On the Use of Criminal Law Notions in Determining State Responsibility for Genocide

On the face of it the 1948 Convention on Genocide appears tobe a treaty that on the one hand obliges contracting statesto criminalize and punish genocide in their domestic legal systemsand, on the other, arranges for interstate judicial cooperationfor the repression of genocide. The International Court of Justice(ICJ), in the Bosnia v. Serbia judgment, has instead held thatthe Convention, in addition to providing for the criminal liabilityof individuals, also imposes on contracting states as internationalsubjects a set of obligations (to refrain from engaging in genocide,to prevent and punish the crime, and also to refrain for allthose categories of conduct enumerated in Article III: conspiracy,incitement, attempt, complicity). This approach raises two questions:(i) is it warranted so to broaden states' responsibility? (ii)when applying such Article III categories to state responsibility,should an international court such as the ICJ that pronounceson interstate disputes rely upon criminal law categories toestablish whether a state incurs responsibility for conspiracy,complicity, and so on? Or should it instead forge autonomouslegal categories better suited to state responsibility? Theauthor sets forth doubts about whether it is appropriate totranspose criminal law categories to the corpus of internationallaw of state responsibility. In particular, his misgivings relateto the category of ‘state complicity in genocide’as set out by the Court: once the Court decided to transplantthis criminal law category to state responsibility, arguablyit should have relied upon the rigorous concept of complicity,as derived by international criminal courts from case law andthe relevant practice of states, rather than apply a notionthat finds no basis in international criminal law, in comparativecriminal law or in state practice.     

Genocide, Complicity in Genocide and International v. Domestic Jurisdiction: Reflections on the van Anraat Case

When adjudicating international crimes, domestic courts arefaced with a choice between the application of internationallaw or national law. In the recent van Anraat judgment, a DutchDistrict Court explicitly opted for the former alternative.This approach led to the accused's acquittal of complicity ingenocide. In the Court's opinion, there was no proof beyonda reasonable doubt that van Anraat had actual knowledge of SaddamHussein's special intent to destroy part of the Kurdish population.According to the Court, such proof is required under internationallaw. This article argues that the Court's preference for internationallaw was not prescribed, either by international law or by domesticlaw, although in principle such preference may prove advisable,whenever international rules are clear and exhaustive. Aftertracing the intricate legal discussions on mens rea requirementsfor genocide and complicity in genocide, the author concludesthat the issue has not yet been completely elucidated in internationalcase law and legal literature. In situations of ambiguity whereinternational case law offers insufficient guidance, domesticcourts would better resort to their own criminal law. As Dutchcriminal law extends the mens rea of the accomplice beyond ‘knowledge’so as to cover dolus eventualis as well, application of domesticlaw might have affected the outcome of the case.     

Divergent Approaches to Determining Responsibility for Genocide: The Darfur Commission of Inquiry and the ICJ's Judgment in the Genocide Case

Internationally sanctioned assessments of genocide are relativelyuncommon, and since genocide is usually assessed in the contextof an individual's criminal prosecution, assessments of stateresponsibility for genocide are even rarer. Yet two such analyseshave recently been completed: the International Commission ofInquiry on Darfur's Report and the International Court of Justice'sJudgment on genocide in Bosnia. On a key issue, the methodologyfor determining whether a state is responsible for genocide,they diverged. Whereas the Darfur Commission determined whetherthe ‘central government’ of Sudan pursued a statepolicy or plan for genocide in Darfur, the ICJ stressed thata state commits genocide through the acts of its officials,holding that if a state organ or a person or group whose actsare legally attributable to the state, engages in genocide,then the international responsibility of that state is incurred.This article critically examines the different methodologicalapproaches taken by these two bodies in light of internationaljurisprudence. It argues that the Darfur Commission erred infocusing its genocide inquiry on whether high-level officialsin Sudan's government possessed genocidal intent, rather thanon the perpetrators of the underlying criminal acts. In addition,it argues that, whether the Commission's goal was to determinestate responsibility or individual criminal responsibility,its approach was at variance with international law as elucidatedin the UN ad hoc tribunals and as subsequently confirmed bythe ICJ in the Genocide Case. In that regard, the ICJ Judgmentreestablishes two sound methodological principles: the existenceof a state plan or policy, although probative of intent, isnot an implicit element of genocide; and determining state intent(however that may be defined) is not a part of determining stateresponsibility for genocide.     

