Mauritius: Forum for Somali piracy prosecutions

Greetings from Mauritius, a small island nation in the south of the Indian Ocean, where Professor Michael Scharf and I have traveled to meet with various government officials regarding Somali piracy issues (pictured left).
Mauritius is about to start prosecuting Somali pirates in its national courts, pursuant to transfer agreements which it has signed with the United Kingdom and the European Union. Under the terms of these agreements, alleged Somali pirates detained by maritime fleets of the United Kingdom or countries in the European Union can be transferred to Mauritius, where they can be prosecuted in Mauritian courts under Mauritian law.
Kenya and the Seychelles have similar transfer agreements in place and have successful prosecuted dozens of Somali pirates. Mauritius joined this “club” of piracy-prosecuting nations earlier this year, and although no actual transfers of suspected pirates have actually taken place as of today, many in the international community are eagerly awaiting the start of prosecutions in this new venue.
Professor Scharf and I have previously engaged in various projects related to Somali piracy about which I have previously posted. The visit to Mauritius is a continuation of these projects: we are here both as representatives of the Piracy Working Group, an expert group within the auspices of the Public International Law and Policy Group, a Washington D.C.-based NGO, and as independent academics and representatives of our respective institutions, Case Western Law School and the Cleveland-Marshall College of Law.
One of our goals is to advise the Mauritian government on best strategies regarding various aspects of piracy prosecutions. Toward that end, we delivered a presentation at the Deputy of Public Prosecutions’ office, to an audience consisting of prosecutors, judges, practicing attorneys, and other government officials, on the issue of juvenile pirates. It was our recommendation that Mauritius should not shy away from prosecuting juvenile pirates, but that instead, it should put in place an appropriate mechanism under which juveniles can be prosecuted in separate proceedings, detained separately from the adult prison population, and accorded educational opportunities in order to properly rehabilitate them. It was also our recommendation that those who recruit juvenile pirates should be treated more harshly, and that the recruitment and use of juvenile pirates should be an aggravating factor in sentencing.
Another goal in Mauritius is to establish a working relationship with the prosecutor’s office, whereby Mauritian prosecutors will be able to commission legal memoranda on challenging legal issues which may arise in connection with future piracy prosecutions from the Piracy Working Group. Various members of the Piracy Working Group, including Professor Scharf’s and my own students at our law schools, have already produced such memoranda for the Kenyan and Seychellois prosecutors. It is our hope that in the future members of the Piracy Working Group will be able to assist Mauritian prosecutors in a similar manner.
We anticipate that Mauritian prosecutors will face very difficult legal issues once they open their courtroom doors to Somali pirates. Some such issues, in addition to the treatment of juvenile pirates mentioned above, include the possibility of expanding jurisdiction to cover preparatory acts falling short of traditional notions of piracy, the question of whether the prosecuting forum should be divested of jurisdiction if the detained suspected pirates were mistreated by the arresting nation, whether Mauritius can use any extradition treaties in addition to its existing transfer agreements to acquire jurisdiction over suspected pirates, the issue of respecting the suspected pirates’ right to a speedy trial, as well as the question of long-term incarceration for any convicted pirates and whether Mauritian prisons have the adequate capacity if pirates are to serve lengthy sentences in Mauritius.
Our other meetings over the next few days in Mauritius include a visit at the U.S. Embassy in Port Louis, the capital city, a working session with the Attorney General, a visit to the University of Mauritius Law School, as well as a conversation with the Mauritian police forces, whose role may prove to be of vast importance once Mauritian authorities began to handle detained pirates. I will be happy to report on these future meetings upon my return home.

Issues in prosecuting piracy

(Delighted to welcome back alumna Milena Sterio, author of a forthcoming article on maritime piracy, who contributes this guest post)

After last week in the Seychelles, where, as posted, I attended meetings with the Seychelles’ Attorney General and Supreme Court judges, I am back in the United States. I would like to take this opportunity to reflect on some of the legal issues related to Somali piracy and prosecutions in the national courts of the Seychelles.

