Opinio Juris

"The obstacles have been lifted," chief prosecutor Luis Moreno-Ocampo told journalists on the sidelines of a ceremony in The Hague to mark the 10th anniversary of the Rome Treaty that led to the court's creation.

Lubanga's trial would be the ICC's first.

Court president Philippe Kirsch said the main point of contention, over the prosecution's alleged abuse of a confidentiality allowances, should be resolved "shortly".

On June 13, judges imposed an indefinite stay on proceedings, due to have started last Monday, after finding that prosecutors had wrongly withheld evidence, notably from the United Nations, from Lubanga's lawyers.

This "misuse" inhibited Lubanga's ability to prepare a proper defence, they said.

Lubanga subsequently applied for release, and on Wednesday the ICC ordered him to be freed from detention. But the prosecution lodged an immediate appeal that suspended Lubanga's release.

"The UN has sent a letter authorising the other parties to have access to the documents," Moreno-Ocampo said Thursday, reiterating that he was confident the trial would kick off by autumn.

30. As just set out, the Chamber's Decision stayed the proceedings sine die because of the present impossibility of trying the accused fairly. It follows that the detention of the accused cannot be justified in order to ensure his appearance at trial or to safeguard the investigation, because the trial (which was the result of the investigation) has been stayed. Furthermore, in the absence of the prospect of a trial, the accused cannot be held in custody or subjected to provisional release as purely preventative measures to deter him from committing further crimes.

35. Trial Chamber I orders the release of the accused, but since by Rule 154 of the Rules an appeal may be filed no later than 5 days from the date upon which the party filing the appeal is notified of the decision, this order shall not be enforced until the expiry of the 5 day time limit, and, furthermore, if an appeal is filed within the 5 day time-limit against the order granting release and if a request is made in the appeal for suspensive effect, the accused shall not leave detention until the Appeals Chamber has resolved whether or not the effect of the order granting release is to be suspended.

36. It is to be noted, finally, that by Rule 185 of the Rules, an order releasing the accused shall only be put into effect after arrangements have been made for his transfer to a State that is obliged to receive him. It follows that these arrangements should not be implemented until the 5 day time-limit, set out above, has expired.

Italian Foreign Minister Franco Frattini said Monday the government would press ahead with plans to fingerprint ethnic Roma, including children - a move branded as discriminatory by European Union officials. Frattini - the EU's top justice official before he joined Prime Minister Silvio Berlusconi's cabinet - was commenting on remarks made Sunday by Interior Minister Roberto Maroni, who described critics of the plan as "hypocrites."

"I think Minister Maroni has done well to continue on the path he has outlined," Frattini said. "We are not talking of raids (against Roma communities) or anything of the sort, but a measure to identify those living in our country."

"These things are being done by many other countries in Europe without causing any scandal, and as such, they should also be done here," Frattini added.

The measure, according to Frattini, would serve to protect Roma children, who often live in shanty settlements and are not registered to attend school.

Maroni, who is from the anti-immigration Northern League wants to include the fingerprinting in a security package designed to crack down on illegal immigrants and child beggars, many of whom are ethnic Roma (colloquially known as gypsies).

The plan has drawn widespread criticism including from Catholic and United Nations officials, human rights groups and Italian opposition parties.

Last week a spokesman for the European Commission, the EU executive, said member states singling out an ethnic group for fingerprinting would be breaking EU rules.

In a correspondence from Nicolas Michel, the UN Under-Secretary-General for Legal Affairs, the United Nations proposed that the judges go to the Peace Palace in The Hague, therefore on "UN territory", to consult the documents.

They would not be allowed to take notes, or to record information during their consultation. Thereafter, they could indicate certain pieces of evidence for which the prosecutor would be invited to make a summary. The judges could then compare the summary with the original evidence and decide to reveal these summaries to the defence.

During the hearing of 24 June, Catherine Mabille, the lawyer for Lubanga, has from the start specified that "the defence will not accept summaries, which cannot be evidence".

"If you accept", she declared, that means that the prosecutor signs agreements with the United Nations, and that the UN will dictate to the judges, to justice, what it can hear, what can be said or not."

The NZ$420m ($319m) agreement transfers ownership of nine forests - covering 435,000 acres (176,000 hectares) of land - in the central North Island.

Hundreds of Maori, some in traditional dress, thronged parliament to witness the signing of the accord.

"It's a historic journey we are on," Prime Minister Helen Clark said.