Reparation in Cases of Genocide

In the judgement delivered in Bosnia and Herzegovina v. Serbia,the International Court of Justice (ICJ) found that Serbia,with regard to the acts of genocide committed in Srebrenica,had breached the obligation, as set out in Article I of the1948 Genocide Convention, to prevent genocide. However, it alsofound that Bosnia and Herzegovina had no right to monetary compensationand that the mere declaration of Serbia's responsibility fornot preventing the genocide in Srebrenica was in itself appropriatesatisfaction. This article criticizes the decision of the ICJnot to accord monetary compensation, which was based on thelack of a causal nexus between the failure by Serbia to complywith its obligation to prevent genocide and the death of 7000men in Srebrenica. It argues that the Court should have shiftedthe burden of proof and should have required Serbia to showthat even if the institutions of the then Federal Republic ofYugoslavia (FRY) had taken appropriate measures, the BosnianSerbs would nonetheless have completed their criminal plans.Concerning the issue of satisfaction, the article notes thatthe ICJ could have ordered symbolic monetary damages, by takinginto account international practice and the request by the Applicant.In addition, it observes that international tribunals enjoya large measure of discretion in awarding satisfaction and that,in making a determination on the most appropriate form of satisfactionthe genocidal tragedy itself should not have been left aside.In this connection, the ICJ could have found guidance in thecase law of the European Court of Human Rights, which in someinstances has taken into account the degree of pain and sufferingendured by the victims. Finally, with regard to guarantees andassurances of non-repetition, the article notes that these donot constitute a form of reparation, but rather should be consideredas an expression of the obligation to comply with the primaryrule incumbent upon a state in particular situations. The articleagrees with the Court's conclusion that an assessment of theprevailing situation in Bosnia and Herzegovina did not provideany clues to the presence of an actual threat to the physicalintegrity of the Muslim population. However, it contends thatthe reluctance by Serbia to arrest and transfer to the ICTYGeneral Mladi, more than three months after the delivery ofthe judgment of the ICJ and the issuance of a specific orderin this regard, unequivocally demonstrates the strong ties ofsolidarity between the Serbian leadership in Serbia and in theRepublika Srpska. Serbia is making itself an ex post accompliceof genocide, with far-reaching consequences for its envisagedintegration into the European Union.     

A generalization of the obligation to prevent: From genocide convention to racial discrimination convention

The decision of the International Court of Justice in the case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”) highlights states’ obligations under the Convention, especially the obligation to prevent. When it comes to the case concerning the International Convention on Elimination of All Forms of Racial Discrimination (“Racial Discrimination Convention”), the decision of the Court indicating provisional measures seemingly purported to generalize its jurisprudence in the Genocide Case. By elaborating this kind of new jurisprudence, the Court echoed to the responsibility to protect, as well as to Article 48 and Article 54 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (“Draft Articles of State Responsibility”). It appears that each State Party should have an obligation to intervene in the coming genocide incidence, perhaps as well as in the coming racial discrimination cases. Nevertheless it is unclear in what manner a state could implement it effectively.     

The Supreme Court of Canada and the Right to Bargain Collectively: The Implications of the Health Services and Support case in Canada and Beyond

In June 2007, the Supreme Court of Canada expressly overruled20 years of jurisprudence that interpreted the freedom of associationas excluding collective bargaining. This about-face by the SupremeCourt was unexpected. What gave rise to this remarkable decisionand what does it portend for the role of the courts in labourrelations in Canada and beyond? The recent successes beforecourts have led some observers to suggest that it may now bea propitious time for a coordinated and proactive litigationstrategy to vindicate labour's collective rights. This articleoffers some preliminary answers to these broader questions andissues by focussing on the Supreme Court's decision in the HealthServices and Support case.     

Dutch Courts' Universal Jurisdiction over Violations of Common Article 3 qua War Crimes

On 14 October 2005, The Hague District Court sentenced two Afghanasylum seekers for their role and participation in the tortureof civilians during the Afghan War of 1978–1992. The Courtheld in both cases that it had ‘universal jurisdiction’over violations of Common Article 3 of the Geneva Conventionsand that the accused were guilty of ‘torment’ (‘foltering’)and torture as a war crime (‘marteling’). The jurisdictionalbasis relied upon by the Court and the Court's legal reasoningin both cases is open to criticism.     