Jurisdiction
For any nation interested in prosecuting Somali pirates, the threshold issue is jurisdiction. In other words, if a country wants to prosecute pirates, it must amend and expand its jurisdictional statute to allow for such prosecution on the broadest possible basis.
The Seychelles (flag above) has thus revised its national law to allow for the prosecution of pirates captured on the high seas. This type of universal jurisdiction allows countries like the Seychelles to prosecute acts of piracy to which they have no nexus. (Such issues also have been discussed in prior IntLawGrrls posts, available here.)
Many countries, including the Seychelles before the recent revision, have jurisdictional statutes that allow for pirate prosecutions only if the act of piracy is committed in that country’s territorial sea, extending 12 nautical miles from the country’s shore. Thus, acts of piracy committed outside of such countries’ territorial sea cannot be prosecuted in those countries’ national courts because of a basic jurisdictional shortcoming.
Mauritius, another island nation in the Indian Ocean and another potential partner in the global fight against Somali piracy, has also started to consider expanding its jurisdictional statute to allow for national prosecutions of Somali pirates. It is unclear, however, how Mauritius will revise its statute. Some reports indicate that Mauritius’ law will only allow for prosecutions of piracy acts committed in the Mauritius exclusive economic zone, a stretch of sea extending 200 nautical miles from the country’s shore. This kind of a revision would seriously limit Mauritius’ ability to prosecute Somali pirates, as acts committed on the high seas would be excluded from Mauritius’ jurisdictional reach.
In the Seychelles, it appears that jurisdiction will not pose problems, in light of the new universal jurisdiction statute that this country passed.
One issue that remains unclear is whether the Seychelles’ government will demonstrate an ongoing political willingness to support piracy prosecutions on a true universal jurisdiction model. In fact, despite the mentioned universal jurisdiction statute, the Seychelles’ authorities may prove unwilling for policy reasons to extend their courts to prosecutions of Somali pirates who have not threatened the Seychelles’ national interests in any way.
Another possible mode of jurisdiction that countries like the Seychelles may adopt in the future is the protective principle – a type of jurisdiction that allows for prosecutions of acts which threaten the national interests of the prosecuting country. While traditionally this mode of jurisdiction has been used to prosecute offenses such as treason, immigration violations, and the counterfeiting of national flags, currency, and emblems, it is possible that acts of piracy could be conceived of as violating the national interests of certain countries and thus prosecuted under this model of jurisdiction.
The advantage of using the protective principle may be in the fact that it could allow for the prosecution of acts committed in preparation of piracy – acts that do not qualify as piracy itself.
Acts that do not constitute piracy, yet nonetheless may constitute presumptive offenses, include sailing on a skiff with a boarding ladder and weapons. For this type of preparatory act, universal jurisdiction is of no help, because universal jurisdiction statutes only cover true acts of piracy and do not extend to planning and preparatory offenses. Protective principle jurisdiction, on the other hand, could be used to cover these kinds of crimes; a country like the Seychelles may successfully make the argument that the planning of a piratical act could threaten its national interests, for the reason that the act of piracy, even if committed on the high seas, could be harmful if it can be shown that pirates were about to target the country's vessels or nationals or enter its exclusive economic zone.
Using a combination of universal jurisdiction to cover true acts of piracy, with the protective principle to cover preparatory offenses, would enable countries like the Seychelles to prosecute the maximum number of piracy-related violations occurring on the high seas.

Cooperation agreements
The next issue related to the prosecution of pirates for a country like the Seychelles is the ability to prosecute Somali pirates who are detained by the naval authorities of another country. Here, the Kenya model of transfer agreements or memorandums of understanding, which I discussed in my last post, proves useful.
The Seychelles, like Kenya (flag at right), has thus concluded transfer agreements with the European Union and the United Kingdom, pursuant to which Seychelles has accepted to prosecute Somali pirates detained by the EU or UK forces on the high seas.
The Seychelles’ Attorney General informed our delegation last week that eleven successful piracy trials had already taken place in the Seychelles’ courts; in all these cases the pirates had been detained by the European Union/British forces and transferred to the Seychelles.
The pirates have been prosecuted for the offense of piracy existing under the Seychelles’ domestic criminal law.
Moreover, pirates have been prosecuted under the theory of “common intention,” a mode of joint criminal liability which allows for combined prosecutions of all pirates involved in a single piracy incident. This has enabled the Attorney General to prosecute pirates in groups of ten or eleven, as well as to charge all those involved in a piracy incident with the same offenses, irrespective of their role in the incident itself. Thus, the prosecutors in these cases did not have to prove what exact role each pirate played in the piracy incident. Rather, each pirate was charged with the act of piracy itself, and each pirate would potentially be imposed the same criminal sentence. According to the Attorney General, convicted pirates have received sentences ranging from five to twelve years of imprisonment, and several other pirates are currently detained and awaiting trial.

Conditions of confinement
The next issue that countries like the Seychelles face is prison capacity and the adequacy of detainment conditions.
The Seychelles and Kenya both have benefited from financial assistance, from major maritime nations as well as the United Nations. Thus, in the Seychelles a new prison wing has been built; this wing is “reserved” for the detention of Somali pirates and arguably coincides with international detention standards.
This in turn will preempt non-refoulement, the human rights principle that prevents states parties to major human rights treaties from transferring pirates to any place where pirates would be likely mistreated. In fact, the Seychelles has clearly demonstrated that its prosecutions are fair and neutral, and that pirates are detained pre- and post-trial in humane conditions. Capturing nations should not face non-refoulement type issues when deciding whether to transfer detained Somali pirates to the Seychelles’ authorities.

