Domestic violence as torture

Dr. Mary Hansel

Posted: 16 Aug 2010 02:24 AM PDT

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Recently, reports of detainee abuse in the “war on terror” have dominated the international legal discourse on torture. This focus on detainee abuse, however, should not obscure developments concerning the most common and pervasive form of torture: domestic violence.

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Last summer, a landmark judgment for victims of domestic violence, Opuz v. Turkey (2009), was handed down by the European Court of Human Rights (below right). The Court found the Republic of Turkey liable for torture or inhuman or degrading treatment, under Article 3 of the European Convention on Human Rights, because local officials had failed to prevent and redress the abuse of Nahide Opuz and her mother by Opuz' husband. The Court concluded that the state’s response to the abuse “was manifestly inadequate to the gravity of the offences in question,” in spite of noting that the Turkish authorities “did not remain totally passive” and that “ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3.” Turkey was ordered to pay Opuz 30,000 euros in compensation for violating Articles 2, 3, and 14of the European Convention.

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For years, human rights bodies have recognized that state failures with respect to domestic violence can amount to torture. An example is General Comment No. 2 - Implementation of article 2 by States parties, issued in 2008 by the Committee Against Torture.

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The ECHR decision in Opuz, however, seems to mark the first time that an international or regional court has held a state accountable for domestic violence, between partners, under a theory of torture — thus establishing the justiciability of the concept. Yet this aspect of the holding has received surprisingly little media attention.

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The lack of coverage may be partially due to the fact that, as IntLawGrrl Stephanie Farrior pointed out in a prior post, theOpuz judgment was also remarkable in other respects, including its acknowledgment of domestic violence as a potential form of gender discrimination.

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Women’s rights advocates have been pushing for greater recognition of domestic violence as a breach of international human rights for decades, and have made enormous jurisprudential strides. Seminal cases such as Velásquez Rodríguez v. Honduras, decided in 1998 by the Inter-American Court of Human Rights (left), helped establish the concept of state accountability for transgressions by non-state actors. Moreover, the traditional view that domestic violence is inherently a family matter beyond the purview of the state has been challenged by cases like Bevacqua and S. v. Bulgaria, rendered by the European Court of Human Rights in 2008.

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As a result, state failures to prevent and redress domestic violence can now beunderstood to violate a range of human rights. The late Rhonda Copelon (right), to whom I have dedicated this post, explained in early 2009:

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The next step in this legal and cultural revolution is to treat gender violence as torture. So far, rape — in war, by the state and where the state does not take measures against it — has been acknowledged in international law as an act of torture. Domestic violence — the most private and most common of all forms of gender violence — is on its way.

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The Opuz holding is an important milestone in this regard.

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The benefits of a “torture” designation are manifold, and have normative as well as practical value in enhancing legal protections for domestic violence victims:

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► These victims of stand to gain from the jus cogens status of the prohibition of torture. It confers a heightened level of international condemnation and sends a clear message that domestic violence is an unqualified violation of human rights.

► Another benefit is the resultant availability of the protections and complaint mechanisms that exist for torture. These can bolster international legal protection for victims of domestic violence.

► A third benefit is the synergistic effect of combining the efforts and resources of advocates focused on feminist issues with those of international human rights generalists.

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As Copelon articulated:

Simply recognizing domestic violence as torture will not solve the problem of domestic violence. But . . . it will help make domestic violence a front burner issue, hastening both the impartiality, adequacy and appropriateness of official responses and the cultural revolution that demands absolute and unconditional condemnation of such violence.

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Accordingly, as the world laments the mounting evidence of torture perpetrated in the “war on terror,” the same sense of indignation and urgency must be extended to the private torture that countless people endure on a daily basis.

Human Rights & Business: Beyond Corporate Social Responsibility

(Delighted to welcome back alumna Nadia Bernaz, who contributes this guest post)

With BP making the headlines with the industrial disaster in the Gulf of Mexico (prior IntLawGrrlsposts), many have been asking the question of how and whether giant corporations can be made accountable for their actions.

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The fact is that a combination common in the Western world -- tighter laws governing pollution and higher standards -- has not worked. Rather, it has often meant that multinational corporations, which no longer have to respect national boundaries, move elsewhere, where standards are lax and land and labour is cheap.