Betrayal of confidence in the Court of Appeal

In overturning Latham J's judgment in R v Department of Health, Ex Parte Source Informatics Ltd. that anonymisation does not obviate breaching a personal confidence, the Court of Appeal holds that where the duty of confidence arises in equity it does not prohibit the confidant using the confided information without the consent of the confider if this does not treat the confider unfairly (relative to the Court's view of the confider's legitimate interests). We argue that this principle--by bringing fairness to bear on the scope of the duty of confidence rather than on whether a breach of it may be lawful--has no authority in usable precedents; that the Court's interpretation of fairness in applying this principle is, in any event, incompatible with the Data Protection Act 1998 (in part because the Court has too narrow a conception of privacy); that the Court errs in holding that neither anonymisation of personal data nor use of anonymous data falls under the Data Protection Act; and that the Court's insensitivity to the vulnerability that leads patients to disclose information about themselves to health professionals for their treatment, leads it to misidentify the basis of the duty of confidence in such disclosures. The Court of Appeal's reasoning does not clarify the duty of confidence, but virtually abolishes it in the face of competing commercial and research interests.     

Great Expectations: The Implementation of the Rome Statute in Italy

This article first explores whether Italy is under an obligationto implement the Rome Statute that it ratified in 1999. It thenidentifies the general sets of inconsistencies between Italianlegislation and the Rome Statute and analyses whether and towhat extent the former needs to be amended or integrated inorder to implement the substantive provisions of the latter,in particular in relation to the definition of crimes, generalprinciples of criminal responsibility, defences and other barsto prosecution. Finally, the exercise of jurisdiction by Italiancourts over crimes in the Rome Statute is discussed in the lightof the principle of complementarity on which the jurisdictionof the International Criminal Court is based.         Mere dreams,mere dreams!         W.B. Yeats,Meditations in Time of Civil War, I (1928)     

Shifting Conceptions of Sexual Discrimination at the Court of Justice: from P v S to Grant v SWT

Decisions of the Court of Justice have challenged traditional notions of sexual discrimination. In P v S and Cornwall County Council, the Court held that discrimination against transsexuals was contrary to the 1976 Equal Treatment Directive. However, in Grant v South‐West Trains, the Court rejected arguments that Article 119 on equal pay prohibited discrimination on the basis of sexual orientation. This article contrasts the two decisions, and in particular focuses on the inconsistencies in the Court's definition of what constitutes sexual discrimination. The article further considers the underlying factors which may have influenced the Court's judgment, including the moral dimension and the political context of the two decisions. Finally, there is a discussion of the merits of equality litigation strategies, in particular at the Court of Justice.     

The Tarasoff dilemma in criminal court.

The duty to protect, or Tarasoff duty, has been conceptualized as arising solely in the context of a clinical setting. A recent California Supreme Court ruling in People v. Clark adds legal, clinical, and ethical dilemmas to the oftentimes contentious Tarasoff issue. Though the Tarasoff issue is but a minor legal point in Clark, a possible consequence of Clark is that a Tarasoff warning could be deemed nonconfidential and admissible in a criminal trial. Psychotherapists could therefore be testifying in criminal courts as prosecution witnesses. While the possibility of a chilling effect on patients' disclosure of violent ideation in the context of psychotherapy first caused apprehension after the California Supreme Court's 1976 decision in Tarasoff v. Regents of the University of California, this same Court's ruling in People v. Clark some 14 years later may ensure that this fear finally becomes realized.     

Evidentiary Issues in the ICJ's Genocide Judgment

Despite the commitment by the International Court of Justice(ICJ or the Court) in clarifying underlying methods and guidelinesof its approach to fact-finding and evidence, it can be doubtedwhether the judgment delivered in the Bosnia and Herzegovinav. Serbia case genuinely marked a decisive step towards a moretransparent and reliable methodology for evidentiary matters.Behind the formula of ‘fully conclusive evidence’,when dealing with Articles II and III of the Genocide Conventionthe Court adopted for all practical purposes a typical criminallaw ‘beyond any reasonable doubt’ standard of proof.By this choice the Court upheld in substance the argument putforward by Serbia that even if the questions of state responsibilityfor acts of genocide are not excluded by the scope of the Convention,they must nevertheless be judged by the same parameters of individualcriminal responsibility. In reaching its conclusions the Courtrelied heavily on the jurisprudence of the ICTY, both as regardsthe ascertainment of facts and their legal qualification. Itremains to be seen whether in future cases the Court will beable to adopt a similar criminal court posture, and whetherit will be similarly prepared to rely on the findings of otherinternational tribunals such as the International Criminal Court,which is not established by the Security Council.     

