Call for Applications: Challenges to International Criminal Justice Summer Academy Northumbria University, Newcastle 12-16 June 2017

Northumbria Law School is pleased to announce its 1st Summer Academy on Contemporary Challenges to International Criminal Justice(Law & Criminology) will take place in Northumbria University, Newcastle from 12-16 June 2017.

This novel summer academy provides a unique opportunity for participants to acquire in-depth knowledge on the most pressing issues facing the international criminal justice system from the leading scholars and practitioners in the field. Speakers will share their expertise and experience on a varied range of topics to encourage and inspire postgraduate research in law and criminology.

 The themes of the summer academy are:

  • Challenges to international criminal justice and the future of the International Criminal Court
  • Challenges to international cooperation in fighting transnational and international crimes
  • Challenges in prosecuting terrorism and religiously motivated violence
  • Challenges in ensuring effective redress for victims in post-conflict situations
  • Ecocide as a challenge to justice and security
  • Rule of law reform in post conflict countries

The list of distinguished speakers:

Professor William Schabas (Middlesex University/Leiden University)  Judge Howard Morrison (International Criminal Court) Judge Professor Wolfgang Schomburg (International Criminal Tribunal for the former Yugoslavia 2001-2008, Durham University)  Judge David Baragwanath (Special Tribunal for Lebanon)  Judge Professor Philip Weiner (Extraordinary Chambers in the Courts of Cambodia) Professor Roger S. Clark (Rutgers Law School) Mr Karim A.A. Khan, QC (Temple Garden Chambers, International Defence and Victims Counsel & former Prosecutor) Dr. Rod Rastan (Legal Adviser, Office of the Prosecutor, International Criminal Court)  Professor Tim Wilson (Northumbria University) – Professor Roger Clark (Rutgers Law School)  Dr. Mohamed El Zeidy (Legal Officer, Pre-Trial Chamber II, International Criminal Court) Dr. Tanya Wyatt (Northumbria University) Dr. Noelle Higgins (Maynooth University)  Professor Michael Rowe (Northumbria University)  Mr. Patrick Schneider (EU Office of the Special Representative for Bosnia and Herzegovina) Dr. Michael Kearney (Sussex University)  Mr. Krmanj Othman (KRG High Committee for the Recognition of Genocide against Yezidi Kurds and other minorities) ­ Dr. Patricia Hobbs (Brunel University) – Dr. Hakeem Yusuf (University Birmingham) Dr. Elena Katseli (Newcastle University)  Dr. Jamie Harding (Northumbria University) – Dr. Ibrahim Shaw (Northumbria University)  Professor Nigel South (University of Essex) Dr. Damien Short (University of London) Professor Chrisje Brants (Northumbria University) Professor Liz Campbell (Durham University) – Dr. Mohamed ‘Arafa (Indiana University) – Ms. Gemma Davies (Northumbria University) – Dr. David McGrogan (Northumbria University).

This event is a wonderful opportunity for international lawyers, legal interns, academics, and present and future postgraduate students to meet eminent scholars and practitioners in the field of international criminal justice as well as like-minded colleagues from all over the world.

For further information and to register please visit www.northumbria.ac.uk/about-us/news-events/events/2017/06/northumbria-university-summer-academy-in-contemporary-challenges-to-international-criminal-justice/ or email amina.adanan@northumbria.ac.uk. Participants may register to attend individual sessions or the whole event. Please note that places are limited and the deadline for ‘early bird’ registration is Monday 17 April 2017.

Call for Applications: Challenges to International Criminal Justice Summer Academy Northumbria University, Newcastle 12-16 June 2017

NUI Galway to Host Conference Entitled 'Spending Socially- Achieving Social Value Through Public Procurement'

SSNUI Galway will host a conference entitled ‘Spending Socially- Achieving Social Value Through Public Procurement’ on Monday, June 15, 2015 from 10:00 AM to 4:00 PM.  This event will bring together, for the first time in Ireland, a unique range of experts in the fields of public procurement and the social economy. The aim is to explore the potential uses of social clauses in public contracts and to encourage a discussion on the social benefits that can be achieved through targeted government spending. This will support capacity building with respect to tendering processes, in particular for those interested in promoting social enterprises that focus on creating employment opportunities for marginalized groups.

Derek Nolan TD, will open the event and speakers will include members from the Office for Government Procurement, the Strategic Investment Board, (NI), the NOW Project, (NI), and the ‘Ready for Business’ Organisation, (Scotland), and many more experts.