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The growing movement for volunteerism among corporate entities based on corporate social responsibility has had some benefit: it has highlighted the social responsibility that companies have when they invest in a given area. (Prior IntLawGrrls posts) However, it has also allowed many corporations to engage in green-washing their image through the display of sophisticated policies printed in expensive brochures.

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A new story that has attracted some attention recently concerns the activities of the Vedanta mining concern, one of Britain’s largest companies, who have built an aluminium producing plant in Orissa, in the east of India. Vedanta now wishes to mine bauxite in the region in order to get the plant running at full capacity.

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Orissa is one of India’s least developed states, with some of the poorest people in the world, with many indigenous tribes among them. It has been known for a long time that this part of India holds significant deposits of mineral resources, but with India speeding towards accelerated development, these resources have suddenly become crucial to sustaining growth.

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Vedanta maintain that their mining activities would bring jobs and increasing wealth to the local population. However, the indigenous Dongria Kondh tribe strongly oppose mining in their sacred mountains, and are concerned about the environmental impact of this activity in the region.

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An Amnesty International report issued in February supports their view.) The tribal members argue that they do not want to change their ancestral way of life, and have no interest in the type of development Vedanta has promised them. (credit for photo by Parth Sanyal /Reuters, captioned "A tribal woman with her child near the mining site of the alumina refinery in Orissa state")

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From an international legal perspective, the Vedanta story raises several important issues:
► The increased power of transnational corporations has made the seeking of accountability for their actions extremely difficult in environments where they may be able to operate freely, and often with the complicity of the government.
► While globalisation itself cannot be regulated, it is clear that new norm creation activities have been taking place in international law, not least with the presence of the World Trade Organisation.
► However, little of the ethos concerning human development and poverty alleviation feeds into these important discussions.

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To address these challenges, my home institution, Middlesex University in London, England, has created an MA programme in Human Rights and Business. The course covers areas of law such as international human rights law and the law of the WTO, and explores the relevance of these areas to multinational corporations -- especially those corporations operating in emerging economies. The modules are deliberately human rights law-centred, and go significantly beyond the concept of corporate social responsibility. The programme itself is tailored for busy professionals with significant online content and class contact restricted to two days a month (Friday-Saturday). More information here

Korean war

On June 27

Posted: 27 Jun 2010 01:04 AM PDT

On this day in ...
... 1950 (60 years ago today), President Harry S. Truman announced that he'd ordered U.S. troops to join South Korea in enforcing the June 25 U.N. Security Council Resolution 82, which, by a vote of 9-0 with 1 abstention, called for "an immediate cessation of hostilities" on the Korean peninsula and withdrawal of North Korean armies to the 38th parallel. Later on this same day, Council would vote 7-1 in favor of Resolution 83, which

Recommends that the Members of the United Nations furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore peace and security in the area.

War followed for years. Above left, a 1951 U.S. Army photo (credit) of Korean War refugees.

"Our strong support for ratification of CEDAW"

Posted: 30 Jun 2010

Our commitment to the rule of law is also reflected in our strong support for ratification of the Convention on the Elimination of All Forms of Discrimination Against Women and our signing of the UN Convention on the Rights of Persons With Disabilities — the first new human rights convention of the 21st century.

-- Remarks by Mary McLeod, Legal Adviser, U.S. Mission to the United Nations, at a UN Security Council Debate on Justice and the Rule of Law, 29 June 2010. Full text of remarks here.

Q: What are the seven UN member states that have not ratified CEDAW?
A: Iran, Nauru, Palau, Somalia, Sudan, Tonga, United States of America.

CEDAW was included in the treaty priority list sent by the Obama administration to the Senate in May 2009, and administration statements supporting ratification continue. The opening quote in this post and Secretary of State Hillary Clinton's remarks at the United Nations on 12 March 2010 (text and video here) are but a few examples.

But Senators need to hear from their constituents that ratification is a priority if CEDAW is to move forward. A list of Senators with their contact information is available here; Senate Foreign Relations Committee members are listed here.

Ballet at Sea? Who does BP think it is kidding?

