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Sunday, March 27, 2011


As you might have gathered from the shiny new box on the left, I have joined the twitter community. You can follow me on @dovjacobs, for updates on the blog, current issues of international law and comments on various topics.

Saturday, March 26, 2011

Garzon goes to the ECHR...

... as a plaintiff, not as a judge. According to this press release from Interights, Balthazar Garzon has filed a complaint before the European Court of Human Rights challenging his prosecution in Spain for having opened an investigation in 2006 into events having taken place during the Franco era, despite the existence of an amnesty law.

Readers of this blog (here, here and here) will know that I did not join Garzon's fan club when these events unfolded last spring. I was puzzled at how little consideration was given to the Spanish legal system, and ultimately, I believe that Garzon has ambitions that far exceed the constraints of his function in Spain and should consider a career in an international court, such as the ICC.

So what is the basis for this complaint. Here is a relevant portion from the press release:
Judge Garzón’s case represents a threat to the independence of judges and to their role in ensuring accountability for alleged widespread and systematic crimes. In his case Judge Garzón alleges that the criminal case against him in Spain violates several of that country’s obligations under the European Convention on Human Rights. These include the obligation to protect judicial independence generally, including protecting judges from unfounded criminal prosecutions as exemplified by this case. Specifically, the prosecution of Judge Garzón violates the duty not to subject individuals to an inherently unfair criminal process, to only prosecute on the basis of clear criminal law, strictly applied, to respect private life and professional development and the right of judges to reasoned judicial decisions in the exercise of judicial functions.
Just a few brief comments.

First of all, I'm not even sure the case is admissible. Indeed, "the Court may only deal with the
matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken" (Article 35, EConvHR). His case has not started, and therefore Garzon has not exhausted all local remedies, especially given the fact that there is no certainty that he will indeed be found guilty. Of course, Garzon could claim undue delay in the prosecution itself, given that after a year, the trial has not started, but that is not what Interights seems to be arguing.

Second of all, there seems to be a confusion about what the ECHR does. Of course, its ultimate ambition and goal is to promote the rule of law, which does include an independent judiciary, but it is not an institutional supervision body, it does so through the violation of specific human rights of specific individuals. It is NOT an institutional rule of law supervision body. And more importantly, Human Rights Law was always primaril (although arguably that is changing) aimed at protecting individuals against the State, not the State against the State.
How does this apply to the present case? Well, the "obligation to protect judicial independence" is not specific enough to warrant a complaint. What is exactly the right being violated in the particular instance? The Press Release is ambiguous on that, but seems to be claiming the general interest of ensuring accountability for human rights violations. If that is the case, then I believe Garzon doesn't have standing before the ECHR, as he is not directly affected in that respect. It would be for the victims of the crimes to claim that they have not received an effective remedy due to the amnesty law and the decision not to pursue the investigation, which, as far I can tell, they haven't done (ironically, I did find a case where plaintiffs complained before the court that they had not benefited from the amnesty law, without raising an eyebrow among the judges...). In relation to this, I'm wondering if this complaint is not only unfounded legally on this point, but also disingenuous in its presentation. Indeed, according to Interight:
 The potential chilling effect on other judges when they come to determine legally or politically controversial cases is obvious, and a serious threat to judicial independence and the rule of law.
But that would only be true if the current prosecution was actually the cause for the interruption of the investigation. However, it was not! Indeed, it appears that in 2008, Garzon went to a confirming judge with his opinion about the amnesty law, who told him that he should discontinue the investigation, which he did. So the threat of prosecution is irrelevant to the fact that he followed orders in 2008. (Incidentally, that makes me agree with one point of the complaint: Garzon seems to have followed the rules. Whatever his opinion of the amnesty law and its applicability, he stopped the investigation when told to do so. That seems to be the normal functioning of a legal system, and I'm not quite sure why he should be prosecuted now)

Third of all, and as an aside, I find quite ironic the claim that a prosecution should be on the basis of "clear criminal law", when human rights activists are usually quite happy to have individuals prosecuted for international crimes that are sometimes ill-defined in elusive customary law, where defendants are expected to know that there is enough state practice (i.e, that he's taken the time to read the criminal codes of a number of foreign countries) for a particular provision of an international convention has attained the status of custom (see Kononov at the ECHR for an example of that).