After detention
Finally, countries like the Seychelles may be faced with post-detention issues – in other words, once Somali pirates have finished serving their sentences, they may choose to apply for political asylum in the Seychelles. While nobody should be blamed for wanting to live in this tropical haven, it is reasonable for the Seychelles’ authorities to question the need to extend their country’s protection to individuals who have committed heinous offenses such as piracy. It is one thing to detain Somali pirates for a set number of years, it is quite another to offer them political asylum and the possibility to freely live in the Seychelles forever. I would be loath to discourage countries like the Seychelles from prosecuting Somali pirates, but post-detention issues remain a complex issue that the Seychelles’ authorities may have to ponder in the near future.

I look forward to blogging about Somali piracy in the future, and hope that other countries, like Mauritius (flag at left), will follow in the footsteps of the Seychelles and seriously consider opening their courthouse doors to piracy prosecutions.

Report from U.N. meeting on Somali piracy

On September 17-18, 2012, I had the opportunity to attend the 11th meeting of the U.N. Contact Group on Piracy off the Coast of Somalia, Working Group 2, in Copenhagen, Denmark. Professor Michael Scharf of Case Western Reserve University Law School and I, in our capacity as independent academics as well as members of the Public International Law and Policy Group, Piracy Working Group, were invited to give a presentation at the Working Group 2 meeting. (We're pictured above left, and below with Ambassador Thomas Winkler, the Chair of Working Group 2.)
Our topic was juvenile pirates – the treatment of detained juvenile pirates by the capturing and/or prosecuting state, as well as the need to aggressively detain and prosecute those who recruit juvenile pirates. Our brief presentation was followed by an intense question-and-answer session, during which we attempted to answer many provocative inquiries addressed at us by the delegations of more than 50 states represented at this meeting.
It was our recommendation that juvenile pirates should not be caught and released, but that instead they should be prosecuted under special circumstances, taking into account their age as well as the possibility to retrain, re-educate and rehabilitate them.  If juvenile pirates are released, they should not be simply "dumped" on the shore of Somalia; instead, every effort should be made to contact their family members for the purpose of reuniting them.
It was also our recommendation that those who affirmatively recruit juvenile pirates should be treated more harshly: for example, that the use of juvenile pirates would be an aggravating factor in sentencing. Another innovative approach would be to argue that the use of juvenile pirates is a crime against humanity, citing international criminal tribunal precedents in which the accused were convicted of of child-soldier recruitment.
In addition to our presentation on the issue of juvenile pirates, Working Group 2 members discussed several other important topics. The meeting started with updates by member states on any developments regarding their own experiences in combating Somali piracy in the last six months. Some such notable developments include:
►the first-ever post-conviction transfer of Somali pirates, convicted in the national courts of the Seychelles, to Somaliland, where they will serve their entire sentences;
►the first-ever extradition of detained pirates from the Seychelles to the Netherlands for the purposes of prosecution in the Netherlands;
►the signing of transfer agreements between Mauritius and several maritime nations, whereby Somali pirates captured by the latter will be transferred to Mauritius for prosecution in this country’s national courts;
►the update by Kenya that a long-awaited appellate judgment, which could effectively restart piracy trials in Mombasa, will be rendered at the end of September.
Working Group 2 members then discussed various human rights considerations linked to the detention and possible prosecution of suspected Somali pirates.

Kenya Again Has Universal Jurisdiction Over Piracy

The Kenyan Court of Appeal in Nairobi has overturned the Mombasa High Court judgment of November 9, 2010, in which Judge M.K. Ibrahim had ruled that Kenyan courts did not have jurisdiction to prosecute anybody for the crime of piracy, unless the crime took place in Kenyan territorial waters.
In the case of In re Mohamud Mohammed Hashi, et al., decided on October 18, 2012, the Court of Appeal determined that Kenyan courts would once again have universal jurisdiction over the crime of piracy.
As yours truly and many others have written before, Kenya had concluded a series of transfer agreements with maritime nations, whereby Somali pirates captured by such maritime nations would be transferred to Kenya, for prosecution in the Kenyan magistrate-level courts. The Mombasa High Court’s 2010 judgment signaled the end of the Kenyan transfer program, because of its holding that only territorial piracy crimes could be prosecuted in the Kenyan courts (for an excellent analysis of this judgment, see this post). Most instances of Somali piracy take place on the high seas, and as such, none would have been eligible for prosecution in the Kenyan courts under the magistrate court ruling.
After the November 9, 2010, ruling, the international community reacted with both concern and pragmatism.
Attempts were made at the diplomatic level to persuade the Kenyan authorities to resume prosecutions. In addition, two new regional partners were identified: the Seychelles and Mauritius both concluded similar transfer agreements with major maritime nations, whereby these two nations agreed to prosecute captured Somali pirates in their national courts.
Facing pressure by the international community, as well as the prospect of losing the transfer model exclusivity, Kenya responded by establishing a special appellate jurisdiction in which the November 9, 2010, ruling would be challenged. The appellate panel was composed of five justices, who, after almost a 2-year delay, unanimously determined that the 2010 ruling would be overturned.
The appellate judgment should result in the restart of the Kenyan transfer program, and in the resumption of ongoing piracy trials in the Mombasa courts, which had all been halted pending this appeal.