Posted: 18 Jun 2010 08:10 AM PDT Much of BP’s s-called “charm offensive” (e.g. attempts to spin the Deepwater Horizon disaster as less than catastrophic) is already well known. The shameless attempts to minimize size of the spill, the ridiculouscommercials, the attempts to prevent reporters from informing the public about the horrendous effects the oil is having on wildlife (warning—very upsetting video) and beaches, the dead sperm whale found not far from the spill, not to mention the 11 oil workers who lost their lives, all show a company more focused on minimizing liability exposure than on minimizing the harms that flow (no pun intended) from its actions. But, even with all that evidence that BP’s crisis management cares more about damage control than on transparency, this “Report from the Gulf” on BP’s website made my jaw drop. I am all for finding the beauty in the everyday, but who do they think they’re kidding??? Oil skimming is dirty, polluted work that puts the health of the clean up workers, whom BP at first didn’t even provide with protective gear, at risk, even as it barely makes a dent in the toxic soup they are spewing into the Gulf. A few days ago, the Representatives Henry A. Waxman (D-Cal.) and Bart Stupak(D-Mich.), of the House Committee on Energy and Commerce sent BP a fourteen page letter detailing all of the multiple errors and poor choices that combined to create this disaster. Each one involved choosing to minimize costs by increasing risks. I have previously blogged about how the poor deregulatory choices the U.S. made over the last decade enabled BP to be so cavalier with the public good. (here, here and here). But, no amount of thinking about how this crisis occurred, or what lessons to learn from it could prepare me for the unmitigated gall of a company in full CYA mode. Hayward's testimony yesterday was more of the same. In case you missed it, here is a link to a Rachel Maddow segment where someone read the “report” aloud against a backdrop of what sea skimming actually looks like. p.s. This is a take that sums up the hypocrisy of BP’s “manage the public” approach to crisis response.

Deepwater Horizon Disaster: Day 46

Posted: 05 Jun 2010 03:16 AM PDT

Ever since the Deepwater Horizon began gushing oil into the Gulf of Mexico, BP has been dazzling the American people with a series of colorfully named “solutions:” the dome; top hat, junk shot, top kill. However, as the days turned into week, and the weeks turned into months, one thing has become crystal clear. None of these fanciful solutions had ever been tried in deep water, and BP was making things up as it went along.

It is hard to escape the conclusion that BP was actually engaged in an elaborate theatre designed to divert attention from the fact that the only real hope of stopping the blowout leak is a relief well—a solution that is by no means guaranteed and is still two months away.

BP knew it had no way to stop this leak on April 20, the day Deepwater Horizon exploded. They knew it earlier that day when they elected not to conduct a cement bond log test. They knew it on April 9, 2010, when they claimed in written comments that their deep water drilling activities “would not have an effect, cumulatively or individually, on the environment”. They knew it in Mid-April when they chose the "cheap but risky" method to case the well. They knew it when they successfully lobbied to avoid having to install acoustic triggers as backup blowout prevention system. Worst of all, they knew it when they assured MMS that:

In the event of an unanticipated blowout resulting in an oil spill, it is unlikely to have an impact based on the industry wide standards for using proven equipment and technology for such responses, implementation of BP’s Regional Oil Spill Response Plan which address [sic] available equipment and personnel, techniques for containment and recovery and removal of the oil spill.

Indeed, it is an open secret in the industry that nobody has any idea of how to stop a deepsea leak. Shell Oil admitted as much in a 2000Environmental Assesment filed with the Mineral and Mining Service. Shell received a permit anyway.

Viewed in light of this backdrop, BP’s parade of fancifully-named solutions looks like a deeply cynical attempt to manipulate public opinion. As long as breathless press coverage focuses on minute-by-minute updates of each new attempt, it diverts attention from the question of why deepwater drilling was allowed at all when there was no way to respond to a disaster. Think about it—there was no Plan B at all.

It took almost two months, but people are finally starting to ask the key questions: how is it that the oil industry got away for so long with blithe assurances that off shore drilling posed no environmental risks? Why did extraction technology innovations flourish while cleanup technologies stagnated?

Answering those questions bears the dirty underbelly of the free market. There was a private value attached to extraction technology—its development meant that oil companies could generate profits from new resources. Development of these technologies were thus an investment in future profits. Safety and cleanup technology, on the other hand, got marked down on the expense side of the ledger—something to be minimized whenever possible. It all boils down to simple math: companies capture all of the profits associated with new drilling enabled by deepwater technology, but bear only a fractional share of the costs associated with the absence of safety and cleanup technology.

The role for regulation is to force expenditures on these kinds of developments—the ones for which there is not a business case but are vitally important to protecting the public’s heath and safety.

