Philip Rule, No5 Chambers, reports from the European Court of Human Rights conference on the Crimes of the Past

Mon, 29 Feb 2016

The conference on 26 February 2016, held in the court building in Strasbourg, brought together a wealth of expert speakers covering many areas of interest to international lawyers and international criminal lawyers. The three principal topics engaged:

(1)    the judgments of the international tribunals in interpreting or writing history through trial of facts of historical significance;

(2)    the principle of legality particularly in international human rights and international criminal law;

(3)    the work of amnesty, pardons and truth commissions as part of the international machinery.

With a total of 28 short presentations from many eminent speakers it would be impossible to summarise the thrust of each. However some personal highlights that give a flavour of some current topics of debate, or issues in thinking in the international courts and tribunals, would include the following examples.

Lauri Mälksoo, international law professor, discussed the recent caselaw of the Grand Chamber of the EctHR concerning atrocities committed in the Soviet era; and addressing whether the same standards and rules apply to the states that won and lost the Second World War. He questioned whether in the future the definition of the crime of genocide adopted in 1948 by the Convention on the Prevention and Punishment of the Crime of Genocide should be altered to allow it to apply to action to destroy cultural, social or political groups and not only national, ethnical, racial or religious groups (as presently defined also by Article 6 of the ICC statute).

Marko Milanovic, Vice-President of the European Society of International Law and Associate Professor at the Nottingham University law school, highlighted a practical problem with societies and populations (particularly where the domestic policitians or media have an interest in denying the liability court judgments may establish) actually accepting the truth of the findings made by an international tribunal. The case study of the ICTY's very definite lack of success in bringing about acceptance of events it has considered established raised the question as to how an international tribunal may better ensure its conclusions are given widespread support or cognisance in determining contested facts; and what can be done if state parties do not support the findings. Concerning the ICTY in surveys in 2010 and 2012 the belief in the truth (established as facts by the ICTY) showed in some cases even around 80% of some ethnic populations continuing to deny the existence of massacres the ICTY has found proved. Self-interest of the populations and perception of self, perhaps unsurprisingly, guide most people's belief systems; with the rulings of the ICTY apparently making no (or precious little) difference. The panel agreed that the party who loses a court case often regards the decision that goes against him as wrong. 

What this means perhaps is that whilst achieving individual justice in the punishment of the perpetrators of such heinous crimes, there remains a lack of confidence or belief in the international justice system and rule of law by which the populations concerned might draw a general value from the judgments. If more readily accepted the judgments might otherwise assist towards reconciliation for the future and acceptance of past injustices.

By comparison, perhaps due to the political situation after the conflict, but also using outreach projects to spread its message, its former President Erik Møse explained that the Rwandan tribunal had not found the same level of resistance to its findings. The court had also operated alongside other complementary international law mechanisms.

After the luncheon break, Albin Eser, Professor Emeritus of Criminal Law, Criminal Procedure, and Comparative Criminal Law, and former ad hoc judge of the ICTY, spoke of the four constituents of the principle of legality, and identified that there is some movement away from the principle in the search to identify acts that were criminal according to the recognition of the community of nations in order to hold to account the perpetrators of crimes against humanity. He identified the many provisions of written international law that now espouse the principle of legality. In considering the ban on retro-activity he considers that “nulla poena sine lege” ought perhaps to be recognised to really mean “nulla poena sine jure” in the international sphere (whereas in German law it is strictly accurate), because strictly-speaking if one talks of “lege” that suggests the need for the written word in a statute, whereas some recognised law (jure) is found for example in common law traditions not written in a statute.  