Justice David K. Maraga

The Court of Appeals judgment was delivered by Justice David K. Maraga. Justice Maraga determined that the Mombasa High Court had misinterpreted Kenyan law, by subordinating a specialized substantive section on piracy to a more general section on jurisdiction.
In addition, Justice Maraga decided that the lower court had failed to appreciate the applicability of the doctrine of universal jurisdiction.  He wrote that

'the offence of piracy on the coast of Somalia, which we are dealing with in this appeal, is of great concern to the international community as it has affected the economic activities and thus the economic well being of many countries including Kenya. All States, not necessarily those affected by it, have therefore a right to exercise universal jurisdiction to punish the offence.'

It seems that, according to Justice Maraga, Somali piracy constitutes a global threat, and that courts of all nations, including Kenya, should be able to prosecute the crime of piracy under the concept of universal jurisdiction.
The re-opening of Kenyan courtrooms for the prosecution of Somali pirates is a welcome development in the global fight against Somali piracy.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'[B]oth decisions focus on the applicable standard for challenges to arbitrators, and specifically on whether an "appearance of bias" standard is required. In both cases, the Tribunals, after a fairly detailed analysis of the parties' submissions and prior ICSID and other international decisions, clearly rejected the requirement of an "appearance of bias" standard, instead opting for a less stringent standard. Once the "appearance of bias" standard was disregarded, however, the contours of the applicable standard adopted remain unclear.'

 -- IntLawGrrls contributor Chiara Giorgetti (left), who's just joined the law faculty at Virginia's University of Richmond, in an ASIL Insight that reviews 2 decisions in which a party's challenge to a member of an arbitral panel was rejected (by the panel's remaining members, a fact that, Chiara notes, "may create uneasy situations for arbitrators and may need to be re-examined"). The 1st decision, issued last November in a dispute between Mauritius and Britain, concerned Sir Christopher Greenwood, a judge on the International Court of Justice; the 2d decision, issued in February this dispute between Venezuela and ConocoPhillips Co., before ICSID, the International Centre for Settlment of Investment Disputes, appears to have been taken offline. It concerned Canadian lawyer-arbitrator-diplomat L. Yves Fortier.

In India, global discussion of feminism & law

(My thanks to IntLawGrrls for the opportunity to contribute this introductory post)

Not long ago, while most of us here in the United States were fighting off the dreary days of winter, I was a world away in the sunny and energetic college town of Pune, India, about three hours southeast of Mumbai.
I was there to present at the inaugural International Conference on Feminism and Law, at the ILS Law College. The theme for the conference was “Revisiting the Past, Rethinking the Present, and Thinking the Way Forward,” and with topics ranging from gender violence to globalization to reproductive technology, there was a lot to explore, debate, and discuss. (credit for image from conference webpage)
The conference brought together academics, lawyers, researchers, students, and activists from around the world, including presenters from Australia, Canada, Lebanon, Egypt, South Africa, the United Kingdom, the United States, Japan, Mauritius, and of course, India. All of the participants and presenters brought a wealth of knowledge and experience to the proverbial table. I consider myself very fortunate to have had the opportunity to spend three days (mostly) listening and (sometimes) talking with such talented, accomplished, smart, and congenial people.
 There were also several feminist heavy-hitters on hand to pose difficult, probing questions and to present rousing keynote addresses, including Ratna Kapur (left, Executive Director and Research Head of the Centre for Feminist Legal Research, based in New Delhi, India), Professor Rosemary Hunter (Kent Law School, England), Professor Margaret Thornton (below right, from Australian National University College of Law), and Flavia Agnes (attorney and India-based Fellow at Ashoka, a global nongovernmental organization).
I think I spent most of the conference realizing how little I really know about the ways in which women struggle all over the world, not just for equal legal rights or equal social status, but for the most basic of human rights – safety from physical harm. I was oftentimes saddened by stories of the shocking incidence of sexual violence and other atrocities perpetrated against women throughout the world every day, but so incredibly heartened by the knowledge that there are so many devoted women and men out there who want to change the world for the better.
I was most impressed and most encouraged by the students of the ILS Law College, who devoted an extraordinary number of volunteer hours to putting the conference on and who also presented some of their own well-developed and well presented scholarly work.
 And of course, as a wannabe feminist author and activist myself, I drew a great deal of inspiration from the incredibly knowledgeable presenters, and spent much of my time scribbling ideas for research that I would like to pursue in the near future.
For my part, I presented a paper entitled The Impact of Globalization on the Fight for Equality: How Participation in the Global Economy can Improve the Rights of Women in the Middle East and North Africa. The paper:
► First reports on the ways in which economic globalization can improve women’s lives on a macro- and a micro- scale through the creation or expansion of women’s agency and social capital (although I certainly do not dispute the past and current negative impact of globalization on women).
►Then looks at how socio-cultural and legal factors – such as gender differences with regard both to time and to resource constraints, as well as social, religious, or legal restrictions on women’s freedom of movement – can limit the positive impacts of globalization.
►Next focuses on women’s status in the MENA (Middle East and North Africa) region.