This is not some deep new insight, available only in hindsight. We have seen time and again that unless the law specifies otherwise, in a system where the gains and profits associated with an activity are privately captured, but the harms and costs of fixing the problems it creates are socialized, companies cannot be counted on to protect the broader public interests. The simple and tragic fact is that without a requirement that companies develop technology to respond to a deepwater blowout, the companies had no incentive to do so on their own. Indeed, the Coast Guard reached exactly this conclusion about deep-water drilling eight years ago. Turns out, the Coast Guard was right. In the absence of a regulatory imperative, technology to get the oil out if the ground advanced, but safety and environmental technology stagnated.

Over the past few decades, our elected leaders have denied this fundamental truth. Instead, we have repeatedly been told that “burdensome regulation” hinders business. President Reagan campaigned on the idea of “getting governments off our back.” We are now reaping the fruits of a regulatory approach that placed its trust in voluntary, ad hoc actions in place of systemic requirements. Among the "burdens" lifted from BP's back were the requirement to conduct a worst case analysis and the requirement that it develop and file a blowout plan for the particular facility. Had they been required to file such a plan, BP would have had to estimate how big an oil leak a blowout might produce, what technology was available to stop a leak, and how long it would take to drill a relief well. All information that would be mighty useful now. Instead, BP compiled a 582 page Regional Oil Spill Response Plan that is so generic it might be funny, were the circumstances less tragic. The "Plan" is full of helpful suggestions like: "identify and shut of the source [of a spill] as soon as possible." (p. 178). Interestingly, one of the first actions the Plan recommends is to calculate the volume of the spill either through direct measurements, data from flyovers, or from visual assessment of the outflow (p.235-40)--something BP repeatedly told the American public could not be done with any accuracy.

Deepwater Horizon is only the latest in a string of disasters highlighting what just how misguided this laissez-faire approach has been. It is time to end lax oversight from understaffed and undermined agencies. The Bush Administration not only installed a revolving door between agency and industry, it went so far as to prohibit regulators from talking to the press, muzzling those within the agency who wanted to do their jobs well.

Gulf Coast residents are facing environmental and economic disruption well into the future; animals are dying by the thousands; vital ecosystems are destroyed, perhaps forever. All because of an obvious, but ignored risk. The corporations that we were good corporate citizens, and could be trusted to do what is right, did exactly what a rational, value maximizing individual with no constraints would be predicted to do—they invested in drilling technology and not in cleanup technology. The government that was supposed to be the bulwark against unfettered self-interest failed to force BP and the other oil companies to internalize the costs they were only too happy to externalize onto the rest of us.

Tellingly, not a single one of those “good corporate citizens” has imposed a voluntary moratorium on drilling. Even after the claim that “a spill is unlikely to have an impact" was exposed as a blatant falsehood, not a single entity that received drilling approval based on that falsehood has stepped up and done the right thing.

Instead, we see strategizing about how to head off more and better regulation.

It is past time for governments to take action. There must be a moratorium on ANY drilling, existing or new, until there is a proven technology for responding to a spill.

(Judicial) Diversity Quiz

Posted: 25 May 2010 01:06 AM PDT

Here's a question that bears pondering:

But why should two educational bodies provide all of the US's most senior judges?

So writes Finlo Rohrer of the BBC, pointing to the fact that if the Senate confirms nominee Elena Kagan this summer, all 9 members of the U.S. Supreme Court will have studied law at Harvard or Yale.

By way of a puzzler, this 'Grrl offers food for thoughts provoked by the BBC's question.

(1) Name the last Justice who did not study at Harvard or Yale.

(2) Which President nominated that Justice?

(3) What distinguishes that President from all his successors?

Bonus question: Name the last Justice to receive a law degree from a public university.

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Posted: 25 May 2010 01:01 AM PDT

Answers to the (Judicial) Diversity Quiz above:

(1) Sandra Day O'Connor, educated at Stanford both as an undergraduate and law student. At right is Justice O'Connor's official portrait (note the pink blouse), now hanging in the ground-floor gallery at the Court.

(2) As posted, Ronald Reagan nominated O'Connor in 1981.

(3) Reagan, a 1932 graduate of Eureka College in Illinois, is the last U.S. President not to have attended Harvard or Yale. This differently schooled President also nominated 2 others to the high bench who were not products of Harvard or Yale: Robert H. Bork (University of Chicago; Chicago Law) and Douglas H. Ginsburg (Chicago; Cornell Law). Neither was confirmed. In February 1988 the vacancy was filled by Anthony M. Kennedy(Stanford; Harvard Law), whom Justice Harry Blackmun (Harvard; Harvard Law) thus welcomed to his "good old no. 3" club. The 2005 nomination by President George W. Bush (Yale; Harvard MBA) of another person of diverse schooling, his White House Counsel, Harriet Miers (Southern Methodist University; SMU Law), also failed. (A chronology of all nominations to the Supreme Court is here.)