Judge Paulo Pinto de Albuquerque (a judge of the ECtHR) considered the cross-fertilisation between international criminal law and international human rights law. He identified that there are three “grey” zones where international criminal law does not have relevance but human rights law does: criminal prevention measures that do not result from conviction of crime but that impose restrictions and sanctions upon the individual; sentencing; and post-sentencing. The first category includes, the Judge explained, for example the measures taken against sex offenders in the UK that are not conviction based. Whether such personal measures should be subject to the principle of legality or not is a present debate, and he mentioned the Grand Chamber case of De Tommaso v Italy (appln. 43395/09) that is to determine such an issue (restrictions there including a compulsory residence order hampering the individual’s freedom of movement).  In respect also of the service of sentences, again several cases were mentioned, including the awaited judgment of the Grand Chamber (which heard the cases in January and October last year) in Murray v Netherlands (appln. 10511/10) and Hutchinson v UK (appln. 57592/08) will consider Article 3 ECHR and the UK Court of Appeal’s response to Vinter and the whole-life order life sentences.

Professor Pavel Šturma, member of the International Law Commission, gave a comprehensive listing of cases on the subject of the principle of legality in Article 7 ECHR. This essential element of the rule of law it was explained holds a prominent place in the Convention, and international law principle. 

Christine Van den Wyngaert, a Judge of the International Criminal Court, addressed practical issues arising in criminal prosecutions where the subject matter of the evidence (and/or the charges originally laid of crimes against humanity) expands to cover also evidence of sexual abuse of child soldiers. The ongoing development of principles in this regard in some current cases was explained. She also referred to the principle of lex mitior (the benefit of the more lenient subsequent criminal law) recognised by the ICC statute.

Professor of International Law, Anne Peters, examined the wide basis in international law for the principle of legality beyond simply international criminal law. It is recognised in 162 domestic constitutions, and she explained why it plainly qualifies also as a general principle of international law recognised by the International Court of Justice. The focus of her presentation concerned the application of the principle of legality to the “regulatory turn” in international law (its development to regulate duties upon private actors to observe the principle for the protection of the individual, exemplified in her view by the prohibition upon environmental pollution, respect for international labour conventions, and to respect certain precepts of international humanitarian law). Her view of this development it appears may not be in common with that of Judge Pocar (see below).

Ksenija Turkovic, Judge of the EctHR, spoke of the dual core she sees to the principle of legality, from which its elements flow. Those two purposes being to limit the discretion of the state in order to prevent excesses, and to give fair warning of the law. 

Paola Gaeta, Professor and Head of the International Law department in Geneva, spoke about the rule of law tension in focus in the interplay between the principle of legality and the need to impose retrospectively substantive justice. This dilemma existing for states with transitional justice issues. She also spoke particularly about the disapplication of domestic limitation periods for prosecution, on the basis of invocation of crimes against humanity jurisdiction, but then trials conducted on the basis only of domestic murder law and domestic law defences, in Argentina for example. She questioned the fairness of the trials that follow this means of escaping the limitation period but lead to essentially the trial of the domestic offence that was otherwise time-barred. 

Judge Fausto Pocar, past President of the ICTY and presently an Appeals Judge for the ICTY and ICTR, identified a reverse trend in the specific case of crimes of the past than is witnessed in international law more generally in other areas. In the former the trend is towards interpretation or recognition of customary international law, whereas elsewhere the trend is towards codification and the replacement of the customary law by treaty law. 

He also regards the scope of human rights as being that presently identified and there ought not to be more or new rights. He cautioned against the expanse of “rights” into new areas, such as the protection of the environment to give one example. He suggested in reality these are not rights, and have no meaning. When one talks of such things it is a protection that is required to be implemented by the international or domestic law or systems, but it is wrong to speak of defining “rights” to such things.

This article was written by No5 Barrister Philip Rule, click here to view Philip's profile.

Related articles

Pilots may be the subject of a prosecution when flying single engine aircraft in the vicinity of major conurbations, as distinct from flying over a city centre....

Date: Mon, 04 Jan 2010
David Lock of No5 chambers is representing Cambridgeshire Primary Care Trust in the Inquest into the death of David Grey and Iris Edwards, who both died following treatment by a German locum doctor, Dr Ubani....

Date: Thu, 14 Jan 2010
Ralph Lewis QC leads Gordon Wignall, Henry Pitchers and Matthew Brunning in a Group Litigation case....

Date: Thu, 14 Jan 2010