Life as a UN Special Rapporteur – Professor Surya Subedi OBE

On 5 May 2015, Professor Surya Subedi OBE delivered a speech at the University of Leeds on his time as UN Special Rapporteur for Human Rights in Cambodia from 2009 to 2015.  Professor Subedi is Vice-President of the ILA Nepalese Branch and Member of the ILA British Branch.

The lecture is titled ‘Life as a UN Special Rapporteur’ and the ILA Reporter is proud to make available a copy to its readers. To access the speech, please click here.

The life of a Special Rapporteur is described by Professor Subedi as that of ‘an international diplomat, a human rights activist, a human-rights law academic, and a government adviser – simultaneously’ (p. 38). The speech is an insightful and entertaining story of what it means to juggle these ‘hats’ at the same time. 

Professor Subedi’s role took some interesting turns during his time in office. At one point, he became the de facto mediator between the Cambodian government and opposition during the political stalemate following disputed 2013 elections.  At other times, he operated as a government critic and was very nearly declared persona non-grata by Cambodian authorities. Whilst such status is apparently something of a ‘badge of honour’ in the international human rights community, Professor Subedi says that he is happy enough with his OBE from Her Majesty the Queen of the UK.

Professor Subedi’s style as Special Rapporteur was characterised by robust critique layered in soft diplomatic language.   Indeed his style earned him the dubious title of ‘old whisky in a new bottle’ from the Cambodian Prime Minister. In the Editors’ views, coming from the man the subject of the criticism, that’s a pretty good nip.

 

A genocidal act: The forcible transfer of Bosnian Muslims from Srebrenica (with reference to Krstic and Jelesic) – Sophocles Kitharidis

The term genocide is commonly seen within political and legal dialogues as describing atrocities of great ‘diversity, magnitude, and character’ (David Scheffer, ‘Genocide Atrocity Crimes‘ (2006) 1(3) Genocide Studies International 229).  In the Convention on the Prevention and Punishment of the Crime of Genocide, genocide attaches to specific acts ‘committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’ (article 2).

Referring to the forcible transfer of Bosnian Muslims from Srebrenica, the International Criminal Tribunal for the former Yugoslavia (ICTY) held in the Prosecutor v Krstic (Krstic) that ‘an intent to destroy only part of the group must nevertheless concern a substantial part thereof, either numerically or qualitatively’ (at [6]–[8]).  In addition, in Prosecutor v Jelisic (Jelisic) the ICTY Trial Chamber argued that ‘it is widely acknowledged that the intention to destroy must target at least a substantial part of the group’ (at [82]).

Examination of the meaning of ‘intent’, ‘substantial part’ and ‘destruction of part of a group’ is crucial to deconstructing the act of genocide within the context of forcible transfer.  This post will seek to contribute to this area by exploring the act of genocide in Bosnia and Herzegovina and examining the ICTY’s characterisation of the forcible transfer of Bosnian Muslims from Srebenica in Krstic and Jelesic.

Genocide, the ICJ and the development of a ‘Greater Serbia’

In examining the concept of genocide and the intention of the Serbian leadership during the 1992 mass killings in the former Yugoslavia in The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Genocide Case), the International Court of Justice (ICJ) held that Bosnia’s argument

does not come to terms with the fact that an essential motive of much of the Bosnian Serb leadership — to create a larger Serb State, by a war of conquest if necessary — did not necessarily require the destruction of the Bosnian Muslims and other communities, but their expulsion (at [372]).

This statement is concerning because it seems to suggest that forcible transfer is not a relevant consideration in determining whether or not genocide has taken place.  For this reason, among others, the ICJ’s acquittal of Serbia of the act of genocide has proved controversial (see, eg, Katherine Goldsmith, ‘The issue of Intent in the Genocide Convention and Its Effect on the Prevention and Punishment of the Crime of Genocide: Toward a Knowledge-based Approach’ (2010) 5(3) Genocide Studies and Prevention 238).