All in all, this complaint once again illustrates the style of Judge Garzon, who just cannot prevent himself from showing his grand ambitions in terms of human rights policy, irrespective of the specific legal setting he might be operating in. His current ECHR stint is at best premature, and at worst frivolous, whatever one thinks of the Spanish Amnesty law.

Wednesday, March 16, 2011

Follow-up on French Karadzic Decision

In support of my argumentation on the role of the interaction between French civil courts and the ICTY, and the suggested idea that French civil courts should suspend their decision under a verdict is achieved, I have come across rule 106 of the ICTY RPE on the compensation for victims:

(A) The Registrar shall transmit to the competent authorities of the States concerned the judgement finding the accused guilty  of a crime which has caused injury to a victim.
(B) Pursuant to the relevant national legislation, a victim or persons claiming through the victim may bring an action in a national court or other competent body to obtain compensation.
(C) For the purposes of a claim made under paragraph (B) the judgement of the Tribunal shall be final and binding as to the criminal responsibility of the convicted person for such injury.
This Rule, particularly paragraph (C) supports the claim that there is a functional link between the ICTY and national courts, not merely a factual one. One could of course wonder whether the judges in the RPE, in the absence of any explicit statutory provision on compensation for victims, or the effect of ICTY judgments in national legal orders, can actually be deemed to have adopted this rule ultra vires. However, the Rule indirectly finds support in the non bis in idem provision of the Statute (article 10), which provides that

No person shall be tried before a national court for acts constituting serious violations of international humanitarian law under the present Statute, for which he or she has already been tried by the International Tribunal. 

One can therefore argue, as I did in my previous post, that, to the extent that ICTY judgments are deemed to have a clear legal effect in national systems, i.e, be just as binding as a national criminal judgment would be, ongoing international criminal proceedings can have the corresponding same effect than national criminal proceedings, i.e. suspend civil proceedings until the conclusion of the trial, especially given the impossibility of concurrent French criminal proceedings.

This certainly raises interesting questions on the interactions between legal orders, the international and the national one, and more importantly the porosity between the two. Any comments are as usual welcome.

[UPDATE: One member of Karadzic's legal team has reacted (unsurprisingly) to reject the French decision. He considers that the decision is "illegal" because, just to cover all angles, 1) there is no guilty verdict by the ICTY, 2) anyway there is no link between what he is tried for and what  the facts considered by the French Court and 3) that the Court has no jurisdiction to decide whether a defendant is guilty of war crimes. I hope he is more efficient in his defense of Karadzic because his reasoning is notably unconvincing. Indeed, if there is no link between what the Paris court ruled upon and the charges at the ICTY, then there is actually no obstacle for the French Court to independently rule on the facts before it. Moreover, there is a double inaccuracy in his third point: a) of course a French Court has material competence over war crimes, from its own criminal code, especially as there is a clear personal link with the nationality of the victims and b) in any case, it is a civil decision, so technically Karadzic was not found guilty of war crimes.
In any case, the question of the link between the two procedures is interesting. Indeed, my reasoning is based in the assumption that there is such a link between the harm the plaintiffs claimed in France and ICTY charges. This assumption is based on the apparently explicit referral to ICTY proceedings by the French tribunal. But if in fact, there is no link, then my argument, of course does not hold. I'm still trying to get hold of the decision to verify this.]

Monday, March 14, 2011

French civil Court orders Karadzic to compensate Bosnian Family

According to an AFP report, the Tribunal de Grande Instance of Paris has ordered Radovan Karadzic and Biljana Plavsic to pay 200 thousand euro in compensation to a Bosnian family living in France since the war. The Court found itself incompetent to consider the case against Krajisnic (the report does not say why) and requested additional information against Mladic.

