… man has consciously and unconsciously inflicted irreparable damage to the environment in times of war and peace. — Richard A. Falk, 1973
And will continue to inflict irreparable harm. Environmental degradation and climate change are coming to the forefront of global anxieties with reports of CO2 emissions hitting record levels in 2020 (with a minor dip thanks to COVID), 178 million hectares of forest – an area the size of Libya – being deforested since 1990 (and continuing with impunity), and oil pipelines bursting, leaking into the sea, and causing massive damage to coastal communities (while underneath, 70% of the earth’s coral reefs are at risk due to long-term threats). More desertification, drought, fires, and floods are only expected – at least by the majority of 1.2 million people surveyed worldwide by the United Nations Development Programme who consider that climate change is a global emergency. And this is just peace time pollution. Aside from the obvious environmental damage caused during conflicts, War Junk – weapons and military materials such as landmines, cluster munitions, chemical and radiological weapons – also leaves environmental legacies post-conflict, restricting the use of agricultural land and polluting soil and water sources with explosives and deadly chemicals such as TNT, adamsite, Clark I and Clark II, tabun, and mustard gas, just to name a few.
Claiming that “scientific evidence points to the conclusion that the emission of greenhouse gasses and the destruction of ecosystems at their current rates will have catastrophic consequences for our common environment,” the Independent Expert Panel for the Legal Definition of Ecocide (IEP) assembled by the Stop Ecocide Foundation proposes that the Rome Statute be amended to include the crime of ecocide. Bold, impressive, even alluring. But is the proposed crime necessary, is the definition of it sound, and more pragmatically, how realistic is it that the Assembly of States Parties (ASP) will adopt a fifth international core crime – even if the proposed Article 8 ter crime of ecocide is considered necessary and sound? Continue reading “Ecocide: the environmental crime of crimes or ill-conceived concept?”
THE LAST TRIAL, by Scott Turow, Pan Books, 2020, 449 pages, $12.82
The law is humanity’s sanctuary, where we retreat from unreason. And humans need the law, because they need to believe there is some justice to their interactions, a justice that God or Fate or the Universe, call it what you like, will never provide on their own.
Reviewing Turow’s Testimony (2017) here, I completely panned it, recommending that you opt for John Grisham’s Camino Island, which had just come out (incidentally, the sequel Camino Winds which recently came out is also a recommended beach read). Turow had never disappointed before; I first came across him when I read One L when thinking of going to law school. But in Testimony, I found the plot absurd and unrealistic, his courtroom scenes laughable (he was on unfamiliar ground at the ICC), his stereotyping distasteful (though he is unquestionably tolerant and unbiased), his historical narrative lazy and misleading (conflicts are complex with no one side having a monopoly on badness). Worst of all it is a “gratuitous Serb-bashing, primarily resulting from ignorance and insensitivity; using them as a punching bag, stereotyping them, and generalizing about their character or activities.”
Not so in The Last Trial.
Continue reading “Book Review: THE LAST TRIAL”
Rehabilitation is a process rather than a definite result, and it is just one factor that I will consider alongside other factors when deciding on the early release of a convicted person who is eligible to be considered for such relief. – President Agius in Kunarac, para. 45
[A]t the ICTR and the ICTY, rehabilitation has been, on occasion, referred to as an additional sentencing goal, but it has not been defined… There is, however, no settled definition of the exact contours of the concept of rehabilitation in the context of genocide, crimes against humanity, or war crimes. In this regard, I observe that until recently the assessment of rehabilitation focused mostly on whether the convicted person had demonstrated good behaviour in prison. – President Agius in Bralo, para. 37
Having discussed in Part 2 the statutory provisions, rules, and practice directions for early release at the International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), and International Residual Mechanism for Criminal Tribunals (IRMCT), let’s now look at the case law in answering the question I have set out to settle: Has IRMCT President Carmel Agius moved the goalposts? But first, some prefatory remarks.
As with all international(ized) tribunals and courts, the convicted persons under IRMCT supervision are serving their time in prisons of States that have agreed to accept them. Where one ends up serving his or her time can make a difference not just in the quality of life behind bars, but also when it comes to early release – at least in theory. Continue reading “EARLY RELEASE: Has IRMCT President Carmel Agius moved the goalposts? (Part 3)”
[W]hile it has been consistently emphasized that the two-thirds point is a mark of eligibility and not an automatic right to release, the Mechanism has inherited a long standing practice of granting requests for early release upon completion of two-thirds of a sentence absent particular circumstances that warrant against it. This practice was initiated by Judge Claude Jorda, during his tenure as President of the ICTY, and continued by subsequent Presidents of the ICTY thereafter.
President Meron in Corić, para. 38
In Part 1 I promised to settle the question of whether International Residual Mechanism for Criminal Tribunals (IRMCT) President Carmel Agius has moved the goalposts and perhaps even demanded confessions of guilt from convicted persons by adopting additional factors for early release. To answer this question, we must first look at the history of early release at the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the IRMCT, and how the jurisprudence has evolved over the past 20 plus years. In this post I will deal with the practice directions. I will then end the series in the next post by examining a number of cases, which should provide a good basis to draw some conclusions and some best practices. Continue reading “EARLY RELEASE: Has IRMCT President Carmel Agius moved the goalposts? (Part 2)”
1967 Parole Hearings Man: Ellis Boyd Redding, your files say you’ve served 40 years of a life sentence. Do you feel you’ve been rehabilitated?
Red: Rehabilitated? Well, now let me see. You know, I don’t have any idea what that means.
1967 Parole Hearings Man: Well, it means that you’re ready to rejoin society…
Red: I know what you think it means, sonny. To me it’s just a made up word. A politician’s word, so young fellas like yourself can wear a suit and a tie, and have a job. What do you really want to know? Am I sorry for what I did?
1967 Parole Hearings Man: Well, are you?
Red: There’s not a day goes by I don’t feel regret. Not because I’m in here, or because you think I should. I look back on the way I was then: a young, stupid kid who committed that terrible crime. I want to talk to him. I want to try and talk some sense to him, tell him the way things are. But I can’t. That kid’s long gone and this old man is all that’s left. I got to live with that. Rehabilitated? It’s just a bullshit word. So you go on and stamp your form, sonny, and stop wasting my time. Because to tell you the truth, I don’t give a shit.
The Shawshank Redemption (1994)
A sentence imposed by some of the international(ized) criminal tribunals or courts, including the International Residual Mechanism for Criminal Tribunals (IRMCT), rarely reflects the years a convicted person will end up serving, just as eligibility for early release rarely corresponds with early release. Yet convicted persons, confusingly, consider early release upon eligibility as a given – an entitlement, as if it were a right. You cannot blame them. As they see it (as do many of us on the defense), baked into the sentence is the factor of eligibility for early release after serving the mandatory portion of the sentence, which, at the IRMCT, is 2/3 of the sentence imposed.
Early release is neither novel nor unique practice at the IRMCT. First adopted by the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) despite the absence of an express statutory provision, it is a time-tested and well-established practice in domestic penal systems. Continue reading “EARLY RELEASE: Has IRMCT President Carmel Agius moved the goalposts? (Part 1)”