Light Treatment of a Complex Problem: The Law of Self-Defence in the Wall Case

In its recent Wall Opinion, the International Court of Justicegave rather short shrift to Israel’s claims that the constructionof the wall could be justified as an act of self-defence inthe sense of Article 51 United Nations Charter. This articleassesses the Court’s approach and places it in the broadercontext of ICJ pronouncements on the use of force. It suggeststhat the Court failed to appreciate the complex legal problemsto which Israel’s claim gave rise, in particular the problemof self-defence against attacks by non-state actors. It showsthat the Court’s restrictive understanding of self-defence,while following the 1986 merits judgment in the Nicaragua case,is difficult to bring in line with modern state practice, andincreases the pressure to admit other, non-written, exceptionsto Article 2(4) of the UN Charter.     

Regarding/Disregarding: The Judicial Rhetoric of President Barak and the International Court of Justice's Wall Advisory Opinion

In Mara'abe v. Prime Minister of Israel (September 2005), Israel'sHigh Court addressed the effect which it should give to theInternational Court's Legal consequences of the constructionof a wall in Occupied Palestinian Territory advisory opinion.This had declared the wall illegal but, while affirming thatit shared the International Court of Justice's normative rulings,the High Court reiterated that it thought the wall a lawfulsecurity measure. Rather than dissect the substantive treatmentof the issues involved, this article examines the structureand rhetorical techniques employed by President Barak in hisleading judgment in Mara'abe. He effected a skilful practicaldisregard of the International Court's normative findings throughan elision of argument by relying on the doctrine of res judicata—aconcept that has no relevance whatsoever to advisory opinions.     

The Jean Mpambara Case: Outlining "Culpable Omissions" in International Criminal Law

The Trial Chamber of the International Criminal Tribunal forRwanda, through its judgment in Jean Mpambara case, outlinedthe significance of culpable omissions, outlining three broadoffences under which it could be used as evidence. While itis clear that an omission may be considered as evidence of aidingand abetting or joint criminal enterprise, it is still not clearwhether omission of failure of duty to prevent or punish willbe considered as part of Article 6(1) of the statute as doneby the other trial chambers,¹     

NEXT STEPS IN THE EVOLUTION OF ANTITRUST LAW: WHAT TO EXPECT FROM THE ROBERTS COURT

Under the leadership of Chief Justice John G. Roberts, Jr.,the Supreme Court has demonstrated a willingness to cast asidethe Court's prior antitrust decisions. The qualified per serule applicable to tying surely will not survive much longer,but what else might be in store is more speculative. This essayidentifies four decisions relating to competitor collaborationin which the Court's prior application of the per se rule doesnot comport with its modern decisions. In two of the cases,the conduct likely would be found lawful today; while in theother two, the conduct most likely still would be condemnedbut only after an abbreviated application of the rule of reason.This essay also identifies three legal doctrines ready for retirement.They are the absolute requirement of market delineation as apredicate for merger analysis, the outmoded approach to marketdelineation of Brown Shoe, and the unhelpful formulation ofthe monopolization offense in Grinnell.     

The Mengistu Genocide Trial in Ethiopia

This article analyses the sentencing judgment issued on 11 January2007 by the Ethiopian Federal High Court in the case of MengistuHailemariam and his co-accused who had been tried, among others,on charges of genocide and crimes against humanity. This wasthe first African trial where an entire regime was brought tojustice before a national court for atrocities committed whilein power. Twenty-five of the 55 accused found guilty, includingMengistu, were tried in absentia (Mengistu remains in exilein Zimbabwe). The trial took 12 years, making it one of thelongest ever trials for genocide. In December 2006, Mengistuwas convicted by majority vote of genocide and crimes againsthumanity pursuant to Article 281 of the 1957 Ethiopian PenalCode, which includes ‘political groups’ among thegroups protected against genocide. A dissenting judge took theposition that the accused should have been convicted of aggravatedhomicide because the relevant part of the provision had beenrepealed. A few weeks later, the Court, by majority, sentencedthe top tier of the accused to life imprisonment, taking intoaccount certain extenuating circumstances. If not for these,the death penalty would have been imposed. In addition to ensuringsome accountability, the judgment is important for providingan official and detailed account of what happened in those yearsin Ethiopia under Mengistu's reign. Given that in Ethiopia thereare no official gazettes where court judgments are published,it is unlikely that the public will be able to read the judgmentand thus become aware of what had happened. In addition to analysingthe reasoning of the court, this article also looks into theprevailing political circumstances in the country and reflectsupon the trial and the reception that this important decisionhas had, and will receive, in the wider community.     