What Western Gay Rights Agenda???

U.S. Secretary of State Hillary Clinton gave a speech at the United Nations in Geneva that placed the human rights of LGBT individuals firmly at the center of American foreign policy.
There was, predictably, a backlash.
John Nagenda, an adviser to the Ugandan President, told the BBC immediately after the speech was delivered last December:

'If the Americans think they can tell us what to do, they can go to
hell.'

There were reports that Nigeria was actually increasing its proposed penalties for same-sex relationships in response to Clinton’s speech. Labaran Maku, Information Minister of Nigeria, said:

'We reserve the right to make our laws without apologies to other countries.'

Hillary Clinton’s speech was often reported alongside earlier comments by UK Prime Minister David Cameron’s threatening to link LGBT rights and aid.
So far this sounds familiar, right? But the storyline is actually more complex.
The first UN resolution on sexual orientation and human rights was introduced in April 2003 – not by the USA or a Western European state, but by Brazil, before the then-Commission on Human Rights. E/CN.4/2003/L.92, Brazil's draft resolution, reaffirmed the universality of human rights, and called upon states to promote and protect the rights of everyone regardless of sexual orientation.
The resolution went down in flames.
The Vatican and states of the Organization of Islamic Conference strenuously opposed it and engineered the Geneva equivalent of a filibuster – introducing 55 amendments and multiple points of order. (See E/CN.4/2003/L.106-110, available here.) Although a no-action motion was rejected, a motion to postpone consideration to the following year was adopted.
At the 2004 session of the Commission on Human Rights, Brazil circulated informally a revised text that included a reference to gender identity. Under enormous political pressure, neither Brazil nor any other potential co-sponsor ever brought either resolution forward for a vote.
Following the Brazil debacle, the conventional wisdom was that a voted resolution would never succeed at the only UN body dedicated to human rights. Friendly states and activists devoted their energies instead to a series of “joint statements” in New York and Geneva.
Flash forward to the spring of last year. South Africa, which had enshrined protection against sexual orientation discrimination in its first post-apartheid constitution in 1994 but had previously been extremely reluctant to assert its voice on LGBT issues in international fora, decided to step up to the plate.

Elected

Olga Venecia Herrera Carbuccia (left) of the Dominican Republic has been elected a Judge of the International Criminal Court.
So tweeted Tony Fleming, who has been re-posting the tweets of AMICC, the American Non-Governmental Organizations Coalition for the International Criminal Court.
At the risk of misinterpreting the tweets, here's what appears to have occurred:
Herrera Carbuccia (prior post) was the last person standing from GRULAC, the Group of Latin American and the Caribbean. By court rules as the 12th round began, a judge needed to be elected from this region. And she was, having fallen short by 2 votes in Round 11, even though the only other GRULAC candidate, Jorge Antonio Urbina Ortega of Costa Rica, had withdrawn.
According to her CV, Herrera Carbuccia's a Presiding Judge in the Penal Chamber of the Appellate Court in Santo Domingo, capital of the Dominican Republic, and former Dean of the Faculty of Juridical Sciences and Politics at the Universidad Nacional Pedro Henríquez Ureña in the same city. (credit for 2006 photo)
As posted here and here, the only other woman candidate in this year's ICC judicial elections, Senator Miriam Defensor Santiago of the Philippines, was elected Monday, in Round 1.
Tony tweets that Round 13 won't be held till tomorrow afternoon.
Assuming we've kept accurate count, and there are no withdrawals between now and then, 4 candidates will be left to compete for the remaining 2 vacancies: Vinod Boolell of Mauritius, a Judge on the U.N. Dispute Tribunal and former Chief International Judge in Kosovo; Bruno Cathala, a French judge and Registrar of the ICC from 2003 to 2008; Chile Eboe-Osuji of Nigeria, Legal Advisor to the U.N. High Commissioner for Human Rights and former Head of Chambers at the International Criminal Tribunal for Rwanda; and Howard Morrison of Britain, a judge on the International Criminal Tribunal for the former Yugoslavia.

