, it leaves no room for irony, sarcasm, or second degree humour. what a sad and brave new world that is...
On a more philosophical level, any thought, philosophy or ideology that cannot accept contradiction is structurally defective. Moreover, I am not defined by the opinion others have of me. Why should I care what an antisemite thinks of me? It says more about him than about me. If we put all stupid people in jail, it would make finding a free stretch of sand on the beach in the summer easier (although I only go to the beach if it's free...).

Finally, on a more subtantive level, and without taking sides, this general debate should not cloud the fact that certain religious practices are contrary to internationally recognised human rights. Religious leaders can spin it as much as they want, they can't have their cake and eat it: sometimes strict religious practice is just plain incompatible with respect of human rights. What should be done about this is another issue, but the elephant in the the living room can't be ignored forever, under the pretence that there isn't enough light to see it...

PS: Someone pointed out to me that the speech in Geneva by Ahmadinejad was not only on the birthday of Hitler, but also on remembrance day of the Shoah in Israel... you have to love the timing...

Monday, April 20, 2009

The Geneva Show on (anti-)Racism

Once upon a time... on the birthday of Hitler (oh, the irony...)...

It was written like a crafty Hollywood script... Enter the Iranian president, under the applause of part of the room. The speech starts. Cue unplanned protesters wearing a clown's attire and who threw a red nose on stage (probably all participants had been asked to take off their shoes to avoid any assault on the speakers...). A few shouts later, they are dragged away by the security team of the conference. And then, to the utmost suprise of the audience, Ahmadinejad starts ranting about the immigrants sent by Europe to create a racist State in the Middle East. Faced with this unforeseen speach from a usually so moderate world leader, some representatives, mostly from European countries, recovered fast from the suprise and improvised a courageous walkout to show their opposition. Following this, despite the short notice, all these countries manage to issue in a suprinsingly coordinated way strong press releases condeming this attack on Israel... The UN expresses dismay at the Iranian president's outbreak. This is a perfect storyline, full of unexpected drama and...

oh come on! Who are we kidding? This whole joke was as predictable as an episode of Mission Impossible (did anybody ever really believe that they might not save the day?). Everybody wins from this theatrically staged farce in Geneva for the second conference against Racism, after the one organised in Durban in 2001.
It was obvious that the bearded leader of Iran would say something that could create outrage. But a walkout looks so much better on TV than not showing up at all. Like that, the Europeans can show their voters, sorry, citizens, their strong rejection of racism. Ahmadinejad also wins, by looking like a courageous martyr who has the balls to stand up to the Western-capitalist-zionist-freemason-aliens-from-outer-space conspiracy.

The Durban Conference in 2001, despite its good intentions, was hijacked by those wanting to single out Israel as a racist State. Very few countries actually reacted when at the time some "NGOs" distributed anti-semitic material. Only the USA and Israel left the conference back then. And even if the final declaration was mild in its language, most of the debates were focusing on Israel. As for the "Durban II" conference, the signs were not good. A document circulating some weeks before the start of the event, drafted by the Preparatory Commission, headed by Libya with an Iranian Vice-President, contained strong language against Israel and called for the "criticism of religions" to be included as Racism, basically preventing blasphemy. And what did this lead to? How did most countries respond to that? Some States actually decided to boycott the conference (USA, Israel, but also Italy, the Netherlands and Germany). But most apparently learned from the previous event... that they had to have better communication!

Which brings us back to today. The only lesson to draw from this is that it is an artful operation in political PR. All the participants might not agree on the content. But they can all meet up in the dressing room afterwards and congratulate each other on the success of the performance, and get ready for the next show...

... or go back to hone their skills at the permanent rehearsal stage for this type of mascarade that is the UN Human Rights Council... but let's keep this for another time, shall we?