Vice President al-Khasawneh J issued a dissenting opinion in the Genocide Case, stating:

[c]oupled with population transfers, what other inference is there to draw from the overwhelming evidence of massive killings systematically targeting the Bosnian Muslims than genocidal intent? If the only objective was to move the Muslim population, and the Court is willing to assume that the Bosnian Serbs did not only that which is strictly necessary in order to achieve this objective, then what to make of the mass murder? If the Court cannot ignore that population transfer was one way of achieving the Strategic Goals, then why should it ignore that, in fact, the Bosnian Serbs used this method as one of many — including massive killings of members of the protected group (at [41]).

The destruction of a ‘substantial part’ of ‘part of a group’

As described above, genocide is the commission of a ‘prohibited act’ ‘with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’.  The prohibited acts are set out in article 2  and include, for example, killing or causing serious bodily or mental harm to members of the group.

The crime of genocide is  somewhat unique as it requires that two forms of mens rea or intent be established.  The first is that a person must commit a prohibited act with intent.  The second layer of intent is genocidal intent or dolus specialis, which is the intent to destroy the group. As provided in Prosecutor v Akayesu, the

[s]pecial intent of a crime is the specific intention, required as a constitutive element of the crime, which demands that the perpetrator clearly seeks to produce the act charged … [and] the crime of genocide lies in the intent to destroy, in whole or in part, a national, ethnical, racial or religious group (at [498]).

In Jelisic, the ICTY discussed two ways in which genocidal intent may be established:

[i]t may consist of desiring the extermination of a large number of members of the group in which case it would constitute an intention to destroy a group en masse. However, it may also consist of the desired destruction of a more limited number of persons selected [i.e. leadership of the group] for the impact that their disappearance would have upon the survival of the group as such. This would then constitute an intention to destroy the group ‘selectively’ (at [82]).

The Trial Chamber in Jelisic also ruled that the act of genocide may be conducted within a ‘limited geographic zone … limited to the size of a region or … a municipality’ (at [83]). This was revisited in Krstic, where the Trial Chamber  resolved that

the physical destruction may target only a part of the geographically limited part of the larger group because the perpetrators of the genocide regard the intended destruction as sufficient to annihilate the group as a distinct entity in the geographic area at issue (emphasis added) (at [590]).

‘Part’ must be interpreted as a large or substantial part of the group at hand, and with the ability to have a significant impact on the entire group (at [43]). This test has been reformulated thus:

  • in Jelisic as ‘targeting at least a substantial part of the group’; and
  • in Prosecutor v Sikirica where the court found that there must exist intention to destroy a large number of a group that is relative to the entire population of that group, and as such, negatively impact the survival of that group.

How then does forcible transfer tie in with establishing the existence of intent to destroy whole or part of a group?

With regard to the situation in Srebrenica, the Court in Krstic held that whilst the act of forcible transfer is not itself a genocidal act, it may be taken into account as evidence of the existence of genocidal intent (at [33]).  Shahbuddeen J, in his partially dissenting opinion argued that

standing alone, forcible transfer is not genocide. But in this case the transfer did not stand alone, and that indeed is the basis on which the Appeals Chamber rejected the defence argument that it showed that there was no genocide. It was part — an integral part — of one single scheme to commit genocide, involving killings, forcible transfer and destruction of homes. In particular, it showed that the intent with which the killings were done was indeed to destroy the Srebrenica part of the Bosnian Muslim group. (at [35])

A more conservative approach was adopted by the Trial Chamber of the ICTY in Prosecutor v Brdjanin (Brdjanin).  The Court agreed with the view expressed in Kristic that while the act of forcible transfer does not itself constitute genocide, it does not give reason to prevent the use of this act being relied on as evidence to demonstrate intent.  However, the Trial Chamber qualified this rule by stipulating that it is not appropriate to use forcible transfer as substantial evidence of the actual destruction of a particular group, ‘since that would in effect mean the consideration, as it were through the back door, of forcible displacement as an underlying act’ (at [975)]).

