Most amusing sign-post yet

So, I took some time off revising my PhD for its publication as a book (an experience that's a blog in itself), for a morale-restoring bike ride around some neighbouring villages recently.

I decided to take a short-cut between Coton and another hamlet by cycling down a "bridle path".

Bridle paths seem designated for horses, but judging by the single, grass-bare groove in the soil are frequently used by bikes.

Mountain bikes, probably, the serious type, rather than my enfeebled second-hand incredibly low-slung town bike. Nonetheless, like a good Australian I didn't allow totally inappropriate tools to prevent me tackling a job.

Anyway, while bouncing along the remains of a corrugated track made, it seemed, by giant tractor treads I came across this gem of a warning sign (click for larger image):

Because, y'know, its not as if horses hadn't been traversing this area for a while already ...

No peace without justice: but can justice precede peace?

Two interesting articles on international criminal law came out of the New York Times stable this weekend.

Jean-René Ruez was an international war crimes investigator in the former Yugoslavia. An account of his experiences is published in the IHT. Ruez's motto is clearly, and understandably, "No peace without justice." But what happens when those goals come into conflict?

"The Pursuit of Justice vs. the Pursuit of Peace" reports on the plan of the ICC Prosecutor to seek an arrest warrant for Omar Hassan al-Bashir, Sudan’s president tomorrow.

The predictable responses have included fears that this will:

(1) jeopardise the safety of the joint UN/African Union peacekeepers - presently unable to defend even themselves properly - and other humanitarian workers in Darfur, already accused of being spies for the ICC;

(2) be an obstacle to any kind of peace settlement; and

(3) destabilise the region, as an already paranoid regime - armed by China - resorts to increasing violence.

The permanent International Criminal Court could well do more harm than good here. There is simply no realistic prospect of Omar Hassan al-Bashir being arrested in the short term. As I've outlined below, on the topic of Zimbabwe, criminal regimes simply cannot be prosecuted before there is stability in their country and a transition of power,which will likely require their cooperation.

The ICC prosecutor is an independent officer, who has a job to do - and he is doing it. The problem here is not him fulfilling his duty, it's that the Security Council approved referring Darfur to the Court as a substitute for taking any more effective action in the first place.

Perhaps in the long run, this will bring pressure to bear on the Sudan that will produce constructive results; but in the short term, it carries incredible risks for those on the ground in Darfur.

PS: for the more optimistic among us, Richard Goldstone has published possibly the best set of counter-arguments to my position. (Although the argument that "the indictments may delegitimize the government in the eyes of the Sudanese people, especially the elites in Khartoum" seems especially optimistic.)

Mugabe and crimes against humanity

Any number of bloggers and mainstream journals have begun to accuse Robert Mugabe of crimes against humanity. The Economist has one of the more sensible pieces.

Could Mugabe be charged with international crimes? Simply put, crimes against humanity are acts such as murder, torture, rape and politically-motivated severe human rights violations “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (see Article 7, Statute of the International Criminal Court). In addition, such an attack must be committed, at least under ICC law, “pursuant to or in furtherance of a State or organizational policy to commit such attack” (see the ICC Elements of Crimes).

A widespread and systematic attack against opposition supporters, planned and orchestrated by Zanu-PF and the government of Zimbabwe certainly appears to have proceeded the second-round presidential elections.

There are two principal obstacles to an ICC indictment for Mugabe. The first is that, as Zimbabwe is not a party to the Court’s Statute, the Security Council would have to refer the situation to Zimbabwe. Given Russia and China’s stance on intervention in another State’s “internal affairs”, that seems unlikely.

The second obstacle, and I say this with some trepidation, is common sense. Counter-intuitive as this may sound, any effort – even a successful one – to remove Mugabe is likely to be an obstacle to a peaceful transition in Zimbabwe.

Mugabe is not necessarily the largest part of the problem. As Allan Little of the BBC puts it:

Robert Mugabe is now cocooned with a group of men who came through the liberation struggle with him. ...

When the opposition talk of allowing Mr Mugabe to retire with dignity, these men know that this magnanimity does not extend to them; that a post-Mugabe Zimbabwe will expect a holding to account.

Mugabe, in a sense, is their prisoner. They won't let him go quietly, leaving them exposed to revenge.

Fear is the means by which they stay in power - the people's fear of them. But they too live in fear, fear of the reckoning that the people will, themselves, one day, demand.

A transition to a peaceful and stable Zimbabwe will, in the short term, require that all these men be bought off – odious a prospect as that may be.

So what role international criminal law? Is Geoffrey Robertson right to claim that justice is a necessary precondition to peace? In my view, yes and no. There will be no lasting peace without justice, but attempting to make it a precondition in every case risks destabilising post-dictatorship transitional societies.

The best option, in many ways, is the Argentine solution: allow the outgoing government to cover themselves in amnesty laws as the price of securing a stable democracy; then allow campaigners, national parliaments and courts, and international attempts at prosecution to progressively repeal those amnesties and put the criminals on trial.