The conference will explore the procurement landscape in Ireland with a view to understanding how social enterprises could be supported to offer their services and bid for tenders.  The Conference report will be presented to Minister Brendan Howlin, TD, Minister for Public Expenditure and Reform on later in June.

To find out more and register online please see here.

NUI Galway to Host Conference Entitled 'Spending Socially- Achieving Social Value Through Public Procurement'

Business Said Yes! To Marriage Equality – But Will the Circle be Widened?

 

irelandrainbow_blog_263We are delighted to welcome the latest in a series of cross-posts by Dr Shane Darcy from the Business and Human Rights in Ireland Blog.  The Business and Human Rights in Ireland Blog is dedicated to tracking and analysing developments relating to business and human rights in Ireland. It aims to address legal and policy issues, as well as highlighting human rights concerns raised by the activities of Irish companies or multinational corporations based in Ireland. The blog is run by Dr Shane Darcy who is a lecturer at the Irish Centre for Human Rights, National University of Ireland Galway.

Ireland has voted overwhelmingly to extend civil marriage to same-sex couples. In doing so, it became the first country in the world to pave the way for the introduction of marriage equality by way of a public referendum. It was an historic occasion without question, hugely important for the LGBT community and for the advancement of human rights and equality more generally, and something to be very proud of.

Many factors contributed to the YES vote succeeding – the commitment and enthusiasm of campaigners, a high voter turnout, the #hometovote phenomenon, social media, endorsements from all the political parties, as well as what might be an ever-growing support for human rights and equality more generally by people in Ireland. Another factor that is worth considering was the backing of the YES campaign by a number of businesses, both small and large.

Support for the YES side came from some of the world’s largest social media and technology companies, a great number of which have their European Headquarters in Ireland. This included Google, Microsoft, Facebook and e-Bay. Twitter also backed the YES campaign for marriage equality, with Stephen McIntyre, Managing Director Twitter Ireland explaining that:

Twitter is supporting a Yes vote because of our company’s commitment to inclusion and the strong business case for marriage equality. We encourage other companies to do likewise.

Ben & Jerry’s supported the YES side by rebranding one its ice-creams. The position adopted by many of these multinationals replicates the stance they have already taken regarding marriage equality in the United States, where dozens of companies have argued that recognition of same-sex marriage is a “business imperative”.

It wasn’t just the large multinational companies though. Many small and medium sized enterprises backed the YES vote in Error! Hyperlink reference not valid., by fundraising for the campaign, hosting events or displaying YES posters. The Irish Business and Employers Confederation (IBEC) public stated that support for marriage equality was “good for business, good for employees and good for Ireland”, although the Irish Small and Medium Enterprises Association (ISME) did not come out in favour of a YES vote. For smaller Irish businesses, backing the YES campaign was probably more a reflection of the outlook of owners and staff, rather than a conscientious business-orientated decision (although one small business did suffer for a recent stance against same-sex marriage).

GLEN, the Gay and Lesbian Equality Network, played a key role in getting business on board, with its Business for Yes campaign, and its broader Diversity Champions initiative. It has put forward the business case for diversity in the workplace based on organisational reputation, compliance and risk management, staff performance, retention and recruitment. David McWilliams argued that a YES vote would be good for the economy, given the “strong correlation between tolerance and wealth”. And following the referendum, the Irish Examiner ran a lead story regarding Government plans to tap into the “$200bn gay spend”. There is little doubt that there is a business and economic aspect to the issue.

For a narrowly focused campaigning organisation like GLEN, it would obviously seek to garner support from all quarters in order to advance LGBT equality. Making a business case for marriage equality seems to have made sense in the Ireland of today, but it is highly unlikely that it would have been endorsed by large multinational companies or business representative organisations a few decades ago. It is doubtful also whether such companies would promote LGBT rights so openly in other countries where they operate, and where homophobia is rampant and often institutionalized.

The multinationals which backed YES did so as very large and very public companies, for whom their brand recognition and public image are especially important. They were also backing the right horse to some extent. In a recent New Yorker article, Richard Socarides described the evolution of corporate support for LGBT issues in the United States, and how only a couple of decades ago, there were “very few takers” for Bill Clinton’s gay rights initiatives, as compared with today. A majority of companies in Ireland chose not to take any position on the referendum.