"We came into politics to address injustice and seek reconciliation. Thank you for walking that road with us on this historic day," she added, according to AP news agency.

The settlement - the largest single deal between the government and Maori tribes - seeks to address grievances dating back to the 1840 Treaty of Waitangi.

The treaty guaranteed the indigenous Maori people use of their land and resources in return for ceding sovereignty to the British crown. But land seizures and ownership breaches followed.

The forests signed over are mainly large commercial pine plantations, generating about NZ$13m a year in rents.

The settlement also hands over rents that have accumulated on the land since 1989.

Between them, the seven tribes or iwi include more than 100,000 members. They will manage the land collectively, setting up a holding company structure and forestry management structure.

The Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs who have not become members of the Confederation cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty which the said Confederation or Individual Chiefs respectively exercise or possess, or may be supposed to exercise or to possess over their respective Territories as the sole Sovereigns thereof.

Ko nga Rangatira o te Wakaminenga me nga Rangatira katoa hoki ki hai i uru ki taua wakaminenga ka tuku rawa atu ki te Kuini o Ingarani ake tonu atu-te Kawanatanga katoa o o ratou wenua.

The principle of government or the kawanatanga principle

Article 1 gives expression to the right of the Crown to make laws and its obligation to govern in accordance with constitutional process. This sovereignty is qualified by the promise to accord the Māori interests specified in article 2 an appropriate priority. This principle describes the balance between articles 1 and 2: the exchange of sovereignty by the Māori people for the protection of the Crown. It was emphasised in the context of this principle that ‘the Government has the right to govern and make laws’.

The principle of self-management (the rangatiratanga principle)

Article 2 guarantees to Māori hapū (tribes) the control and enjoyment of those resources and taonga that it is their wish to retain. The preservation of a resource base, restoration of tribal self-management, and the active protection of taonga, both material and cultural, are necessary elements of the Crown’s policy of recognising rangatiratanga. The Government also recognised the Court of Appeal’s description of active protection, but identified the key concept of this principle as a right for iwi to organise as iwi and, under the law, to control the resources they own.

The principle of equality

Article 3 constitutes a guarantee of legal equality between Māori and other citizens of New Zealand. This means that all New Zealand citizens are equal before the law. Furthermore, the common law system is selected by the Treaty as the basis for that equality, although human rights accepted under international law are also incorporated. Article 3 has an important social significance in the implicit assurance that social rights would be enjoyed equally by Māori with all New Zealand citizens of whatever origin. Special measures to attain that equal enjoyment of social benefits are allowed by international law.

The principle of reasonable cooperation

The Treaty is regarded by the Crown as establishing a fair basis for two peoples in one country. Duality and unity are both significant. Duality implies distinctive cultural development while unity implies common purpose and community. The relationship between community and distinctive development is governed by the requirement of cooperation, which is an obligation placed on both parties by the Treaty. Reasonable cooperation can only take place if there consultation on major issues of common concern and if good faith, balance, and common sense are shown on all sides. The outcome of reasonable cooperation will be partnership.

The principle of redress

The Crown accepts a responsibility to provide a process for the resolution of grievances arising from the Treaty. This process may involve courts, the Waitangi Tribunal, or direct negotiation. The provision of redress, where entitlement is established, must take account of its practical impact and of the need to avoid the creation of fresh injustice. If the Crown demonstrates commitment to this process of redress, it will expect reconciliation to result.

A WorldPublicOpinion.org poll of 19 nations finds that in 14 of them most people favor an unequivocal rule against torture, even in the case of terrorists who have information that could save innocent lives. Four nations lean toward favoring an exception in the case of terrorists.

However, large majorities in all 19 nations favor a general prohibition against torture. In all nations polled, the number saying that the government should generally be able to use torture is less than one in five.

On average across all nations polled, 57 percent opt for unequivocal rules against torture. Thirty-five percent favor an exception when innocent lives are at risk. Just 9 percent favor the government being able to use torture in general.

The four publics that favor an exception for terrorists when innocent lives are at risk include majorities in India (59%), Nigeria (54%), and Turkey (51%), and a plurality in Thailand (44%).

Support for the unequivocal position was highest in Spain (82%), Great Britain (82%) and France (82%), followed by Mexico (73%), China (66%), the Palestinian territories (66%), Poland (62%), Indonesia (61%), and the Ukraine (59%). In five countries either modest majorities or pluralities support a ban on all torture: Azerbaijan (54%), Egypt (54%), the United States (53%), Russia (49%), and Iran (43%). South Koreans are divided.