Some might ask, but what would you have the West do? I actually think the very painful answer may be: if there is no reasonable prospect that anything you could do would make things any better, the right thing is to do nothing at all. Indictment of Mugabe, the laughable prospect of sanctions (how do you impose sanctions on a ruined economy?), or outright military intervention will only drive this cabal and their supporters to further violence. Indeed, any such action just makes Mugabe’s cabal and their ridiculous western-conspiracy rhetoric look more credible.

There will come a time to indict these men, but it may have to follow – not precede – a new internal constitutional settlement in Zimbabwe. In that process, only the voices of neighbours are likely to have any influence at all.

Dog poo, school districts and terrorism

Despite equivocal evidence as to their effectiveness, the UK has more CCTV cameras than any other country in Europe. A fairly high tolerance of surveillance has thus become part of British life.

Against this backdrop comes a bizarre, but not entirely unexpected example of the normalisation and extension of counter-terrorism laws: a law initially justified as a terror prevention measure is now being used by local councils to spy on residents for matters falling a long way short of serious organised crime.

The UK government said that the Regulation of Investigatory Powers Act 2000 was intended to provide:

"a statutory basis for the authorisation and use by the security and intelligence agencies, law enforcement and other public authorities of covert surveillance, agents, informants and undercover officers. It will regulate the use of these techniques and safeguard the public from unnecessary invasions of their privacy."

To this end surveillance was only to be authorised when "necessary", meaning on grounds that it was needed:

• in the interests of national security;
• for the purpose of preventing or detecting crime or preventing disorder;
• in the interests of the economic well-being of the UK;
• in the interests of public safety;
• for the purpose of protecting public health;
• for the purpose of assessing or collecting any tax, duty, levy or other imposition,
• contribution or charge payable to a government department; or
• for other purposes which may be specified by order of the Secretary of State.

The trick is that these powers extended to local authorities, some of whom have had a very interesting idea of what constitutes "crime" or "disorder".

We have so far seen examples where:

"a family in Poole in Dorset were tracked covertly for nearly three weeks to check they lived in a school catchment area"

(which, in fact, they did) and one council has admitted

that its officers were in the middle of an undercover operation using digital cameras and binoculars to catch those failing to scoop up their dogs' poo.

What is most worrying to my mind, though, is not the use of powers introduced to fight serious crime being delegated to local councils so they can snoop on poorly-behaved neighbours. Nor is it the blatant waste of resources. It's that this is proving popular in some quarters.

If those who will trade liberty for a little brief security deserve neither and will lose both, what is the fate of those who will trade liberty for slightly cleaner pavements?

Update: ICC Lubanga Trial

Mr Lubanga did not walk free on Tuesday. The International Criminal Court found his release would be premature while the Prosecutor goes on to appeal the ruling requiring disclosure of information initially gathered on terms of confidentiality.

As noted below, much of that information was provided by the UN and it is the UN which must waive confidentiality.

The Prosecutor has said of his appeal:

“The Foundations of the ICC have to be based on high standards and efficiency ... We will harmonise fair trials with respect for the institutions that provide information to us. The basic framework to solve this particular problem is settled with the UN and we will explain this clearly to the judges”.

I am ambivalent about this. If "the basic framework to solve this particular problem is settled" means that the UN will now allow the defence and the Court to see this material in a full and proper way, then that's fine.

If, however, the words "the basic framework ... is settled" and the worrying references to "efficiency" and "respect for the institutions that provide information" all add up to an assertion that existing practices are fine and all that judges require is a clearer explanation on appeal, then we have a real problem.

The right to a fair trial cannot and should not be balanced against "efficiency" of the value of the ICC's working relationship with the UN. If the ICC cannot proceed with a trial fairly (a different thing from "perfectly"), it should simply not proceed at all.

Whatever the outcome of the Lubanga appeal, it looks set to have consequences for the new ICC cases opening against Congolese militia leaders Germain Katanga and Mathieu Ngudjolo Chui.

The quiet, procedural death of the International Criminal Court?

Tomorrow, the first man expected to stand trial before the ICC – Thomas Lubanga - may simply walk away to board the first plane out of the Hague, following three years in prison and without his trial having ever officially commenced.

This staggering outcome follows from a practice of the Prosecutor’s office that the Trial Chamber described in a decision on 13 June as a “wholesale and serious abuse”. Without accusing the Prosecutor’s office of bad faith, it seems clear that a procedural device for collecting evidence under conditions of anonymity in exceptional and limited circumstances became the Prosecutor’s tool of first resort. As a result, the possibility of running a fair trial was fatally compromised.

Basically, in order to gather evidence, the Prosecutor’s office promised suppliers of information that the evidence they turned over would be kept confidential – even from ICC judges. The intention seems to have been that if any information was identified as needed to run the trial, the prosecution would go back to the suppliers and negotiate for waiver of confidentiality.

