Last Week in International Law

1. Convention on the Rights of the Child (CRC)’s 20^th Anniversary

The CRC is the most universally accepted international human rights treaty in the world, ratified by every country except the US and Somalia.  The CRC is based on the principles of non-discrimination; the best interests of the child; children’s rights to survival, development, and protection; and children’s right to participate in decisions affecting them.  Ten years on, in Canada, it became one of the issues in the Baker litigation, in which the SCC decided that although the CRC had not been implemented into domestic law, its values should still inform the contextual approach to domestic statutory interpretation and judicial review.

Twenty years on, UNICEF reports fewer child deaths, improved child health, and improved and more gender-equal primary school enrollment.  However, approximately 1 billion children still suffer some form of “material deprivation”, and children are disproportionately likely to suffer the negative effects of the global economic crisis and climate change.  UNICEF reaffirms the importance of the best interests principle in governance; capacity-building to realize children’s rights; support for social and cultural values that respect children’s rights; and cooperation “to make the vision of the Convention a reality for every child.”

2. Khadr’s Day at the SCC … and US Military Tribunal?

On November 13, the SCC heard arguments in the case of former child soldier/alleged terrorist and Canadian Guantanamo detainee Omar Khadr.  In support of its request to set aside the Federal Court of Appeal order to repatriate Khadr, the government is arguing no new Charter remedy, no new s. 7 Charter breach, the non-existence of any “duty to protect” which would require repatriation, and the inappropriateness of repatriation as a remedy.  In support of its request to dismiss the appeal, Khadr’s counsel is arguing the extent of Canadian government violations and complicity in violations of Khadr’s s. 7 Charter rights, and the existence of a related and restricted “duty to protect” which would require repatriation.

Chief Justice Beverley McLachlin agreed that Khadr “suffered terribly,” but challenged, “How is demanding or ordering repatriation going to fix that in the past?” Justice Rosie Abella probed, “Given the fact that no court has yet internationally accepted that there is a duty to protect, how do we get to the remedy that was imposed by the Court of Appeal and the trial court in the absence of such a duty?”  Government counsel warned against “saying, ‘we’re challenging the wisdom of the government decision,” while Khadr’s counsel maintained, “[Repatriation is] something that is going to provide [Khadr] with a benefit in exchange for the violation that has occurred.”  The same day, the US government announced that Khadr would face trial under the controversial US military commission system.

For more information, see the Ottawa Citizen, Globe and Mail, and National Post articles.

3. Khalid Sheikh Mohammed Headed to NY Federal Court

The US government announced that alleged 9/11 mastermind Khalid Sheikh Mohammed would face criminal trial in the no less controversial jurisdiction of the NY federal court.  In the Globe and Mail, Alan Dershowitz opined that Mohammed would likely be charged with some form of mass murder.  Depending on his plea, preliminary issues may include the voluntariness of any confession, the submission of sufficient evidence for the prosecution not obtained under torture and not related to national security, and settling on the fairness of the venue and the selection of a jury that may be called upon to impose the death penalty.  In the New York Times, victims’ relatives and other New Yorkers expressed a range of emotions.

4. Germain Katanga and Mathieu Ngudjolo Chui at the ICC

The ICC announced that the trial of Katanga and Chui, the second trial arising out of the situation in the Democratic Republic of Congo (DRC), will open on November 24.  Katanga and Chui, high-ranking figures in the Force de résistance patriotique en Ituri (Patriotic Resistance Force in Ituri, FRPI) and the Front des nationalistes et intégrationnistes (National Integrationist Front, FNI) respectively, have been charged with three crimes against humanity and seven war crimes.  Both the FRPI and the FNI are alleged to have conducted widespread and systematic attacks against civilian populations in the Ituri region.  Katanga and Chui are alleged to have participated in the planning and implementation of an attack on Bogoro village in February 2003, killing at least 200 civilians.  

For more information, see the ICC press release and Trial Watch profiles.