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BOOK REVIEW – Incitement on Trial: prosecuting international speech crimes

[T]he man who prompted the deed was more guilty that the doer, since it would not have been done if he had not planned it.

Aristotle Rhetoric (2004:26)

By and large, there is not a great deal of social science research to support the claim that hate speech or inciting speech has a directly causal relationship to violence, and this mitigates against modes of liability like instigating/inducing/soliciting which include the elements of direct causation. There is, however, extensive empirical evidence indicating that denigrating speech has (often unconscious) conditioning effects on listeners and while not attaining the level of a sine qua non, may contribute to a set of conditions jointly sufficient to cause crime.

Incitement on Trial: prosecuting international speech crimes, by Richard Ashby Wilson, Cambridge University Press, 2017, Paperback $29.99, 356 pages, p. 17.

Professor Richard Ashby Wilson’s Incitement on Trial: prosecuting international speech crimes is an outstanding text on a frequently misinterpreted, if not ill-used, area of international criminal law – the crime of incitement. What distinguishes Incitement on Trial from many other texts on substantive international criminal law is that it is based in part on extensive original empirical research.

Before praise and criticism, reader beware: I have known Wilson since he was doing research for his book, Writing History in International Criminal Trials (another gem published by Cambridge in 2011), and had the privilege of participating with two other colleagues in a workshop conducted by Wilson as part of his field research for this text. Continue reading “BOOK REVIEW – Incitement on Trial: prosecuting international speech crimes”

A Guantanamo judge’s crisis of conscience: epiphanous or extravagant?

I’ll tell you, it was a sleepless night. The — I laid out kind of what I thought my options were yesterday. I thought about them again last night. I thought about them overnight. I wrote and rewrote what I was going to do. I went to the gym. I thought maybe the treadmill would either calm me down — which it has, of course. Give me more — more reflection. It did. And I went back and looked again, and looked again. (p.12367)

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Probably rose-colored glasses. Thought about that last night, too. I took a moment to clean them; they’re not as rose-colored today. And it’s been pretty shaken, and it might be time for me to retire, frankly. That decision I’ll be making over the next week or two I think it might be here, because I’ve never seen anything like it. I’ll just ponder it as we go forward. (p.12374)

Judge Vance Spath in United States of America v. Abd Al Rahim Hussayn Muhammad al Nashiri, R.M.C. 803 session, 16 February 2018.

Air Force Colonel Vance Spath, the presiding judge in United States of America v. Abd Al Rahim Hussayn Muhammad al Nashiri, the Guantanamo USS Cole war crimes trial, has had his faith in the law and what lawyers do shaken so profoundly that he is contemplating resigning from active military duty. Epiphany, moment of clarity, or chicanery disguised as faint claims of a tortured judicial soul?

For many of us following how the U.S. government has opted to prosecute “unlawful combatants” in its war on terror, our confidence in due process, fair trial rights, and the rule of law was shaken when the U.S. government established the pseudo-judicial institution in Guantanamo that masquerades as a war crimes court. Continue reading “A Guantanamo judge’s crisis of conscience: epiphanous or extravagant? “

The ICC: One Strongman’s tool is another Strongman’s annoyance

Uganda President Yoweri Museveni has turned hypocrisy into an art form. One moment he is railing against the International Criminal Court (ICC) for having the temerity to investigate, charge, and try individuals from the African continent alleged to have committed crimes falling under the ICC’s jurisdiction, and the next he is asking the ICC Prosecutor to charge anyone he deems out of favor, such as the recently sacked Uganda Inspector General of Police, General Kale Kayihura.