In relation to Plavsic, the Court apparently relied on her conviction for crimes against humanity by the ICTY to find that she had committed faults in relation to the plaintiffs' damage. One should recall that at the time, that case had created quite a stir because she had plea bargained her way to getting the genocide charges dropped.

As for Karadzic, whose trial is still ongoing, the Court found that (rough translation from the AFP report): "the simple fact that no definitive conviction has been reached cannot justify the status quo, which would necessarily create unjustified additional delays for the victims. The judges referred to the right of a victim of  manifest human rights violations to an adequate, useful and swift recourse".

I'll be careful of drawing too many conclusions from a news report (journalists are not necessarily known for their adequate reporting of legal news), but just a few thoughts.

First of all, I'm not aware of any such decisions before, of a civil claim against a current ICTY indictee (if my readers have any information on this...).

[UPDATE: Apparently Karadzic was also the object of civil proceedings in the United States in 2000, while still a fugitive and ordered by a jury to pay compensation. The article raises the question of whether the Republika Srpska could be held liable to pay the reparations, given that Karadzic himself most likely does not have sufficient funds. Also, French courts are definitely less favourable to plaintiffs: the 200.000 euro awarded in Paris seems like chump change compared to the 4,7 billion dollars awarded in the US...]

Second of all, I'm a little puzzled by the procedure. The Court's affirmation that the absence of a criminal conviction is no reason not to go forward is in that respect interesting. For one, from the point of view of French law, there is, if I recall correctly a principle that "le pénal tient le civil en état", which translates roughly as "criminal proceedings hold civil proceedings still". This basically means that when both criminal proceedings and civil proceedings are ongoing, the civil court must wait for the criminal court to decide. Of course, there are not formal criminal proceedings going on in France, so you could say that the rule does not apply. However, the primacy of the ICTY over national jurisdictions actually bars any criminal proceedings for the same crimes in France, so in a way, Karadzic, being tried under a Chapter VII mandate by the ICTY in tried in the name of France. It seems like a convenient way to skirt around the primacy rule, to initiate civil proceedings when criminal ones are not possible.

Finally, I'm struck by the finding of the Court that "manifest" human rights violations require a particularly swift remedy. I was unaware that "human rights" had a different role in French tort law, or in tort law in general (nor what the qualifier "manifest" means for that matter). Why should human rights victims get better recourse than any other plaintiff before a civil Court? This is once again the sign of the way Human Rights has taken over so many branches of law and where moral considerations take over legal reasoning. But that is, I suppose, a different issue...

I'll try and get hold of the decision and keep you posted if there is anything interesting in it.

Tuesday, March 8, 2011

On A French Constitutional Irony

I don't usually blog about French news, but I had to share the irony of what is going on in the current trial of former President Jacques Chirac. As you might not know, he is on trial for having given fake jobs, paid by the Paris municipality, to people who were actually working for his Party, the RPR (which is now the UMP, the party of current President Nicolas Sarkozy).

This situation had already given rise, 10 years ago, to an interesting discussion on the immunity of an acting head of State, which had been affirmed at the time. The immunity fell when Chirac left power, and the investigation led to the trial which started this week.

On the first day of the trial, the lawyer for one of the other plaintiffs raised a constitutional challenge against the statute of limitations for this kind of crime, which starts running, according to the case-law of the Cour de Cassation, on the day they are discovered, not on the day they are committed.
Such a constitutional challenge is possible since a recent reform of the procedure in France. Before that, laws could be sent to the Constitutional Court before their promulgation, but they were untouchable after that. Now, anybody can raise a challenge in a lower court, and, if the question seems to be well grounded, the proceedings are suspended until the Constitutional Court. It is this procedure which allowed the Court to declare the current system of preventive police incarceration to be unconstitutional.