This is not to say that business should not be recruited in the context of advancing particular human rights, but rather that the business approach to social issues is highly selective and subject to business realities. Amnesty Ireland, who firmly backed the YES campaign, have expressed their concern about overstating a business case for human rights:

the business case for respecting human rights is unclear. It is evident that … abusing human rights can be very profitable for companies. Linking human rights with successful business also risks undermining the moral argument that businesses are a part of wider society, and should respect the Universal Declaration of Human Rights.

Companies which backed the YES campaign for marriage equality in Ireland have less than exemplary records in relation to other human rights, including privacy, data protection and the rights of workers in their supply chains. Business representative organisations have almost as a matter of course opposed increases in the minimum wage or enhanced protections for the right to collective bargaining and to strike. On LGBT issues, some companies have advocated for “conscience clause” legislation, which could amount to legally permitting discrimination.

The relationship between business and human rights is a complex one, but few would question the view of the United Nations that companies have a responsibility to respect humans rights. When it comes to business promoting human rights and campaigners making the business case for certain rights issues, we need to be a little circumspect and aware of the limitations of these approaches. Glenn Greenwald has written of the exploitation of social issues, such as LGBT rights, for purposes of militarism and imperialism, and in the aftermath of the marriage equality referendum, it has been said that corporate Ireland will try to “milk a YES vote shamelessly”.

The YES victory was a truly momentous day for Ireland, but we shouldn’t hold our breath in terms of expecting business to voluntarily embrace the full range of human rights and equality issues. The positive progressive image that may have been generated for companies which supported the marriage equality campaign should not deflect from the importance of ensuring that business respect for human rights and equality is a legal requirement, and not a business choice.

Business Said Yes! To Marriage Equality – But Will the Circle be Widened?

Galway International Summer School on the Arts and Human Rights

 

HeaderThe first Galway International Summer School on the Arts and Human Rights will take place from 9–11 July 2015 in National University of Ireland, Galway.  Co-directed by Prof. Michael O’Flaherty, Director of the Irish Centre for Human Rights and Dr Dominique Bouchard, Curator at the Hunt Museum, it will bring together arts practitioners with human rights activists and scholars to explore their shared space.  Events will take the form of panel discussions, exhibitions and performances.

The global theme for 2015 will be “Belonging”.  The Summer School will consist of keynote addresses, plenary discussions, and themed discussions on three parallel tracks – literature and human rights; the visual arts and human rights; and music and human rights.  The opening speaker will be the United Nations Special Rapporteur for Cultural Rights, Farida Shaheed.

As we have managed to secure funding for the Galway International Summer School on the Arts and Human Rights, we are delighted to announce that the registration fee has now been cut by 50% to €175, fully inclusive of all lunches and refreshments.

We are also inviting the submission of papers, posters, performance, or visual art pieces for the Summer School. A selection of submissions will be invited for inclusion in the peer-reviewed conference proceedings to be published by an international academic publisher in 2016.

To register and for further information, see: http://conference.ie/Conferences/index.asp?Conference=418 

Galway International Summer School on the Arts and Human Rights

LLM (International Justice) Now Offered by Department of Law, Maynooth University

Maynooth-University-with-loThe LLM (International Justice) programme is a newly approved degree offered by Maynooth University Department of Law.

Commencing in September 2015, the LLM (International Justice) will be offered to law graduates and graduates of cognate disciplines (e.g. international relations, social studies, sociology, politics, and other inter-disciplinary degrees which have a focus on the international community order). The LLM (International Justice) provides students with critical insights into the international legal system and how it operates to promote and secure justice.  It analyses how the international legal order works and how it seeks to protect vulnerable groups, including minorities, migrants and peoples with disabilities. The programme draws on law and other disciplines, including sociology, anthropology and politics, to provide students with a comprehensive examination of the challenges facing international justice mechanisms today.

Placement opportunities with partner civil society organisations, such as Transparency International (Ireland) will be available.

Teaching is delivered by means of small class lectures, in-class simulations, workshops and masterclasses.

The programme will be accessible to international students from all jurisdictions, as no prior knowledge of the common law is required. The programme will be very attractive to law graduates who wish to specialise in the field of international law and to non-law graduates who may be interested in undertaking a vocational law programme in the future.

Modules Offered Include:

Public International Law, International Human Rights Law, Global Trade Law, The Rights of Minorities and Indigenous Peoples, Globalisation, Migration and the Law, The EU as a Global Actor, International and European Disability Law and Policy, Economic Social and Cultural Rights, Advocacy, Gender, Sexuality and the Law, Dissertation.