Bonus question: Charles Evans Whittaker, who served on the Court from 1957 to 1962, earned his law degree in 1924 from the University of Missouri-Kansas City. Whittaker served with the Court's next-most-recent-public-university-law-grad, Chief Justice Earl Warren (University of California-Berkeley). Appointing both was President Dwight D. Eisenhower, a graduate of the U.S. Military Academy at West Point, New York.

On April 8

Posted: 08 Apr 2010 01:04 AM PDT

On this day in ...
... 1985 (25 years ago today), India sued in the U.S. District Court in Manhattan to recover damages from the Union Carbide Corp., owner of the pesticide plant (left) in Bhopal where a gas leak 3 months earlier, "the worst industrial accident in history, killed about 1,700 people and injured as many as 200,000 more." (photo credit)Sought were not only damages to compensate victims and pay for the costs of emergency relief, but also punitive damages in order, the suit said,

'to deter Union Carbide and any other multinational corporation from the willful, malicious and wanton disregard of the rights and safety of the citizens of those countries in which they do business.'

The litigation eventually moved to India, where, in 1989, the Supreme Court of India approved a $470 million settlement.


(Prior April 8 posts are here, here, and here)

Human rights' new DOJ home

Posted: 31 Mar 2010 03:16 AM PDT

Brand-new in D.C.:
The Human Rights and Special Prosecutions Section, established within the U.S. Department of Justice yesterday.
HRSP, as it's to be known, is intended to combat human rights violations and to endeavor to bring war criminals to account. Its approval by Congress last week culminated plans 1st announced by U.S. Assistant Attorney General Lanny A. Breuer during testimony last October 6 before the Senate Judiciary Subcommittee on Human Rights and the Law.
This new section within the Criminal Division was formed through the merger of 2 existing DOJ units:
► 1st, the Domestic Security Section, which since 2002 has concentrated on international human rights violations, offenses brought under the under the Military Extraterritorial Jurisdiction Act and related statutes, and and complex immigration and border crimes. The section worked alongside federal prosecutors in the Southern District of Florida in a case about which we've posted: the 1st-ever conviction, secured in 2008 against Boston-born Chuckie Taylor (below) (image credit), son of Liberia's ex-President, under the United States' extraterritorial torture statute.
► 2d, the Office of Special Investigations, formed in 1979 to investigate and prosecute Nazi-era crimes. In 2004 OSI's mandate was expanded to citizenship revocation proceedings against perpetrators of genocide, official torture, and extrajudicial killing in other contexts. Among its notable cases is that of Ukraine-born John Demjanjuk (bottom) (photo credit), now on trial in Munich after having been stripped of U.S. citizenship and sent to Germany.
Leading HRSP is Teresa L. McHenry. Most recently chief of the Domestic Security Section, McHenry, also has served as head of DOJ's Alien Smuggling Task Force, as a trial attorney in the Organized Crime and Racketeering Section, as an Assistant U.S. Attorney in the District of Columbia, and as a prosecutor at the International Criminal Tribunal for the former Yugoslavia.
Meanwhile, Eli M. Rosenbaum becomes the Director of Human Rights Enforcement Strategy and Policy. Since 1995, he's led the Office of Special Investigations; before that, he was a corporate litigation associate with Simpson Thacher in Manhattan and general counsel of the World Jewish Congress.
Looking forward to good works from this new section.

ICC ... investigation on crimes against humanity ... the situation in Kenya

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http://www.icc-cpi.int/NR/exeres/D81AA5AF-CD76-4B3C-A4FC-AA7819569B44.ht

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Press Release: 31.03.2010

ICC judges grant the Prosecutor’s request to launch an investigation on crimes against humanity with regard to the situation in Kenya

ICC-CPI-20100331-PR512

Situation: Kenya

On 31 March 2010, Pre-Trial Chamber II, by majority, granted the Prosecutor’s request to commence an investigation on crimes against humanity allegedly committed in the Republic of Kenya.