[snip]

The survey presented respondents with an argument in favor of allowing the torture of potential terrorists who threaten civilians: "Terrorists pose such an extreme threat that governments should now be allowed to use some degree of torture if it may gain information that would save innocent lives." In fourteen nations, a majority or plurality rejected this argument in favor of the unequivocal view: "Clear rules against torture should be maintained because any use of torture is immoral and will weaken international human rights standards against torture."

Only India had even a modest plurality favoring an exception for terrorists in 2006. In the current survey three countries (India, Nigeria, and Turkey) have a majority supporting such exceptions, Thailand has a plurality and South Korea is divided.

Four countries included in both surveys show dramatic increases in support for allowing the torture of terrorists: India (from 32% to 59%), Nigeria (39% to 54%), Turkey (24% to 51%), and South Korea (31% to 51%). Substantial increases also occurred in Egypt (25% to 46%) and the United States (36% to 44%).

At the same time there have been equally dramatic increases among those favoring a complete ban on torture. Support has grown substantially in Mexico (rising from 50% to 73%), Spain (65% to 82%), China (49% to 66%), Indonesia (51% to 61%), Britain (72% to 82%), and Russia (43% to 49%).

On average, support for an exception has gone up six points while support for an unequivocal rule has gone up two points. Thus the net increase in favor of an exception is just four points.

Europe's top rights body, the Council of Europe, on Friday voiced "deep concern" at a series of recent attacks against the Roma gypsies and immigrants and their treatment in Italy.

The attacks, the worst of which involved the torching by a local mob last month of a gypsy camp outside Naples have already drawn criticism from the European Union and from rights groups. Copycat attacks followed in other cities.

Police arrested several hundred 'undocumented' immigrants last month in a controversial series of raids on shanty towns across Italy.

"Roma and immigrants have been the subject of violent racist attacks and entire communities have been held responsible for criminal acts committed, or allegedly committed, by individuals from these communities," the Council of Europe's racism and xenophobia monitoring body (ECRI) said in a statement.

"In the context, ECRI particularly regrets the persistent racist and xenophobic discourse by some Italian politicians, even at the highest levels, and in the media," the statement continued.

The new conservative government in Italy, led by prime minister Silvio Berlusconi vowed to clamp down on illegal immigration. Special Roma Gypsy commissioners have been appointed in several of the country's major cities.

Under a planned government decree, EU citizens - which would include Romanian Gypsies - must have adequate housing and regular incomes to stay in Italy for more than three months.

The decree would also make it easier to expel illegal immigrants.

"The Italian authorities are taking measure whose conformity with national and international human rights standards is questionable," said ECRI.

A survey earlier this month by Italian research institute Demos-Coop, showed eight out of ten Italians want Roma Gypsy camps dismantled.

A poll last month by Italian daily La Repubblica found that 68 percent of Italians want to deal with the "Roma Gypsy problem" by expelling all of them.

Local activists in the northeastern Italian city of Mestre and politicians from the anti-immigrant Northern League are protesting the construction of a settlement for Sinti Gypsies.

Northern League parliamentarian Corrado Callegari and local party councillor Alberto Mazzonetto have blocked access to the camp, preventing building from getting underway.

The protest began more than three weeks ago, when a small group of protesters started gathering daily at the entrance to the building site.

The protesters are demanding a plebiscite on the planned Sinti Gypsy settlement which will include houses and a caravan park. They have also staged protests at local Gypsy camps.

The local council intends to accommodate some 40 Sinti Gypsy families at the site, which will cost 2.8 million euros to build.

The Northern League claims the money should be spent on shelter for homeless Italian citizens from the Mestre-Veneto area who have asked the local council for help. The Sinti Gypsies should not get preferential treatment and must wait their turn to be housed, the Northern League argues.

Bowing to pressure, the mayor of Venice, Massimo Cacciari had halted building work at the planned Sinti Gypsy settlement, but has promised this will soon re-start.

Duties and powers of the Prosecutor with respect to investigations
[...]
3. The Prosecutor may:
[...]
(e) Agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents.

64. The prosecution is unable to disclose any of these items of evidence to the accused, in full or in a redacted form. Furthermore, save for a limited number of documents (32) that have been supplied to the Chamber by six unidentified information-providers in redacted form, the prosecution (given the terms of the agreements) is unable to show them to the Chamber. This is because the information-providers do not consent to the judges viewing copies of the original materials (in the majority of instances the Chamber cannot be shown the documents at all), notwithstanding an undertaking which has been given by the judges to uphold the confidential status of the documents or information, unless consent is given by the information-providers for their wider distribution.