Details:

Qualification Awarded: LLM (International Justice)

Award Type and NFQ level: Masters (Level 9)

CAO/PAC code: MH64J (fulltime); MH65J (part-time)

Closing Date: 31 July 2015

Programme Director: Dr Noelle Higgins (noelle.higgins@nuim.ie)

Additional Details: https://www.maynoothuniversity.ie/law/llm-international-justice

LLM (International Justice) Now Offered by Department of Law, Maynooth University

School of Law, NUI Galway, Annual Distinguished Lecture 2015: Friday 24th April, 8pm, Aula Maxima, NUIG

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The Annual Distinguished Lecture 2015, hosted by the School of Law at NUI Galway will, this year, be delivered by the Right Honourable Sir Declan Morgan, the Lord Chief Justice of Northern Ireland on the topic of ‘The role of the judiciary in the vindication of human rights’. The event, which takes place in the Aula Maxima (Lower) at 8pm on Friday 24th April, will be chaired by the Chief Justice of Ireland, Ms. Justice Susan Denham. It will be followed by a reception for attendees in the Staff Club, Quadrangle Building, NUIG.

Previous speakers in the Annual Distinguished Lecture series include: Professor Christopher McCrudden of Oxford University, Judge John T. Noonan of the US Court of Appeals for the Ninth Circuit, Professor Neil Walker of Edinburgh University, Baroness Brenda Hale of the UK Supreme Court, Mrs. Justice Catherine McGuinness of the Irish Supreme Court and Mr. Justice Nial Fennelly of the Irish Supreme Court.
The event is held on an annual basis to mark the end of the academic year and is open to students and graduates of the School of Law, NUIG as well as interested members of the public.

Biographical details of speaker and chairperson:

THE RT HON SIR DECLAN MORGAN
LORD CHIEF JUSTICE OF NORTHERN IRELAND
Sir Declan Morgan was educated at Peterhouse, Cambridge. He was called to the Bar in 1976 and took Silk in 1993. He was Senior Crown Counsel for Northern Ireland from 2002 until his appointment as a High Court Judge in May 2004. He was appointed to the Family Division in January 2007 and in September 2008 became one of two judges with responsibility for judicial review. Sir Declan was appointed Chairman of the Law Reform Advisory Committee for Northern Ireland in 2004. He was Chairman of the Northern Ireland Law Commission from April 2007 until his appointment at Lord Chief Justice of Northern Ireland in July 2009. Sir Declan is also Chairman of the Northern Ireland Judicial Appointments Commission. He is an Honorary Bencher of Middle Temple.

CHIEF JUSTICE SUSAN DENHAM
CHIEF JUSTICE OF IRELAND
Mrs. Justice Susan Denham was appointed the 11th Chief Justice of Ireland on the 25th July, 2011. Judge Denham was educated at Alexandra College, Dublin; TCD; King’s Inns and Columbia University, New York. She was called to the Bar in 1971 and became a Senior Counsel in 1987. As a barrister she practised on the Midland Circuit and in Dublin, and had a general practice with a specialisation in Judicial Review cases. Appointed a Judge of the High Court in 1991, in December 1992 she was the first woman appointed a Judge of the Irish Supreme Court. Judge Denham is a Member of the Royal Irish Academy since 2013. From 1996 to 2010 Judge Denham was Pro-Chancellor of the University of Dublin (TCD). She has been awarded honorary doctorates by Queen’s University Belfast, University of Ulster, UCD and DCU.

Date: Friday 24th April

Time: 8pm

Venue: Aula Maxima, NUI Galway

School of Law, NUI Galway, Annual Distinguished Lecture 2015: Friday 24th April, 8pm, Aula Maxima, NUIG

Conference on Older Persons and the Law at NUI Galway

IMG_7364warnerThe Mental Health Rights Group and the LL.M in International and Comparative Disability Law at the Centre for Disability Law and Policy, School of Law, NUI Galway in conjunction with the Employment Law Association will hold a one day conference entitled ‘Law and the Older Person’ on Saturday 24th of January 2015 in Galway.

The conference is timely focusing on the rights of older persons nationally and internationally.  The conference addresses the need for comprehensive information and critical analysis of legal and policy reform in Ireland. This Conference will address this need and discuss a number of key legal and policy issues of relevance to older persons. The morning session will focus on the important area of advocacy and will address the proposed Assisted Decision-Making (Capacity) Bill 2013 from both legal and medical perspectives. The afternoon session will focus on aspects of legal practice and the older client, on ageing and discrimination and on the Fair Deal Scheme.