In the decision, the majority finds that upon examination of the available information, bearing in mind the nature of the proceedings under article 15 of the Statute, the low threshold applicable at this stage, as well as the object and purpose of this decision, the information available provides a reasonable basis to believe that crimes against humanity have been committed on Kenyan territory. The majority moreover found that all criteria for the exercise of the Court’s jurisdiction were satisfied, to the standard of proof applicable at this stage.

The majority therefore granted the Prosecutor’s request, and allowed him to commence an investigation covering alleged crimes against humanity committed during the events that took place between 1 June 2005 (i.e., the date of the Statute’s entry into force for the Republic of Kenya) and 26 November 2009 (i.e., the date of the filing of the Prosecutor’s Request).

In his dissenting opinion, Judge Hans-Peter Kaul held that the crimes committed in the Republic of Kenya do not qualify as crimes against humanity under the jurisdictional ambit of the Statute. In particular, Judge Kaul disagreed with the majority on the requirements of a “State or organizational policy” as set out in Article 7(2)(a) of the Statute. Given the fact that the fundamental rationale of crimes against humanity as codified in Article 7 of the Statute was to protect the international community against the extremely grave threat emanating from such policies, Judge Kaul concluded that it had to be adopted either by a State or at the policy-making level of a State-like organization. Upon analysis of the supporting material, Judge Kaul concluded that there was no reasonable basis to believe that the crimes committed on the territory of the Republic of Kenya in relation to the post-election violence of 2007-2008 were committed in an attack against a civilian population pursuant to or in furtherance of a policy stemming from a State or an organization. Hence, Judge Hans-Peter Kaul felt unable to authorize the commencement of an investigation in the Republic of Kenya.

Background information

The Republic of Kenya ratified the Rome Statute on 15 March, 2005 becoming a State Party on 1st June 2005. According to the Rome Statute, the Court may exercise its jurisdiction in situations where the alleged perpetrator is a national of a State Party or where the crime was committed in the territory of a State Party.

On 6 November 2009, the Presidency of the International Criminal Court (ICC) issued a decision assigning the situation in the Republic of Kenya to Pre-Trial Chamber II composed of Judges Ekaterina Trendafilova, Hans-Peter Kaul and Cuno Tarfusser. If the Prosecutor intends to commence an investigation proprio motu in the Kenyan situation, he must first obtain authorisation from this Chamber. That is what the Prosecutor sought for on 26 November 2009 filing his request together with 39 appended annexes in approximately 1,500 pages.

Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya

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Breaking News: The ICC Approves Kenya Investigation

Posted: 31 Mar 2010 09:52 AM PDT

Pre-Trial Chamber II of the ICC has authorized the first investigation by the Prosecution proprio motu (on his own motion) into the post-election violence of 2007-2008 in Kenya portrayed in this video. The decision, made pursuant to article 15(4) of the Rome Statute, responds to the Prosecutor’s "Request for Authorisation of an Investigation Pursuant to Article 15" submitted on November 26, 2009.

Followers of the Court do not need to be reminded that Article 15 was one of the most controversial provisions of the ICC, with some states fearing that the Prosecutor would abuse his proprio motu powers by initiating politically motivated or frivolous investigations. To respond to these concerns, the drafters of the ICC Statute added a procedural hurdle relevant to Article 15 investigations only—the Prosecutor must with supporting material and victims’ representations convince a Pre-Trial Chamber that there is “a reasonable basis to proceed” at a very early stage in the investigation. This is the lowest evidentiary standard provided for in the Statute given the preliminary nature of the proceedings. Para. 27. In exercising this supervisory function, the PTC concluded that it should also consider the admissibility of the case as set forth in Article 53(1)(b) of the Statute.

With respect to the first requirement—that there is a reasonable justification for a belief that a crime falling within the subject matter, temporal, personal, and territorial jurisdiction of the Court has been or is being committed—the PTC found that there was a reasonable basis to believe that crimes against humanity were committed in Kenya. Most interesting in this regard is the PTC’s discussion of the requirement that the attack against a civilian population be pursuant to a State or organizational policy. The PTC noted that the attacks in questions tended to be ethnically-based and politically-motivated. Many attacks were between the key political parties in Kenya, such as the Orange Democratic Movement (which supported Raila Odinga in the 2007 presidential elections) and the Party of National Unity (which supported Mwai Kibaki), or were initiated by the police (left). The PTC noted that while some of the post-election violence was spontaneous or opportunistic,

a number of the attacks were planned, directed or organized by various groups including local leaders, businessmen and politicians associated with the two leading political parties, as well as by members of the police force. Para. 117.

