14 Aug New Essay on SSRN
I have posted a new essay on SSRN, entitled “What Happens to the Acquitted?” Here is the abstract:
According to the ICTR, Emmanuel Bagambiki is an innocent man. The Trial Chamber and the Appeals chamber have each unanimously acquitted the former Prefect of Cyangugu of crimes relating to Rwanda’s horrific 1994 genocide. And on July 19, Bagambiki was reunited with his wife in children in Belgium, having been granted asylum just days earlier.
It is tempting to conclude that justice has been done in Bagambiki’s case. That conclusion, however, would be too facile: Bagambiki was acquitted in February, 2006, nearly 18 months before his family reunion. In the interim he lived in a safe-house in Arusha paid for by the United Nations, wanted by Rwanda for trial on related charges and unable to convince Belgium that he posed no danger to its peace and security. Bagambiki, moreover, is one of the lucky ones: the nightmare of being “free” but having nowhere to go continues for two of his acquitted roommates in the safe-house, Andre Ntagerura and Andre Rwamakuba, Rwanda’s minister of transportation and former minister of education respectively.
Bagambiki’s ordeal and Rwamakuba and Ntagerura’s ongoing plight illustrate one of the basic problems facing international criminal tribunals: what to do with the acquitted. An acquitted defendant normally has two options: return to his country of origin, or find a third country that will grant him asylum. Both options, however, have been problematic for defendants acquitted by the ICTR — and are likely to prove equally problematic for defendants who may be acquitted in the future by the ICC. This short essay explains why — and identifies what the international community should do about it.
As always, comments are welcome!
Larry Solum posted a link over at his Legal Theory Blog with a nice comment: http://lsolum.typepad.com/legaltheory/
Way off topic Kevin, but if Opinio Juris veterans have interests outside their well-cultivated specialties in international law and politics they might take a look at the Medical Humanities Blog, where I’m guest blogging, the inaugural posts on what’s termed Traditional Chinese Medicine (TCM). You’ll have to scroll down a bit for my introduction (Aug. 3) and first post (Aug. 6): http://www.medhumanities.org/
I promise this will be my first and last comment devoted to unabashed self-promotion.
At p. 7, you note the application of the rule of non-refoulement to embassies. Of course, the issue arises also under the similar rules of Article 3 ECHR (Soering v. UK) and Article 7 ICCPR (Kindler v. Canada). Some of the material relating to embassies and consular posts is examined in the English case of R. (B) v. Secretary of State for Foreign and Commonwealth Affairs [2004] EWCA Civ 1344, [2005] QB 643. WM v. Denmark, discussed by the Court of Appeal at paras. 35-39, may be particularly in point. The Court of Appeal was ‘content to assume’ in B that embassies and consular posts are within the sending State’s ‘jurisdiction’ for the purposes of Article 1 ECHR (Article 2 ICCPR), but went on to decide that the Convention would not oblige a State party to violate general international law, that granting consular asylum would usually violate such law, and that the ECHR was therefore not violated by the British consul’s refusal to grant asylum. [The House of Lords has recently confirmed the view that embassies and consulates fall within Article 1 ECHR: R. (Al-Skeini) v. Secretary of State for Defence [2007] UKHL 26, [2007] 3 WLR 33, para. 132.]… Read more »
Tobias,
Thanks so much for that — very, very helpful. I will look at the cites and likely mention them in a footnote. I need to add a footnote in any case (thanks, Fiona!) about non-refoulement under CAT and the ECHR.
By the way, would you mind sending an e-mail to my Auckland address — k.heller@auckland.ac.nz? I can’t seem to find your e-mail anywhere…
Kevin
Will do in a moment. But first: on p. 8, you mention the possibility that a State may incur responsibility under Article 33 for removing a person to another State that then sends that person on to a dangerous place. On that, you could do worse than consider R. v. Secretary of State for the Home Department, ex p. Adan, ex p. Aitseguer [2001] 2 AC 477 and T.I. v. United Kingdom, an admissibility decision of the ECtHR (that I can’t link to at the moment; the page on the ECtHR’s website can’t be displayed).
Welcome Kevin!! Anything to avoid my own work!