The Conference brings together many leading commentators from the fields of law, medicine and practice. It provides an opportunity for discussion, and debate and will be of particular relevance to older persons, to carers, advocates, health care practitioners, lawyers, researchers, and independent sector service providers and policy activists.  For a full conference programme and to register online see here.

Conference on Older Persons and the Law at NUI Galway

Book Launch 12th December 2014: Genetic Discrimination – Transatlantic Perspectives on the Case for a European Level Legal Response

9780415836937A new book entitled ‘Genetic Discrimination – Transatlantic Perspectives on the Case for a European Level Legal Response’ published by Routlegde will be launched on the 12th of December 2014.  The book edited by Prof Gerard Quinn (NUI Galway), Dr Aisling de Paor (Dublin City University) and Prof Peter Blanck (Syracuse University) will be launched by Marian Harkin MEP at the European Commission Representation Office, Dawson Street, Dublin.

The book is timely as genetic technologies advance, genetic testing may well offer the prospect of detecting the onset of future disabilities. Some research also forwards that certain behavioural profiles may have a strong genetic basis, such as the determination to succeed, or the propensity for risk-taking. As this technology becomes more prevalent, there is a danger that that genetic information may be misused by third parties and that particular genetic profiles may be discriminated against by employers, by providers of social goods and services, such as insurance companies and even by educational facilities.

This edited book explores the different forms and potential uses of genetic testing. Drawing together leading experts in disability law, bioethics, health law and a range of related fields, it highlights the ethical and legal challenges arising as a result of emerging and rapidly advancing genetic science. On examining transatlantic perspectives on the matter, chapters in the book ask whether the US Genetic Information Nondiscrimination Act (GINA) is proving to be an effective tool in addressing the issue of genetic discrimination and alleviating fears of discrimination. The book also reviews what insights may be gained from GINA within employment and health insurance contexts, and asks how the UN Convention on the Rights of Persons with Disabilities (CRPD) may impact similar debates within the European Union. The book focuses particularly on the legislative and policy framework in the European Union, with an emphasis on the gaps in protection and the scope for specific legislative action in this area.

This book will be of great interest to scholars and students of discrimination law, bioethics and disability law, and will be of considerable use to legal practitioners, medical practitioners and policy-makers in this area.

The launch will take place on the 12th December 2014 at 5pm at the European Commission Representation Office, Dawson Street, Dublin.  If you are interested in attending please RSVP mary.faherty@nuigalway or telephone 091 – 495888.

You can order a copy of the book here.

Book Launch 12th December 2014: Genetic Discrimination – Transatlantic Perspectives on the Case for a European Level Legal Response

Preventing impunity for serious human rights abuses: The Zimbabwe Torture Docket Case

SA CourtWe are delighted to welcome this guest post from Amina Adanan who holds the EJ Phelan Fellow in International Law and is a Ph.D candidate at the Irish Centre for Human Rights, School of Law, NUI Galway.

On 30 October last, the Constitutional Court of South Africa issued its decision in National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another (Zimbabwe Torture Docket Case). The judgment affirms that the South African Police Service (SAPS) has a duty to investigate crimes against humanity committed outside of South Africa, subject to certain restrictions.

The case concerns the application of universal jurisdiction in South Africa. Universal jurisdiction is the prosecution of a serious human rights abuse, where the crime is committed abroad, by foreigners, against foreigners. It is a type of extraterritorial jurisdiction that applies to piracy (on the High Seas), the Slave Trade, genocide, war crimes, crimes against humanity and torture. Serious human rights abuses are often orchestrated by the state apparatus, thus a prosecution in the territorial state may be unlikely. As such, universal jurisdiction is vital to ensure that abuses are prosecuted. The Implementation of the Rome Statute of the International Criminal Court Act No. 27 of 2002 (ICC Act) allows South African Courts to exercise universal jurisdiction over crimes against humanity.

Background to the case

In March 2007, the Zimbabwean Police, acting under the direction of ZANU PF (the then one party government) raided the headquarters of the main opposition party, the MDC. Some MDC supporters were detained and tortured by the Zimbabwean Police. The torture was committed as part of a wide-scale and systematic operation executed against the MDC and its supporters in the run up to the 2008 elections. The acts were committed in Zimbabwe, by Zimbabweans, against Zimbabweans.