The PTC determined that the crimes against humanity in question constituted murder, rape and other sexual violence, deportation or forcible transfer of the population, and other inhumane acts. In particular, the PTC noted that

• At least 1,000 people were killed, over 3,000 injured, 900 raped, and 350,000 displaced between December and February 2007-8. Paras. 131, 190.


• The Nairobi Women’s Hospital alone treated 443 survivors of sexual and gender-based violence during the relevant period.


• Many of these cases involved gang rapes and aggravated brutality and were conducted in front of members of the victim’s family. Para. 154.


• Inhumane acts included traumatic circumcisions and genital amputations, amputations, and other non-lethal injuries. Paras. 167-171.

With respect to the second requirement—Articles 17/18 admissibility, which invokes both complementarity and gravity—the PTC concluded that it would focus on potential cases that could be brought against potential defendants implicated in particular crimes within the Court’s jurisdiction and whether the relevant state is conducting national proceedings in relation to those crimes. Paras. 51-52. In finding the situation to be admissible, the PTC considered the following:

• The proposed bill to establish a special tribunal in Kenya to prosecute post-election violence has not been approved (though the Justice and Constitutional Affairs Minister recently vowed to revive the proposed tribunal once the new Constitution is passed).


• There are no domestic prosecutions, or prospect for same, for the serious crimes alleged in Kenya or in any other state, although some low level property and assault crimes are being investigated and prosecuted.


• No senior business or political leader is under investigation.


• There is a general unwillingness within the government to address the post-election violence.

The PTC further attempted to pin down the concept of gravity by noting that

it is not the number of victims that matter but rather the existence of some aggravating or qualitative factors attached to the commission of crimes … [such as]

• the scale of the alleged crimes (including assessment of geographical and temporal intensity);


• the nature of the unlawful behaviour or of the crimes allegedly committed;


• the employed means for the execution of the crimes (i.e., the manner of their commission); and


• the impact of the crimes and the harm caused to victims and their families.

Throughout this assessment, the PTC cited from the representations of the victims to gauge the gravity of the crimes alleged. Para. 196. The PTC noted the particular brutality of many of the attacks alleged. Paras. 193, 199. In addition, many rape victims contracted HIV and were abandoned by their families and many people lost their homes and possessions. Para. 195. The PTC concluded that the crimes alleged satisfy the elements of scale and noted with approval that the Prosecutor intended to focus on those in high-ranking positions who planned, incited, financed, or otherwise contributed to the organization of violence.

Although the Prosecutor’s request had focused on the immediate post-election period, the decision authorized him to investigate events since June 1, 2005 to the extent they relate to the crimes against humanity committed. Para. 205.

Judge Hans-Peter Kaul (Germany, at right)) dissented from the authorization to commence an investigation on the ground that the acts alleged did not constitute crimes against humanity in that they were not committed as part of an “attack against any civilian population” “pursuant to or in furtherance of a State or organizational policy to commit such attack.” Para. 4. He emphasized that in his estimation the ICC is not the right forum to investigate the crimes alleged and expressed concern that the majority opinion blurred the demarcation line between domestic crimes, prosecutable in domestic courts, and international crimes, of concern to the entire international community. Paras. 6, 9. Broadening the Court’s jurisdiction in this regard infringes upon state sovereignty, will generate perceptions of arbitrariness when the Court does not tackle all such situations, and risks turning the Court into

a hopelessly overstretched, inefficient international court, with related risks for its standing and credibility. Para. 10.

This ruling comes on the heels of the resignation of Betty Murungi (right) from her position as Co-Chair of the Truth Justice & Reconciliation Commission (she did not relinquish her spot on the Commission), about which we’veblogged before. Murungi’s protest comes after she and our friend and colleague Ron Slye (the only non-African on the Commission) publicly asked the Chair of the Commission, Bethuel Kiplagat (also right), to step down from the Commission, because he has been named as a potential witness to the murder of former Foreign Affairs Minister Robert Ouko during the Moi regime and because certain questionable property transactions involving him fall within the Commission’s mandate. The ICC did not mention the current stalemate with the TJRC as a ground for its admissibility ruling, but the unwillingness of Kiplagat to step aside so that the Commission can continue its work is consistent with the impression that there are elements within Kenya who would rather see impunity than accountability.