Uganda President Yoweri Museveni decorating General Kale Kayihura

Ok, maybe I am being simplistic. Museveni is not against the ICC exercising its jurisdiction in Africa (including Uganda) over some alleged criminals. He just does not think the ICC (or any court for that matter) should have jurisdiction over the likes of him – a sitting head of state. Why should he? The rule of law only applies to those not in power. Continue reading “The ICC: One Strongman’s tool is another Strongman’s annoyance”

THE EVIDENCE NEVER LIES: what to make of the Myanmar military’s bulldozing of Rohingya villages / alleged crimes scenes

Herbert Leon MacDonnell, a renowned forensic scientist, coined the phrase the evidence never lies, also the eponym of his terrific book. MacDonnell pioneered the application of scientific principles to crime scene evidence as a systematic approach to uncovering the truth. Continue reading “THE EVIDENCE NEVER LIES: what to make of the Myanmar military’s bulldozing of Rohingya villages / alleged crimes scenes”

ETHICALLY CONSTRAINED DEFENSE COUNSEL MUST WITHDRAW

Leaving the client without a lawyer to protect his rights could even be worse. I don’t know if I’ve done the right thing, but I don’t think I really had a choice.

US Navy Lieutenant Alaric Piette

In an earlier post I nominated Marine Brigadier General John Baker, Chief Defense Counsel of the Military Commissions Defense Organization at Guantanamo Bay, for the 2017 Defense Lawyer Profile of Courage. Brig. Gen. Baker risked his military career, his future, his retirement benefits and much more by doing the right thing when lesser defense counsel in his place would have caved in or have deluded themselves into believing that going along to get along was ethically the right thing to do.

Brig. Gen. Baker gave no quarter: he discharged three civilian members of Abd al-Rahim al-Nashiri’s defense team (Richard Kammen, Rosa Eliades and Mary Spears), who were no longer able to ethically represent their client because communications with their client were secretly being monitored by the US government. This left al-Nashiri with just a single military lawyer, former US Navy SEAL, Lieutenant Alaric Piette. By his own admissions Lt. Piette is not learned – qualified by specialized training and experience to defend Guantanamo accused in cases where the US government is seeking the death penalty. Continue reading “ETHICALLY CONSTRAINED DEFENSE COUNSEL MUST WITHDRAW”

Responding to Professor Roman Serbyn re Book Review: RED FAMINE – Stalin’s War on Ukraine

I received a comment on my review of Anne Applebaum’s latest book: RED FAMINE – Stalin’s War on Ukraine, from Professor Roman Serbyn. Professor Serbyn is an historian, and a professor emeritus of Russian and East European history at the University of Quebec at Montreal, and an expert on Ukraine. He is well known for his books and many articles about Ukrainian history, particularly the Holodomor. I thank Professor Serbyn for his comment and questions, and respond below. Continue reading “Responding to Professor Roman Serbyn re Book Review: RED FAMINE – Stalin’s War on Ukraine”

Executions and Mass Graves in Myanmar: Can intent be inferred from the recruitment of civilians by the military to assist in its operations or in doing its bidding?

On 8 February 2018, Reuters published a special report – Massacre in Myanmar: How Myanmar forces burned, looted and killed in a remote village.

In preparing the report, Reuters journalist Simon D. Lewis contacted me to comment on legal issues. Over several exchanges of emails and three lengthy telephone conversations, the primary discussion revolved around one central question: whether the recruitment of civilians to assist parts of the operation could be used to demonstrate intent. The extent of our discussions was reduced to a soundbite in print. Though it captures the essence of my assessment based on the factual predicate presented to me, the quote attributed to me warrants further elaboration considering that I invoked the crime of genocide as a possibility. Continue reading “Executions and Mass Graves in Myanmar: Can intent be inferred from the recruitment of civilians by the military to assist in its operations or in doing its bidding?”

SCRUTINIZING DUTERTE’S EXTRA-JUDICIAL KILLINGS: What has taken ICC Prosecutor Fatou Bensouda so long to act?

He is sick and tired of being accused. … He wants to be in court to put the prosecutor on the stand.

Harry Roque, Philippines Presidential Spokesperson

Finally. On 8 February 2018, ICC Prosecutor Fatou Bensouda announced that the Office of the Prosecutor (OTP) would open a preliminary examination on the widely publicized allegations of extra-judicial killings ordered by President of the Philippines Rodrigo Duterte, committed as part of his war on drugs.