Following the incident, the South African Litigation Centre (SALC), a prominent public interest NGO, investigated the matter. SALC gathered evidence and compiled a docket, which included medical reports of victims, along with interviews and affidavits from witnesses and victims. In March 2008, the docket was forwarded to the National Prosecuting Authority (NPA) for investigation. In June 2009, SALC received confirmation that SAPS would not investigate the alleged offences. Under the Constitution, it is the duty of the Police to investigate crime.

SALC and the Zimbabwe Exiles’ Forum (ZEF) then applied to the High Court in Pretoria, seeking an order to have the decision reviewed. The application was made against the National Director of Public Prosecutions (NDPP), the Head of the Priority Crimes Litigation Unit of the NPA and the National Commissioner of SAPS. After the High Court found in favour of the applicants, the National Commissioner of SAPS and the NDPP appealed the High Court’s decision to the Supreme Court of Appeal of South Africa. In November 2013, the Supreme Court of Appeal found in favour of SALC and ZEF. Saidat Nakitto has provided an excellent analysis of the Supreme Court of Appeal decision.

The National Commissioner of SAPS then appealed the matter to the Constitutional Court of South Africa. Seven amicus curiae joined the proceedings, among them notable academics in human rights law and NGOs around the world, illustrating the importance of the case in the field of human rights.

The findings of the Constitutional Court

The Constitutional Court looked to whether SAPS had an obligation to carry out pre- trial investigations into international crimes committed extraterritorially, and if so, what circumstances trigger this duty.

The obligation on SAPS to investigate international crimes committed abroad

First, the Constitutional Court noted the ‘special place’ of international law in South African law; reiterating, that the Constitution and national legislation must be interpreted in light of international law.

The Court then turned to look at Complementarity in the Rome Statute of the International Criminal Court. Article 17 of the Rome Statute (and its preamble) affirm that the ICC can only hear a case, where a state with jurisdiction over the offence is unable or unwilling to investigate or prosecute the crime. The ICC is complementary to national courts, when it comes to the prosecution of international crimes (genocide, war crimes and crimes against humanity). The ICC can exercise jurisdiction over international crimes that are committed on the territory of a state party, or by a national of a state party, or when a situation is referred to the Court from the UN Security Council. The Constitutional Court noted that a question arises as to states parties’s obligations to prosecute international crimes committed in the territory of a non-state party to the Rome Statute. Here the Court noted:

If an investigation is not instituted by non- signatory countries in which the crimes have been committed, the perpetrators can only be brought to justice through the application of universal jurisdiction, namely the investigation and prosecution of these alleged crimes by states parties under the Rome Statute.

Zimbabwe is not a state party to the Rome Statute and the National Commissioner of SAPS did not dispute the unlikelihood of the torture being investigated in Zimbabwe.

The Court then turned to look at South Africa’s jurisdiction in respect of the crime of torture. The Court noted that torture is a crime to which jus cogens status attaches and from which no derogation is permitted. South Africa had incorporated the UN Convention Against Torture into domestic law. Jurisdiction over torture on the scale of a crime against humanity had been incorporated into domestic law in South Africa by the ICC Act itself. After examining the sources of international and national law, including regional instruments, the Constitutional Court concluded that South Africa is required (where appropriate) to exercise universal jurisdiction over crimes against humanity.

The ‘connecting factors’ in South Africa’s exercise of universal jurisdiction under the ICC Act

The Court recognised that there were certain ‘connecting factors’, at least one of which must be present for an international crime to be prosecuted in South Africa. Section 4 (3) of the ICC Act, states that South African Courts have jurisdiction over international crimes committed outside of South Africa:

[A]ny person who commits a crime contemplated in subsection (1) outside the territory of the Republic, is deemed to have committed that crime in the territory of the Republic if –

(a) that person is a South African citizen; or

(b) that person is not a South African citizen but is ordinarily resident in the Republic; or

(c) that person, after the commission of the crime, is present in the territory of the Republic; or

(d) that person has committed the said crime against a South African citizen or against a person who is ordinarily resident in the Republic.

In this instance, section 4(3)(c) was relied on. SAPS argued that because the accused persons were not present in South Africa, they were not under a duty to commence an investigation. (Notwithstanding that some of the accused Zimbabwean officials visited South Africa after the crimes were committed, and were not apprehended). The ICC Act itself is silent on whether the accused need be present in South Africa for the pre-trial investigation.

After noting the work of the Institut de Droit International and the content of the amicus curiae brief submitted by John Duggard and others, the Court stated that there was no international rule that the accused must be present for the pre- trial investigation. If not, investigations into crimes against humanity would be unlikely take place. The Constitutional Court did not dispute that the presence of the accused is required at a more advanced stage of proceedings.