72. The prosecution has given Article 54(3)(e) a broad and incorrect interpretation: it has utilised the provision routinely, in inappropriate circumstances, instead of resorting to it exceptionally, when particular, restrictive circumstances apply. Indeed, the prosecution conceded in open court that agreements reached under Article 54(3) (e) have been used generally to gather information, unconnected with its springboard or lead potential.

[snip]

73. Therefore, although the Chamber does not have the information necessary to analyse the circumstances in which each of the individual documents was supplied to the prosecution, the overall picture is clear: the prosecution's general approach has been to use Article 54(3)(e) to obtain a wide range of materials under the cloak of confidentiality, in order to identify from those materials evidence to be used at trial (having obtained the information provider's consent). This is the exact opposite of the proper use of the provision, which is, exceptionally, to allow the prosecution to receive information or documents which are not for use at trial but which are instead intended to "lead" to new evidence. The prosecution's approach constitutes a wholesale and serious abuse, and a violation of an important provision which was intended to allow the prosecution to receive evidence confidentially, in very restrictive circumstances. The logic of the prosecution's position is that all of the evidence that it obtains from information-providers can be the subject of Article 54(3)(e) agreements.

88. Although the prosecution, as a first stage in this procedure, must make the initial decision as to the exculpatory value or effect of any piece of evidence under Article 67(2) ("evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence"), once this threshold is passed and it is accepted that the material has, potentially, an exculpatory effect, only the Chamber can make a decision on non-disclosure if exceptional circumstances so require. If it is proposed that evidence of this kind should be withheld, it is to be put before the judges in its original form and in its entirety. The ultimate responsibility for securing justice and ensuring fairness has been given to the Chamber (Article 64(2) of the Statute) and these responsibilities cannot be delegated by, or removed from, the judges. In this case, the Bench has been prevented from assessing for itself the impact on the fairness of these proceedings should the evidence remain undisclosed,142 and the approach of the prosecution means, inter alia, that for the purposes of Article 67(2), the Chamber could never, "in case of doubt", make a decision (because it will be unable to view the underlying material).

91. This is an international criminal court, with the sole purpose of trying those charged with the "most serious crimes of concern to the international community as a whole" and the judges are enjoined, in discharging this important role, to ensure that the accused receives a fair trial. If, at the outset, it is clear that the essential preconditions of a fair trial are missing and there is no sufficient indication that this will be resolved during the trial process, it is necessary - indeed, inevitable - that the proceedings should be stayed. It would be wholly wrong for a criminal court to begin, or to continue, a trial once it has become clear that the inevitable conclusion in the final judgment will be that the proceedings are vitiated because of unfairness which will not be rectified. In this instance, in its filing of 9 June 2008, the prosecution went no further than raising the possibility that the Chamber may be provided at some stage in the future with no more than incomplete and insufficient materials. There is, therefore, no prospect, on the information before the Chamber, that the present deficiencies will be corrected.

The Supreme Court yesterday upheld the constitutionality of the law allowing for the detention of "unlawful combatants," which Israel uses to hold Hezbollah fighters.

Supreme Court President Dorit Beinisch and Justices Edmond Levy and Ayala Procaccia rejected an appeal by two Gazan Palestinians who were detained after their involvement in terror activity on behalf of Hezbollah was proved.

The Unlawful Combatants Law authorizes the state to detain foreign nationals who belong to terror organizations or have participated directly or indirectly in hostile actions against the State of Israel.

Its goal is to prevent their continued activities.

Beinisch wrote in the verdict that although the law involves substantial harm and the suppression of personal freedom through administrative detention, the harm is proportional.

She noted that it was passed in a "harsh security reality" that justifies the violation of to personal freedom.

"The law's harm to the constitutional right to personal freedom, although substantial, is no greater than necessary," Beinisch wrote.

"Therefore, we have concluded that the law meets the criteria of the limitations ruling and there is no constitutional grounds to intervene in it."