In Brdjanin ,the Court was ultimately not satisfied that the forcible transfers of Bosnian Muslims and Bosnian Croats gave rise to specific intent.  It stated that

the existence of the specific intent required for the crime of genocide must be supported by the factual matrix.  The extremely high number of Bosnian Muslim and Bosnian Croat men, women and children were forcibly displaced from [Autonomous Region of Krajina] … particularly when compared to the number of Bosnian Muslims and Bosnian Croats subjected to the acts enumerated in Article 2(4)(a), (b) and (c) [of the Genocide Convention], does not support the conclusion that the intent to destroy the groups in part, as opposed to the intent to forcibly displace them, is the only reasonable inference that may be drawn from the evidence (at [976]).

Conclusion

It is indisputable that establishing the crime of genocide is difficult.  This is due, in large part, to the difficulty of proving that genocidal intent was present in the mind of the perpetrators.  The act of forcible transfer — despite not being a ‘prohibited act’ — may assist a court to determine that there existed genocidal intent.  In certain situations, the forced transfer of persons belies a wider strategy to bring about the physical destruction of a race by removing a people from a region and thereby eliminating the residual possibility that the group could be reconstituted in the area.

Sophocles Kitharidis is a public international law adviser and consultant to the International Affairs Division of the Thai Ministry of Justice. He is the former Vice President of the International Law Association (Victoria) and he holds a Master of Laws in Public International Law from the University of Melbourne. 

ICC v Islamic State? An Emerging Quandary

Last month, the United Nations High Commissioner for Human Rights released a report which concluded that the Islamic State had perpetrated gross violations of international criminal law, including acts amounting to possible genocide.  The High Commissioner recommended that Iraq accept the jurisdiction of the International Criminal Court (ICC) to investigate and prosecute crimes perpetrated within its territory under article 12(3) of the Rome Statute.

This suggestion triggered international debate over what role the ICC could and should have in prosecuting Islamic State leaders.

They key issue in this debate is whether the Security Council should refer the ongoing situation in Iraq and Syria to the ICC.  This has been previously advocated by UN human rights chief, Zeid Raad al-Hussein, and France has recently declared its support for such a resolution.

On 2 April 2015, the New York Times published an article by John Bellinger III — a former US legal adviser to the National Security Council and State Department — supporting a Security Council referral.  For international lawyers, Bellinger’s most compelling point is that the US and UK should not limit themselves to merely prosecuting Islamic State leaders for crimes committed against their citizens under their respective domestic legal systems.  An international prosecution by the ICC is necessary because:

[t]he group is engaging in widespread and systemic attacks against civilians in Iraq and Syria that constitute grave international crimes (including genocide)

Bellinger’s article is flecked with controversial political statements, which are picked up and attacked by Professor Kevin Jon Heller in a post on Opinio Juris.  Heller disagrees with Bellinger’s statement to the effect that it is more sensible for the ICC to investigate the Islamic State rather than have them investigate the US or the UK over treatment of detainees or Israel in respect of the 2014 conflict in Gaza.  Heller argues that ‘the expressive value of prosecuting UK or US military commanders and political leaders for torture would be incalculable’.

Heller also takes issue with a procedural point asserted by Bellinger — that a Security Council referral would be the only way to prosecute Islamic State because Iraq and Syria are not parties to the Rome Statute.  Heller responds that a referral is unnecessary, because the ICC’s jurisdiction is not territorial: it can prosecute the nationals of any state party to the Rome Statute.  As some prominent Islamic State figures are citizens of states who are party to the Rome Statute — like the infamous Jihadi John who is a British citizen — the ICC already possess a limited jurisdiction that would enable it to perform prosecutions.

However, on 8 April 2015, ICC Prosecutor, Fatou Bensouda joined the fray and stated that ‘[t]he jurisdictional basis for opening a preliminary examination into this situation is too narrow at this stage’.

Perhaps in a nod to the members of the Security Council, Bensouda goes on to remark that:

The decision of non-Party States and the United Nations Security Council to confer jurisdiction on the ICC is, however, wholly independent of the Court… I stand ready to play my part, in an independent and impartial manner, in accordance with the legal framework of the Rome Statute

However, the immediate goal of the international community is not the prosecution of Islamic State’s leadership, but the protection of Iraqi and Syrian populations and the ongoing military campaign against the extremist group.