Limitations on the exercise of universal jurisdiction by South Africa: subsidiarity and practicability

Looking first at subsidiarity, the Court found that an investigation may only commence where another state with jurisdiction over the crime (the territorial or state of nationality of the alleged perpetrator) is unable or unwilling to do so. The reason being, ‘the principle of non- intervention in the affairs of another country must be observed’. Here, the Court borrows from the language of the principle of complementarity. The Court noted that it was unlikely that the crimes would be investigated by the Zimbabwean Police, given that six cabinet ministers were linked to the offence.

On the issue of practicability, the Court said that the South African authorities must consider if it is reasonable to carry out the investigation, in each particular case. A number of factors must be considered: (1) The likelihood of a prosecution; (2) If the accused persons are likely to enter South Africa, of their own accord, or via an extradition request; (3) The geographical location of the crime; (4) The likelihood of the accused being arrested; (5) The gathering of evidence; and (6) The nature and extent of resources required.

The Constitutional Court unanimously rejected the appeal and costs were awarded against the appellant. The Court highlighted that constitutional obligations must be carried out without delay, notwithstanding the considerable time that had lapsed since the torture had occurred. SAPS will now investigate the crime.

Points of note

There are a number of significant points that arise in this judgment. Firstly, the Rome Statute itself does not demand that states parties exercise universal jurisdiction. As stated above, the ICC has jurisdiction to hear cases relating to international crimes committed on the territory of a state party, or carried out by nationals of the states parties. States parties are obligated to incorporate these forms of jurisdiction into domestic law, at a minimum. Section 4(3) of the ICC Act does not include universal jurisdiction in express terms. The Constitutional Court interpreted section 4(3) as implying the exercise of universal jurisdiction by the South African authorities.

Second, the Constitutional Court was right to distinguish between the presence of the accused for the pre-trial investigation and the presence of the accused for the trial, as it did. State practice shows that many pre- trial investigations related to the exercise of universal jurisdiction begin without the presence of the accused in the forum state. The investigation in Spain, into crimes committed by General Augusto Pinochet during his reign in Chile, are perhaps the most famous example of this. In Belgium, investigations commenced into alleged international crimes committed by former US President George H. W. Bush, and former Israeli Prime Minister Ariel Sharon, without the presence of the accused.

Third, in the grand design that is modern universal jurisdiction, where the trend of states is to reduce the scope of universal jurisdiction, this judgment is refreshing. Moreover, it is an example of a non- European state taking steps to apply universal jurisdiction (which is usually exercised by European States). Since 2003, in Belgium, the national legislation on extraterritorial jurisdiction is restricted to the active and passive personality principles, or to accused persons or victims who are resident in the state. In Spain, the question of whether recent amendments the national legislation on universal jurisdiction conflict with Spain’s obligations in international law, is currently being explored by the Spanish Constitutional Court. One of the reasons for this trend is because the exercise of universal jurisdiction interferes with the forum state’s international relations. In the Zimbabwe Torture Docket Case, the Constitutional Court of South Africa did not give much attention to SAPS’s concern that the investigation would hamper South African- Zimbabwean relations. The Constitutional Court noted that inter-state tension is unavoidable in the application of universal jurisdiction.

Finally, it can also be said that this judgment is an example of how the principle of complementarity is supposed to work. As the Court noted, the primary responsibility of the prosecution of international crimes rests with the states parties. It may be the case that this judgment comes from a state with a particularly strong will when it comes to human rights. South Africa was the first African State to incorporate the Rome Statute into domestic law. This is an important judgment not only for South Africa, but for other states that exercise universal jurisdiction. It is a positive move towards preventing impunity for serious human rights abuses. Whether the judgment will appeal to other states will remain to be seen.

Case materials are available on the website of the South African Litigation Centre.

Preventing impunity for serious human rights abuses: The Zimbabwe Torture Docket Case

Civil Society Perspectives on Business and Human Rights

Screen Shot 2014-11-05 at 11.11.59We are delighted to welcome the latest in a series of cross-posts by Dr Shane Darcy from the Business and Human Rights in Ireland Blog. The Business and Human Rights in Ireland Blog is dedicated to tracking and analysing developments relating to business and human rights in Ireland. It aims to address legal and policy issues, as well as highlighting human rights concerns raised by the activities of Irish companies or multinational corporations based in Ireland. The blog is run by Dr Shane Darcy who is a lecturer at the Irish Centre for Human Rights, National University of Ireland Galway.