Yet how powerful can this judicial review be? Not only does the Illegal Combatants law create a new category not recognized in international law, it reverses the burden of proof. Once an order is signed by the Chief of Staff, the burden of proof is on the defendant: he has to prove to the court that he is not an enemy combatant. Moreover, he is expected do this when the charge against him is based solely on classified evidence, which he is barred from examining and is therefore unable to challenge. One of the defendants told the court he was arrested in his house, for no reason, and added that if he were exposed to the evidence against him he would be able to respond. But that, of course, did not happen. After the defense lawyers argued their case, they and their clients had to exit the courtroom, leaving the security services’ representatives to reveal their secret evidence to the judge.

Navy Lieutenant Commander Bill Kuebler said in a statement sent to reporters he considers the notes crucial to the defense of his client, Canadian Omar Khadr, during his upcoming murder trial by a special military tribunal at the US naval base.

Kuebler said the instructions were handed down to interrogators from the US Department of Defense as part of a standard operating procedure or "SOP" directive that he obtained from prosecutors last week.

If they were carried out, US interrogators may have "routinely destroyed evidence" that might have been used to defend the Khadr and other detainees, Kuebler charged.

"If handwritten notes were destroyed in accordance with the SOP, the government intentionally deprived Omar's lawyers of key evidence with which to challenge the reliability" of alleged confessions made to military interrogators, Kuebler said.

He cited in particular one passage of the directive to military interrogators stating that "this mission has legal and political issues that may lead to interrogators being called to testify."

"Keeping the number of documents with interrogation information to a minimum can minimize certain legal issues," the policy statement said, according to Kuebler.

The first national demonstration of Gypsies brought hundreds of people to the capital Sunday to protest recent episodes of racism in Italy that have targeted Roma and Sinti people, as they prefer to be called.

"We're being used as scapegoats" to gain political advantage, said Stoyanovic Vojislav, a Serbian Roma and one of the organizers of the colorful demonstration, which involved about a dozen organizations.

Roma communities and illegal immigrants are increasingly blamed for rising crime in Italy, although statistics do not reflect a marked change over previous years.

The demonstration, Vojislav said, will make Italians understand "that the Roma are very different from how we are depicted" in the media and by some center-right politicians. More than half of the estimated 160,000 Roma in this country are Italian citizens, while most of the remainder are from Romania - since 2007 part of the European Union - or from the former Yugoslavia. But they are usually treated as foreigners.

"This is the first time in six centuries that we are demanding our rights," said Santino Spinelli, another organizer, who is a popular Gypsy musician and a professor of Roma culture at the University of Trieste. "We are demanding to be integrated because we are citizens like any others."

[snip]

Silvio Berlusconi's center-right government has promised tough legislation that would allow the police to shut down unauthorized Roma camps. The government also wants to carry out a census of people living in the camps. Interior Minister Roberto Maroni said last week that the issue of the Roma camps would be resolved by the end of the year.

Many of the demonstrators on Sunday wore black triangles, like those that the Nazis forced the Roma to wear in concentration camps.

"Today is a great day for the Rom," said Gina, a Roma from Romania who did not want to give her last name. "Remember that if you forget history, it can repeat itself."

Chances of genocide suspect and former Rwandan Interhamwe militia leader Yussuf Munyakazi of being tried on home ground were diminished on Wednesday when the United Nations war crimes tribunal rebuffed opposition application to hold the trial in the small east African state.

Mr Munyakazi is facing charges of the 1994 Rwanda genocide in which UN estimates show that over 800,000 people, mostly ethnic Tutsis and moderate Hutus were allegedly murdered by his armed forces between April and July.

The 73 year-old former farmer and businessman was arrested in the neighbouring Democratic Republic of Congo (DRC) in 2004, prior to being brought before the International Criminal Tribunal for Rwanda (ICTR).

He allegedly masterminded and in some instances, actually participated in the killing of the Tutsis who had sought sanctuary in numerous churches in Rwanda’s Bugarame commune.

• One judge would have presided over Munyakazi's trial, making the court particularly susceptible to political pressure from the Rwandan government — which has a long history of undermining the independence of the judiciary. (A panel of three judges, the Trial Chamber noted, would likely satisfy Rule 11bis. At present, however, Rwandan law does not provide for such panels.)


• The Rwandan government has consistently harassed, arrested, detained, and sometimes even killed witnesses for the defense, making it unlikely that Munyakazi would have the ability to secure and examine witnesses "under the same conditions as witnesses against him," a right guaranteed by Article 20 of the ICTR Statute. Moreover, the Trial Chamber noted that the Rwandan government has done nothing to help defendants in Rwandan courts obtain witnesses who are located outside of Rwanda.