The flaws in this approach were:

1. this is not what Article 54 of ICC Statute, on a plain reading, allows the prosecutor to do (they are limited to using confidentiality only to gather leads which might point to evidence for use in the trial);
2. it meant the prosecution was not in control of the evidence, the witnesses were (and for “the witnesses” read “the United Nations”); and
3. it left the prosecution wide open to a defence allegation that they were withholding potentially exculpatory evidence that they were obliged to disclose, thus preventing a fair trial.
   

Inevitably, the defence did make that argument and it had some justification. The Prosecution claimed, as a result of confidentiality agreements concluded largely with the UN, that it was beyond its power to put some 207 potentially relevant documents into evidence. Of these 153 were UN documents.

The prosecution’s argument boiled down to “well, in fact, nothing we’re withholding would materially aid the defence or alternative evidence is available, so it doesn’t matter.” The Trial Chamber, quite properly, asserted that it was for the Court, not the Prosecutor, to weigh the evidence and the defendant was entitled to all potentially relevant prosecution material, not a selection of it.

I have more sympathy for the prosecution argument that UN and NGO witnesses in the field work under difficult conditions and confidentiality was needed to secure their cooperation (para 26). However, the Prosecutor’s office made a damaging concession (para 72), saying in its own evidence:

Of course, there was never any intention ... that these materials were received only for lead [finding] purposes. The point was to obtain these materials as quickly as possible for the sake of the ongoing investigation and then to allow the Office of the Prosecutor to identify the materials it wishes to use as evidence and then seek permission.

That is, the Prosecutor took the view that he could grant confidentiality first, and ask hard questions later. The result was not only a clear breach of the Statute but he also lost the practical power to control evidence, effectively putting UN legal counsel in charge of deciding what would go before the ICC.

As a result the Trial Chamber found that “the trial process has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial.” This is utterly scathing judicial language.

The Chamber stayed the trial indefinitely and will hear an application for Lubanga’s release tomorrow. Unless the Prosecutor secures a wholesale about-face from the UN on the confidentiality of 200 odd documents, procedural justice seems to demand the defendant be released.

The Office of the Prosecutor must be a very unhappy workplace at present. If these are the realities of gathering evidence in the ICC, the prospects of any cases ever commencing seem pretty slim.

Curse you rain!

I'm going to my first May Ball in two years, and its Coelacanth's first May Ball ever. Ah, May Balls and May Week.

... And of course it's raining. That typically English rain that if you stood out in it long enough would never be heavy enough to soak you through, but you would start to grow moss. How very familiar.

I have by now perfected the British obsession with the weather and so cross-referenced the hour-by-hour predictions on Weather.com and BBC Weather. The consensus is, it looks as though clouds will scatter and there will be hints of sun from 7-ish until sunset around 11 pm - when it will commence to bucket down heavily until dawn.

Black tie, sturdy boots and a good umbrella are called for.


Sunday afternoon postscript:

So the weather was nowhere near as bad as forecast and much warmer than a lot of May Balls I've been to.

We were able to head in early and up to a friend's rooms in college for some drinks and snacks (and a little of the football) beforehand, and when the ball itself commenced there were only two or three light bouts of misting rain.

For one of those, we didn't need to put up umbrellas as we were safely queuing for black-tie laser tag in an inflatable grid of tunnels - probably a highlight of the evening. (Along with ceidhle dancing, some decent - and indecent - stand up comedy and money-less gambling that taught me I should never be allowed to bet the farm on blackjack.)

Of nine who set out, six made the survivors' photo at 5.30 am after which Coelacanth and I got to wander 10 minutes back home through the dawn-lit streets of Cambridge and sleep until lunchtime.

It was a beautiful morning, a low English summer sun streaming over everything through the rain-cleared air. I'd forgotten how much fun it is, sometimes, to be awake before the rest of the world.

Working hard, eating hard

(Above, Coelacanth's* allotment: further proof of creeping Englishness.)


"Can't blog, eating" would just about summarise the last few days.

On Saturday one of my favourite teachers from the LLM was kind enough to invite a few of us to lunch at his cottage outside Cambridge. It was great to get out into the countryside out of town. Highlights of the day (other than the conversation) included, "How many degrees does it take to get an iron bench from a shed to a corner of the garden?"; "Kissinger? Well, not all of us had breakfast with him earlier this year"; Coelacanth enthusiastically weeding a garden bed while an emeritus professor of Trinity College took photographs and finishing the sparkling wine before lunch. All very civilised.

Last night, however, was dinner at our favourite Cambridge restaurant, Alimentum. I love it if only for the fact its incredibly classy interior looks out over a busy road onto a pine furniture warehouse.

The food as, always, was really very good indeed. But the discovery of the evening was wine no.44 on their list: a French-style cabernet blend from, of all places, Lebanon. Big flavours, amazingly well-balanced and a surprisingly light body. Quite a find.

Yes, Coelacanth and I have become wine snobs. But we're self-parodying wine snobs. So that's OK.

(*If "Coelacanth" seems confusing, see comments to the last post.)