The theme for this year’s Department of Foreign Affairs and Trade NGO human rights Forum is ‘Business and Human Rights: Implementing the United Nations Guiding Principles’. The event, which takes places this Friday, 7 November 2014, is seen by the Department as part of its consultative process towards the development of a national action plan for the implementation of the UN Guiding Principles:

The objective is to present the opportunity for business and civil society to set out their views on business and human rights, both in the broad sense and also with a view to helping to develop a national plan.

In the lead-up to the Forum, a series of guest posts have been running on the Business and Human Rights in Ireland blog, bringing together a variety of international and national civil society perspectives on the topic of national plans for business and human rights. In this post, I try to highlight some of the key points made by the contributors, which may be of interest to those attending Friday’s event.

Starting off the series, Shawan Jabarin, the Director General of Al-Haq, the Palestinian human rights organisation, underscores the role that business is playing in perpetuating the Israeli occupation of Palestine. He makes an interesting historical comparision with Ireland, and considers it:

both ironic and disappointing is that today one of Ireland’s largest corporations, Cement Roadstone Holdings, is profiting from the construction of settlements and walls in occupied Palestinian territory, both of which are violations of international law.

Al Haq, who will be represented at the Forum (as will Cement Roadstone Holdings), have expressed their hope that Ireland might use this opportunity to “raise the bar” in the area of business and human rights.

David Joyce from the Irish Congress of Trade Unions reflects in his piece on the contribution that the UN Guiding Principles on Business and Human Rights can make towards the attainment of the decent work agenda. He sees their importance in the clarification they bring regarding the different roles and responsibilities of business and Governments. He rightly observes that “businesses should not decide what their responsibilities to society are”. David also highlights the weakness of the OECD National Contact Point in Ireland and sees an opportunity in this process for its strengthening.

Karol Balfe, a policy adviser for Christian Aid Ireland focuses on the case of Colombia, in particular on issues relating to trade and human rights. She highlights the opposition of many unions and farmers to the EU Free Trade Agreement with Colombia and Peru, which is to be the subject of a forthcoming Dáil debate. Although there are some human rights aspects to the Agreement, she points to the absence of proper monitoring or compliance mechanisms. She calls on the Irish government, in line with the Guiding Principles, to “develop and set out clear and specific human rights guidelines for Irish companies doing business in Colombia in order to ensure they do not violate human rights”.

Selina Donnelly, Policy Officer for Trócaire, also contributed a post, drawing on the detailed policy position paper on business and human rights that the organisation has just published. Extraterritorial enforcement of human rights is particularly important, she writes, “given the increasing globalisation of business, and growth of corporate influence”. She highlights the significant risks that Irish businesses may become directly responsible or complicit in human rights violations, especially in countries with poor human rights records or weak regulatory environments. She outlines Trócaire’s recommendations regarding remedies, due diligence and the need for a gender focus.

On the subject of national action plans for business and human rights, Claire Methven O’Brien, Strategic Adviser to the Danish Institute for Human Rights, makes the compelling case as to why such plans can help advance the business and human rights agenda. She highlights five key reasons as to why States should adopt national implementation plans: stocktaking, increasing the visibility of particular rights issues, exposure of poor human rights practice, facilitating dialogue between Governments, business and civil society, and, finally, permitting home-grown responses to concerns over business impacts on human rights.

In the most recent contributions, Nicholas McGeehan, Middle East Researcher for Human Rights Watchexplains that the adoption of the Guiding Principles has “undoubtedly” helped NGOs address corporate violations of human rights, by providing a framework in which to put pressure on companies. He focuses on forced labour in the Gulf, particularly prominent in the context of the World Cup in Qatar in 2022, and provides some basic advice for construction companies that might be operating there. Hannah Grene, an independent researcher in human rights and development, also looks at issues of extraterritorial respect for human rights. She draws on Ireland’s poor record in relation to bribery overseas and advocates for significant changes to the way in which the OECD national contact point operates here.

 

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This post gives just a flavour of some of the business and human rights issues that civil society will be seeking to be addressed at the annual DFAT NGO human rights Forum this Friday. A recent post on the blog also included a summary of recommendations made by the Irish Centre for Human Rights in 2012 on the subject of business and human rights. Other NGOs in Ireland have also made submissions to the Department in the recent past relating to business and human rights, including Amnesty International, and no doubt they will also make their voices heard at the Forum.

Civil Society Perspectives on Business and Human Rights