Before I get to the finally, some context. Continue reading “SCRUTINIZING DUTERTE’S EXTRA-JUDICIAL KILLINGS: What has taken ICC Prosecutor Fatou Bensouda so long to act?”

WITHDRAWING FROM A CASE: Comment and Response

I greatly appreciate those who take time to comment on my blog posts. Sometimes praise. Other times critical. Often expanding the conversation. Always welcome. When appropriate, I will make a brief reply directly in the comment function. However, whether due to the subject matter or length of the reply, I will occasionally reply in a free-standing post. Today’s post is such an occasion, as I respond to a lengthy comment from Mr. Bryan Miller to my post WITHDRAWING FROM A CASE: Abandoning ship or doing what is in the client’s best interest.

Dear Bryan,

Thank you for your recent comment to my post WITHDRAWING FROM A CASE: Abandoning ship or doing what is in the client’s best interest. First, let me say that it is good to hear from you and see that you are doing well in your diverse private practice. Though I was sorry to see that you didn’t include in your professional bio your time working for me in The Hague as an extern on the Ieng Sary case at the Extraordinary Chambers in the Courts of Cambodia. In any event, many of your comments and questions are obviously beyond the scope of the post, though interesting nonetheless. I address them seriatim: Continue reading “WITHDRAWING FROM A CASE: Comment and Response”

THE LIBYAN REFERRAL: Trojan Horse or Realpolitik Casualty

I once again repeat my call to Libya to take all necessary steps possible to immediately arrest and surrender Mr al-Werfalli to the ICC. I also repeat my call on all States, including members of the United Nations Security Council, to support Libya in facilitating Mr al-Werfalli’s arrest and surrender to the Court.

…

Only when perpetrators realise there will be serious consequences for their crimes can we hope to deter future crimes.

I am dismayed that Mr al-Werfalli appears to remain in a position of command, and allegedly continues to commit crimes with impunity, despite an official statement from the General Command of the Libyan National Army (“LNA”) in August 2017 that Mr al-Werfalli had been arrested and was under investigation by a military prosecutor. I once again call on General Khalifa Haftar, as commander of the LNA and superior of Mr al-Werfalli, to heed my previous call to the LNA to work with the Libyan authorities to enable the suspect’s immediate arrest and surrender to the ICC.

The appalling cycle of violence and impunity in Libya cannot be allowed to continue for the sake of the Libyan people and the security and stability of the country and the region.

ICC Prosecutor Fatou Bensouda, Statement 26 January 2018

The International Criminal Court (ICC) Prosecutor Fatou Bensouda was prompted to speak out and to once again solicit the assistance of the United Nations Security Council (UNSC) concerning the situation in Libya. This time it was about the two car-bombings on 23 January 2018 detonated by unidentified persons outside the Baya’at Al-Radwan mosque in Benghazi, Libya that killed more than 34 civilians, including children, and wounded over 90 others, and a video surfacing the following day apparently showing Major Mahmoud Mustafa Busayf Al-Werfalli executing 10 persons in front of the Baya’at Al-Radwan mosque, purportedly in retaliation for the two car-bombings.

To appreciate Bensouda’s call for assistance from the UNSC, we must reflect back to 2011 when Libya was engulfed in a civil war. On 26 February 2011, acting under Chapter VII of the UN Charter, and consistent with Article 13(b) the Rome Statute, the UNSC passed Resolution 1970, calling on the ICC to investigate the mass atrocities and human rights abuses which occurred (and continue to occur) in Libya during and after the overthrow of Muammar Gaddafi’s regime. In keeping with its obligations, the Office of the Prosecutor (OTP) has unhesitatingly abided – despite the lack of any appreciable assistance from the UNSC. Continue reading “THE LIBYAN REFERRAL: Trojan Horse or Realpolitik Casualty”