ASP Updates Through the Grapevine

I am heading to the annual meeting of the Assembly of States Parties tomorrow, but some early results from today's voting.
As we've discussed (see here, here, here, here, and here), the ASP memebrs were charged with electing a new Chief Prosecutor and six judges. There is confirmation today that Fatou Bensouda (left), who emerged as a consensus candidate, has been elected as the new Chief prosecutor, as we predicted.
In terms of the first rounds of judicial elections, at the end of the day, an informal tally suggests the following results. Two judges received the necessary 70 votes:

1. Miriam Defensor-Santiago, 79, from the Philippines (List B) (right)
2. Anthony Thomas Aquinas Carmona, 72 (GRULAC, List A), from Trinidad & Tobago.

The other candidates fared as follows:

Czech Republic: Fremr, 62 votes

United Kingdom: Morrison, 51

Poland: Czapliński, 46

Domincan Republic: Herrera Carbuccia, 44

France: Cathala, 40

Costa Rica: Urbina Ortega, 36

Colombia: Cifuentes Muñoz, 35

Nigeria: Eboe-Osuji, 34

Mexico: Laynez Potisek, 33

Cyprus: Serghides, 28

Mauritius: Boolell, 27

Democratic Republic of Congo: Mindua, 12

Burkina Faso: Kam, 10

Niger: Nouhou, 7

Sierra Leone: Bankole Thompson, 3

Central African Republic: Bria, 1

The remaining slots must go to one individual representating the Group of Latin American and Carribean States (GRULAC) and one from Eastern Europe. We also need two individuals from List A, who manifest criminal law experience, as opposed to List B, which covers individuals with IHL and human rights experience. Finally, there is a slot for one more male candidate. If you recall, the Independent Panel on ICC Judicial Elections found the Mexican, Cypriot, and Costa Rican candidates to be unqualified under either list.

Elections continue tomorrow...

Independent Panel on ICC Judicial Elections

The Independent Panel on ICC Judicial Elections, about which we've blogged before (here, here and here), has recently issued a statement and report on the upcoming elections for new judges for the International Criminal Court. Richard Goldstone chairs the panel, aided by IntLawGrrls alumna Patricia Wald as Vice-Chair. (credit for photo of ICC headquarters at The Hague)

The Independent Panel, which is composed of international law and judicial experts from around the world from both civil and common law systems, assessed judicial candidates for the ICC based on the requirements of the Rome Statute. A creature of the NGO Coalition for the International Criminal Court (CICC), the Panel's goal is to provide an independent assessment of whether each judicial candidate fulfils the qualifications prescribed by Article 36 of the Rome Statute. Most importantly, this provision provides that:

(a) The judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices.

(b) Every candidate for election to the Court shall:

(i) Have established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings [List A]; or

(ii) Have established competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court [List B]...

The provision also aims to ensure geographic and equitable gender representation. On the latter criteria, we noted earlier that no women were originally nominated for a spot on the ICC bench. Moreover, there were very few individuals designated as qualified pursuant to List B. In the final list of nominations, two women appear:

• Miriam Defensor-Santiago (right) of the Philippines (prior IntLawGrrls posts); and
• Olga Venecia Herrera Carbuccia of the Dominican Republic.

In terms of the Report's conclusions, it is clear that this Panel was not destined to be a rubber stamp. The Panel sought additional information where candidate dossiers were incomplete and reviewed outside information in addition to the materials provided by the Assembly of State Parties (ASP) Secretariat and the CICC (including a detailed questionnaire). On the basis of this work, they reached the following conclusions:

Qualified List A:

Rosolu John Bankole Thompson (Sierra Leone)

Vinod Boolell (Mauritius)

Modeste-Martineau Bria (Central African Republic)

Bruno Cathala (France)

Eduardo Cifuentes Munoz (Colombia)

Chile Eboe-Osuji (Nigeria)

Robert Fremr (Czech Republic)

Olga Venecia Herrera Carbuccia (Dominican Republic)

Antoine Kesia-Mbe Mindua (Democratic Republic of Congo)

Howard Morrison (United Kingdom)

Hamani Mounkaila Nouhou (Niger)

Qualified List B:

Wladyslaw Czaplinski (Poland)

Miriam Defensor-Santiago (Philippines)

Unqualified

Ajmi Bel Haj Hamouda (Tunisia) - List A (for lack of necessary relevant experience in criminal law proceedings)

Javier Laynez Potisek (Mexico) - List A (for lack of direct professional experience in criminal law)

George A. Serghides (Cyprus) - List A (for lack of the necessary relevant experience in criminal law proceedings)

Jorge Antonio Urbina Ortega (Costa Rica) - List B (for lack of experience in either humanitarian law or human rights)

All the dossiers can be found here.