 

Children Forgotten in the Forgotten Children Report – Nina Gibson

The Australian Human Rights Commission’s (AHRC) Forgotten Children Report (Report) was tabled in Parliament on 11 February 2015. Whilst the Report has been the subject of significant political controversy, there has been limited discussion or analysis of its content.

This article seeks to highlight two important findings in the Report. First, Australia’s indefinite detention of asylum-seeking children and their families reveals a tension between our domestic legislation and our obligations to protect children under international law. Secondly, the indefinite or prolonged length of the detention of children gives rise to a multitude of harms, compounding the gravity of Australia’s violations of its international obligations.

The findings of the Report are startling. At the time of its publication, Australia held 800 children in mandatory closed immigration detention (including 186 children detained on Nauru) for indefinite periods, ‘with no pathway to protection or settlement’. Over 100 babies had been born in detention, with no experience of life outside detention centres. As at March 2014, children and their parents had been detained for an average of 413 days, with some children detained for over 27 months due to their parents having had adverse security assessments. In 2013, over 200 physical and sexual assaults involving children were reported in immigration detention centres. During a 15-month period from January 2013 to March 2014, 128 children in detention engaged in self-harm, whilst 34 per cent of detained children had developed serious mental health disorders. The Report also establishes clear correlations between the length for which children are detained and the deterioration of their mental health and development.

The detention of children under Australian law

Australia is the only country in the world that mandates the closed and indefinite detention of asylum-seeking children as a first action. Section 189 of the Migration Act 1958 (Cth) (Act) requires an officer to detain an ‘unlawful non-citizen’ in the ‘migration zone’. Under section 5AA of the Act, mandatory detention extends to ‘unauthorised maritime arrivals’ (which includes children) as well as the children of unauthorised maritime arrivals subsequently born in detention.

The Report notes that countries including Greece, Malaysia and the US detain children for immigration matters, however, unlike Australia, ‘detention … is not mandatory and does not occur as a matter of force’. Whilst Australia was one of the first states to sign and ratify the United Nations Convention on the Rights of the Child (CRC) in 1990, the CRC has not been incorporated into Australian law by legislation.

The High Court held in Al-Kateb vs Godwin that it is not contrary to Australian law to keep a person in immigration detention, even if the removal of that person from Australia would not occur in the foreseeable future. As a result of the decision, the Department of Immigration and Border Protection insists that ‘there is no time limit on the lawfulness of detention under Australian law’. Nonetheless, when considering the indefinite detention of children, the High Court confirmed in Teoh’s Case that, when making decisions that affect children, government officials should take into account the rights guaranteed by the CRC. As discussed below, the rights afforded to children under the CRC have been superseded by the indefinite nature of their detention.

Breaches of the United Nations Convention on the Rights of the Child

The Report argues that the detention of asylum-seeking children in Australia violates the basic protection provided to children under international law.

Pursuant to article 37(b) of the CRC, the detention of children is ‘only as a measure of last resort’ and must not be arbitrary. The detention of children will not be ‘arbitrary’ where it is ‘necessary and reasonable’ in all the circumstances of the child’s claims for asylum. Further, the detention of the child must be a proportionate means to achieving a legitimate aim.

The AHRC finds that, in the majority of cases, the detention of children has been arbitrary within the meaning of article 37(b). This is due to children being detained as a first action and held in detention irrespective of whether the child or their family poses an unacceptable risk to the Australian community. The finding underlines a serious failure to give effect to international human rights law in Australia’s domestic legislation, namely the above-mentioned sections of the Act.

The AHRC also determines that the indefinite detention of children undermines the ‘best interests’ principle enshrined in the CRC. Article 3(1) of the CRC stipulates that ‘in all actions concerning children … the best interests of the child shall be a primary consideration’. The Report provides a breakdown of the psychological, developmental and physical effects of immigration detention on children of varying ages and argues that current immigration law fails to address the particular vulnerabilities of those children. Further, it states that indefinite detention fails to consider the individual circumstances of children and does not address the best interests of the child as a primary consideration.