Citizen Led Policing in the Digital Realm: Paedophile Hunters and Article 8 in the case of Sutherland v Her Majesty's Advocate

In Sutherland v Her Majesty's Advocate, the Supreme Court unanimously dismissed an appeal which argued that the use of communications obtained by a paedophile hunter group as evidence in criminal prosecution was a violation of Article 8 of the European Convention on Human Rights. The case raises fundamental questions of the scope of the right to private life as regards to the content of communications and the role played by private actors in the criminal justice process. This note argues that by limiting the protection of Article 8 to private communications which satisfy a contents-based test, the Court has bypassed the Article 8(2) balancing test to the detriment of the due process rights of the accused. The note concludes that the decision opens up the prospect of the state circumventing the accused's Article 8 privacy rights by lending tacit approval to the proactive investigations of these private ‘paedophile hunter’ groups.     

The Demarcation of Straddling Villages in Accordance with the International Court of Justice Jurisprudence: The Cameroon-Nigeria Experience

Bi a ba ran eniyan ni ise eru ologbon afi ti omo je (Where instructionsare insensitive and befitting of a slave, a reasonable fellowamends it sensitively and delivers it in a manner befittingthe free).¹

The existence of straddling settlements between Cameroon andNigeria is one of the features of their geographical locationas neighbouring West African States. Although the existenceof these settlements did not constitute a central part of theboundary dispute between both States, implementation of therecent World Court judgment presents crucial dilemmas as tothe treatment of straddling communities in particular and, tosome extent, boundary villages as well. This article exploresthe alternatives that may be adopted in attaining a fair andjust implementation of the Court's judgment in relation to straddlingvillages and boundary communities. The delimitation and demarcationof straddling villages and villages that fall into another State'sterritory are bound to be an increasingly common feature ofthe work of international courts and demarcation commissionsas populations increase and the need to definitively specifyborders increases. It is, therefore, necessary that a specializedjurisprudence is developed for this area of law. This article,therefore, attempts to highlight difficulties in the jurisprudenceof the International Court of Justice in its work in this areaand suggests a typology of factors that may be adopted in varyingdelimitation lines by adjudicators and demarcators. It alsoattempts a digest of what may represent good practice in thelaw of boundary delimitation and demarcation by examining similarcases around the world. The argument presented is that thereis enough within the corpus of international law and internationalrelations for courts to avoid splitting communities needlesslyor subjecting populations to the whims and caprice of hostileStates' territorial jurisdiction, particularly in relation toa continent such as Africa, which has suffered a long and unfairhistory of balkanization of its peoples and civilizations. Thearticle makes the case that the World Court needs more law elaborationif not judicial activism in its delimitation work to avoid inadvertentcomplicity in the abuse of peoples' rights and to attain a morerobust resolution of boundary disputes. The view advanced isthat where aspects of the Court's delimitation may be unsatisfactoryand contrary to the mutual interests of disputants, those chargedwith the task of implementing the Court's judgment must notbe slavish in their appreciation of the spirit of judicial resolution.Where there is the danger that human and generational rightswould be needlessly compromised, nothing apart from an unimaginativeand unco-operative approach prevents demarcators from independentlyadopting a more holistic resolution of the dispute in the interestof human justice, such as by (within very strict limits) varyingdelimitation lines suggested by the Court in particular sectors.     

The dangerous patient exception to the psychotherapist-patient privilege: the Tarasoff duty and the Jaffee footnote

With the U.S. Supreme Court's 1996 decision in Jaffee v. Redmond, all U.S. jurisdictions have now adopted some form of evidentiary privilege for confidential statements by patients to psychotherapists for the purpose of seeking treatment. The majority of states, following the decision of the Supreme Court of California in Tarasoff v. Regents of the University of California, have also adopted some form of duty by psychotherapists to breach confidentiality and warn potential victims against foreseeable violence by their patients. Largely unresolved is whether there should be a dangerous patient exception to the evidentiary privilege parallel to the Tarasoff exception to confidentiality. This Article argues that exception to the evidentiary privilege should be evaluated separately from the exception to confidentiality. Whether or not a Tarasoff duty to warn existed at an earlier time, exception to the evidentiary privilege should be made only where psychotherapists' testimony is necessary to prevent future harm to patients or identified potential victims. Applying this standard, the dangerous patient exception generally would not apply in criminal actions against patients, but would apply only in proceedings for the purpose of protecting patients or third parties, such as restraining order hearings or proceedings to hospitalize patients.