In reaching these conclusions, the Panel made clear:

The Panel does not endorse, oppose or rank candidates. The Panel's determination of 'Qualified' or 'Not Qualified' for each candidate is based strictly on the requirements of the Rome Statute.

The Panel also made a number of important suggestions regarding the nomination process, such as that the Assembly of States Parties:

• work with governments to ensure that their nomination packets are complete and comply with the Statute
• consider what to do about potential conflicts of interest involving elected judges who are not immediately called for service
• address the legal and policy questions around the fact that there maybe two judges of the same nationality on the bench if outgoing judges are retained for continuing proceedings
• consider utilizing age restrictions or health assessments to ensure that candidates will be able to serve their full terms
  
• adopt a voluntary code of conduct for ICC judges to ensure they do not make remarks in public about legal issues on which they may be required to rule
• establish its own internal expert Panel to vet candidates

Our colleague Bill Schabas adopts a critical stance toward the results, arguing that the review was too mechanistic and formulaic. He also takes issue with the conclusion that Judge Bankole Thompson, a judge on the Special Court for Sierra Leone, is "qualified" in light of his dissent in the CDF case (beginning at p. 21339 here, and continuing here). In it, he conflated the jus ad bellum and the jus in bello to argue that members of the goverment-supported Civil Defence Forces should be exonerated, not withstanding their involvement in international crimes, in light of the fact that they were fighting a "just war." Under the circumstances, Professor Schabas would choose the Cypriot family law judge over someone "with such a misguided view of personal responsibility for atrocity crimes."
The elections to fill the 6 open spots are scheduled to take place during the next meeting of the Assembly of States Parties, December 12-21, 2011, in New York. It promises to be interesting ...

...& African Union endorses Bensouda

Among many International Criminal Court-related developments deserving note: following an Executive Council meeting this summer in Malabo, Equatorial Guinea, the African Union made public its support for Fatou Bensouda (left) to be the ICC's Prosecutor.
The Assembly of States Parties is slated to elect a successor to the court's 1st Prosecutor this December, as we've posted, and Gambia-born Bensouda is among the candidates under consideration by an Assembly search committee.
Since the Assembly elected her Deputy Prosecutor in 2004, Bensouda (prior IntLawGrrls posts) has been in charge of the Prosecution Division of the Office of the Prosecutor. Previously, she'd served been a private-sector and government attorney; positions included Solicitor General and Legal Secretary, as well as Attorney General and Minister of Justice, for the Republic of The Gambia. She'd also practiced at the International Criminal Tribunal for Rwanda, where she was Senior Legal Advisor and Head of The Legal Advisory Unit.
At midsummer, the Executive Council of the African Union announced (p. 29) that it

APPROVES the following candidatures:
Ms. Fatou Bomm Bensouda of The Gambia as the sole African candidate for election to the post of Prosecutor at the International Criminal Court (ICC) ...

The endorsement came "in conformity with African Union procedures for consideration and determination of African candidatures within the international system," the notice continued. Then followed endorsements for other posts, among them Justice Vinod Boolell of Mauritius, a jurist with considerable human rights and humanitarian law experience, for an ICC judgeship.
ICC-watchers await more election news.

Toward justice for Irish Magdalenes

(Delighted to welcome back alumna Siobhán Mullally, who contributes this guest post)

The UN Committee Against Torture has handed down its Concluding Observations on Ireland’s initial report under the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The Committee expressed its grave concern at the State’s failure to protect girls and women who were involuntarily confined between 1922 and 1996 in the Magdalene Laundries. (credit for early 20th C. photo above right of an Irish Magdalene "asylum")
Ireland’s Magdalene Laundries and their history of abuse, neglect and human rights violations over many decades was the subject of the award winning 2002 film, The Magdalene Sisters, itself inspired by the 1998 documentary Sex in a Cold Climate. The plight of the women and girls confined in the laundries, operated by four Roman Catholic religious orders in Ireland in ten separate locations, had gained widespread media attention with the discovery of 133 graves at the High Park Convent in 1993.
The 2002 Residential Institutions Redress Act, which sought to address the abuse and neglect suffered by Irish children in industrial schools and other state-licensed residential institutions, excluded the Magdalene Laundries from its scope. Since then the Justice for Magdalenes Campaign, and more recently the National Women’s Council of Ireland, have called for:
► A full independent inquiry into the abuses endured by women and girls in the Laundries; and
► The establishment of a restorative justice and reparations scheme.
Until recently, their calls had met with repeated disclaimers of responsibility from the Irish Government, as Government ministers denied ‘direct State involvement’ in referrals to the laundries and in their operations. The position of the Government, as recently as 2009, was that the laundries were 'privately owned and operated and did not come within the responsibility of the State.' They were not, the Government argued, subject to state regulation or supervision and so were not brought within the scope of earlier redress schemes. This position has been gradually revised, with increasing acceptance of the State’s direct role in referrals to the Laundries.
The public / private divide evident in the State’s position was questioned by the Irish Human Rights Commission in its assessment report in 2010, which noted that women and girls were, formally (through the Courts) and informally (by State and non-state actors), referred to the Laundries and involuntarily confined there.
Many of those referred were unmarried mothers whose children were placed for adoption. As early as 1970, the Kennedy Report on the Reformatory and Industrial Schools System found that