Importantly, the AHRC finds that the adverse effects of detention, such as instances of self-harm and abuse, mental health disorders and developmental delays have almost always been exacerbated by the length at which children are detained. Accordingly, the longer a child is held in detention the more serious the violation of their rights under the CRC becomes.

In the eyes of this author, it is uncontroversial that children are subject to specific vulnerabilities and, as such, should be afforded special protection under both domestic and international law.

And yet, the disparity between Australia’s domestic legislation and its international obligations, as well as the indefinite nature of immigration detention, illustrates that both sides of Australian politics have failed to recognise the vulnerabilities of asylum-seeker children and protect them from the multitude of harms arising from immigration detention.

Nina Gibson works in public international policy, having held positions at UN Women, the Australian Institute of International Affairs and the Extraordinary Chambers of the Courts of Cambodia. Nina holds a Bachelor of International Relations and a Masters of Law, Governance and Development, both from the ANU. The views in this article are solely her own.

Release of Human Rights Watch World Report 2015

On 29 January 2015, Human Rights Watch (HRW) – the international human rights advocacy organisation – released the 25th edition of its World Report (Report). The Report reviews notable human rights issues across 90 states and territories.

The Report’s chapter on Australia covers issues ranging from asylum seekers and refugees to disability rights to freedom of expression. The chapter recognises Australia’s record on human rights, calling up our ‘solid record of protecting civil and political rights, with robust institutions and a vibrant press and civil society that act as a check on government power’.

However, it then goes on to state:

The government’s failure to respect international standards protecting asylum seekers and refugees, however, continues to take a heavy human toll and undermines Australia’s ability to call for stronger human rights protections abroad.

This post canvasses the human rights issues raised in the Report, with a focus on those issues which are not heavily reported by Australian media.

Asylum Seekers and Refugees

Australia’s asylum and refugee policies receive the heaviest criticism. The Report observes that:

  • asylum claims are not processed in a fair, transparent, or expedient manner, with significant cost to detainees’ physical and mental harm;
  • gay asylum seekers in detention on Manus Island fear persecution, sexual assault and resettlement in Papua New Guinea, where homosexual relationships are criminalised;
  • 50 refugees have had adverse security assessments made against them and are consequently subject to indefinite detention; and
  • 3,500 asylum seekers have been processed via a screening system which permits no access to legal representation or right to appeal.

Indigenous People’s Rights

The Report notes the controversial establishment of an indigenous advisory council, whilst defunding the pre-existing Congress of Australia’s First Peoples. It also raises the continued disproportionate representation of indigenous Australians in prison and disparate life expectancy and infant mortality rates. Positively, the Report notes the steps that are being taken towards a referendum on indigenous recognition in the Constitution and the improvements in some health and socioeconomic indicators.

Disability Rights

The Report welcomes the continued rollout of the National Disability Insurance Scheme but criticises changes to the Disability Support Pension which will result in people with disabilities receiving appreciably lower welfare payments. As forty-five percent of people with a disability live near or below the poverty line, the cuts will have an adverse impact on the disability sufferers’ quality of life.

Sexual Orientation and Gender Identity

The section notes that Australian law restricts marriage to heterosexual relationships, despite increasing public support for same-sex marriage.

Freedom of Expression

According to HRW, threats to rights of freedom of expression in Australia include:

  • the revision of funding agreements with community legal centres to prohibit centres from using Commonwealth funds for law reform or advocacy;
  • counterterrorism laws targeting home-grown terrorism – including new offences for ‘advocating terrorism’; and
  • new offences for journalists who disclose information relating to Australian ‘special intelligence operations’.

Foreign Policy

HRW condemns Australia’s foreign aid cuts of more than $600 million and appears to imply that foreign aid priorities are self-serving.

It also raises the government’s muted criticism of countries with histories of rights-abuses – including Sri Lanka and Cambodia – to win support for its refugee policies from those countries. For example, in 2014 it elected not to co-sponsor a UN Human Rights Council (Council) resolution establishing an international inquiry into human rights abuses in Sri Lanka as it had done in previous years. This is despite Australia’s bid for a seat on the Council in 2018.