And now for the irony. The Constitutional Court was set up in the French Constitution of 1958, under the influence of both De Gaulle, and his minister, Michel Debré. And it just happens that De Gaulle's grandson and Debré's son are plaintiffs in the current case. More strikingly, the Court is currently presided by Jean Louis Debré, the brother of the plaintiff, and Jacques Chirac, as a former president, actually sits on the Court...
Although there is apparently a procedure to remove a member of the Court in a particular case, this example more generally shows that the reform put in place was not thought through. Indeed, with the Court essentially involved in the pre-promulgation phase, it wasn't so much of a problem that it had such a political composition. However, now that it has such a strong judicial function, its composition should be changed. If the function changes, so does the institution. The current French Conseil Constitutionnel is a vestige from the past, and must be reformed to face the new legal reality.

Wednesday, March 2, 2011

A short Comment on Libya, Hypocrisy and Selective Outrage

I am usually not a big fan of "double-standard" discussions, which are usually the source of endless "why here and not there" debates, which are often ultimately excuses either for inaction or for diminishing the importance of a specific action. But I must admit the current situation (pun intended, see previous post) in Libya does lend itself pretty well to this type of analysis.

For one, the referral by the UN Security Council (extensively discussed from a legal perspective here), begs the question of when a situation rises to the point of justifying a referral. William Schabas raised this point in his own comments:

But if the Security Council will move in this way given reports of devastating attacks on civilians, why did it not move in the same way the last time there were such attacks in the same region? I'm referring to Gaza and operation Cast Lead which took place only two years ago, and only hundreds of kilometres away from where Gaddafi is currently massacring his own people.
 Although I do not share the typical demagogic singling out of Israel (to stay in line with this post, why mention that situation, rather than an other?), it is a valid question generally. There are a number of situations since the entry into force of the Rome Statute which might have warranted referrals, not just Gaza, but also Ivory Coast, or Sri Lanka, for example. Usually the answer to this is that whoever asks the question is being naive and that it's a question of politics. Maybe. But it doesn't mean that the question shouldn't be asked. In relation to this, and linked to the debate I was having in the comments section of my previous post, I believe that given the extensive power given to the Security Council under Chapter VII, 1) that chapter should be redrafted to provide for clearer safeguards and guidelines on its use, and 2) the UNSC should be reformed to avoid its overtly political use by the veto-wielding powers. I know that is being naive too, but there is no harm in being a dreamer once in a while...

Second of all, the UN General Assembly has voted to suspend Libya from the Human Rights Council. Of course, one can wonder with the International law Prof Blog, why it got elected there in the first place. And it becomes even more laughable when you actually read the composition of the Council. It is presided by Thailand, with its spotless human rights record. Cuba, a paragon of democracy, provides a vice-president, so does Slovakia, a country which has not be singled out by UN Bodies and the Council of Europe for practicing forced sterilization on Roma women. Other members include such such human rights safe-havens as Russia, Saudi Arabia, China and Pakistan. Past members included Algeria, Egypt, Tunisia and Sri Lanka. The members of the defunct Commission on Human Rights all had equally good track records in terms of Human Rights. So the singling out of Libya for a suspension makes perfect sense.

I am not saying that identifying this hypocrisy would justify in any way not reacting to what is happening in Libya. in simple terms, it's not unfair to get caught, just because others haven't. But one must take a step back and reflect on the reasons why a cause gets a spotlight at a given moment, and others do not. Actors on the international scene "choose" a topic and it suddenly enters the zeitgeist. There is a complex sociological web of political actors, NGOs, media outlets which frame priorities and frame minds to look in a certain direction and not another, as the over-emphasis on Darfur and its "genocide debate" or on Israel and anything it does, shows. Not to sound cynical or anything, but some causes sell when others don't. And this applies to NGOs as well, which, in the darker corners of the castles where they put away their shining armors when the night comes, discuss humanitarian markets and compete for them for donations and exposure, in order to sell their own causes as others would sell used cars. But that is maybe a little too cynical, and I'm, once again, straying off topic.