‘girls considered by parents, relatives, social workers, welfare officers, clergy or Gardai to be in moral danger or uncontrollable’

were placed in the Laundries. Those persons confined included minors and other vulnerable persons including some with intellectual disabilities.
The specific question of state responsibility was addressed by the Committee Against Torture in Concluding Observations issued in early June, at the end of the Committee's 46th session. Video clips of its hearing on Ireland -- including one of questions put to the State by IntLawGrrls alumna Felice Gaer (left) -- may be seen here. (The 46th session also produced Concluding Observations on reports from Finland, Ghana, Kuwait, Mauritius, Monaco, Slovenia, and Turkmenistan.)
In its Concluding Observations on Ireland, the Committee notes that the State failed to regulate the operations of the Laundries or to inspect them, in circumstances where it is alleged that physical, emotional abuses and ill-treatment occurred amounting to breaches of the Convention (articles 2, 12, 13, 14 and 16).
The Committee called on the Government to institute prompt, independent and thorough investigations into all allegations of torture, and other cruel, inhuman and degrading treatment or punishment that were allegedly committed in the Magdalene laundries and to ensure that all victims obtain redress and have ‘an enforceable right to compensation including the means for as full rehabilitation as possible.’
The Committee’s observations and findings reflect the success and continuing advocacy of the Justice for Magdalenes campaign, represented at the Committee's NGO hearings by Maeve O’Rourke (left), Harvard Global Human Rights Fellow. (photo credit)
A key issue highlighted by the Campaign is the State’s responsibility for continuing violations of the Convention arising from the failure to establish an inquiry into the allegations made. (The last Magdalene Laundry in Ireland closed in 1996. Ireland ratified the Convention in 2002.)
The failings of the Irish State to adequately protect children in residential institutions in Ireland is now well documented.
The Report of the Commission to Inquire into Child Abuse (the Ryan Report), published in 2009, documented the ‘terrible wrongs’ that were perpetrated on children at risk and the failings of the State to adequately protect children in its care.
Emily O’Reilly (below right) (photo credit), Ireland's 1st woman Ombudsman, commenting on the publication of the Ryan Report, noted:

'If things were hidden, they were hidden in clear sight [...] the incarcerated Magdalene women in their Madonna blues and whites who walked the open streets of towns and villages in church processions. Judges knew, lawyers knew, teachers knew, civil servants knew, childcare workers knew, gardaí knew. Not to know was not an option.'

The Government’s denial of responsibility for abuses occurring in the Magdalene Laundries had been challenged by a November 20101 report of the Irish Human Rights Commission calling on the Government to establish an independent inquiry. The Commission’s report documents a range of human rights violations that may have occurred in the Magdalene Laundries, for which the State could be accountable. These include:
► Forced or compulsory labour;
► Servitude;
► Inhuman and degrading treatment; and
► Arbitrary detention.
Further questions arise as to end-of-life issues, procedures followed in burials, exhumation of graves and cremations. An ongoing question concerns the information and tracing services provided to the children of women in the Laundries who were placed for adoption, often through irregular arrangements. Many have complained of the lack of cooperation from the religious orders than ran the Laundries and adoption services.
The Irish Government has now responded to the Committee's Concluding Observations.
On June 14, the Government announced the establishment of an interdepartmental Working Group, with an independent Chairperson, to

‘clarify any State interaction with the Magdalene Laundries and to produce a narrative detailing such interaction.’

The Working Group will have three months to produce an initial report.
The Government’s move has been generally welcomed, though many have expressed regret at the absence of a formal apology at this stage.
This October, the UN Human Rights Council will review Ireland for the first time through the Universal Periodic Review mechanism. This upcoming review provides the Government with an opportunity to demonstrate its commitment to finally remedying the historical injustices and abuse encountered by the Magdalene women and girls.