Atheists, lies and suppressed knowledge of God

In the second half of Craig’s latest "Reasonable Faith" podcast, he talks about how, he supposes, atheists know that God exists, despite the fact that they assert that they don’t. I’d previously said in a post that Craig’s view would seem to have the consequence that atheists are lying about that, then. Actually, maybe that doesn’t follow. In the podcast, Craig denies his view is that atheists are lying when they deny they know God exists. We should accept that denial.

However, Craig’s explanations for why atheists are not, then, lying when they claim they don’t know when they do is not, I think, very convincing.

First he draws an analogy with someone who tries to rationalize away or suppress what they know. His example is of a married man who has an affair.

The human psyche is so capable of rationalization and suppressing things that we find uncomfortable that I think it's very plausible to think that an atheist could somehow suppress the knowledge of God or rationalize it away so that he doesn't have to face it overtly. You can think of cases, especially involving moral misbehavior, where this human ability to rationalize comes out. For example, men who get caught in sexual affairs will, at least in the beginning stages of the affair, typically rationalize away the behavior even though they know that what they are doing is wrong.

Another example would be, I suppose, a man that does not love his wife, but suppresses this knowledge and behaves like and says that he does in a attempt to fool both himself and his wife.

These are plausible examples of suppressed knowledge. But do they make the point Craig wants? Suppose the first man says, “I did nothing wrong,” when asked about his affair. He knows deep down that he did do something wrong. Would we say that this man is lying? Would you?

I’d say he was, both to others and also to himself. True, he may at that the moment he says it mean what he says. But what he says is nevertheless, deep down, a lie.

But if that is right, then Craig’s chosen analogy backfires on him. If the atheist similarly suppresses his knowledge that God exists, and says, meaning it, “I don’t know God exists”, he is also, deep down, lying both to others and himself.

Perhaps Craig would deny the man who has the affair is lying. "A lie", Craig might insist, "Cannot be sincerely asserted. It cannot be meant."  But is this true? It doesn't seem to me to be true (the above example involving the man having an affair seems to be a counter-example, in fact - he means what he says when he says it, but , it seems to me, he's still lying). At the very least, the affair example does not strike me as a clear cut example of someone's not lying. But then it doesn't really help support Craig’s case much, if at all.

Craig’s other thought is to borrow Plantinga’s idea that atheists may have a malfunctioning sensus divinitatis or God-sense. A religious person may know God directly via the operation of their healthy sensus divinitatis. But the poor atheist’s God-sense does not operate properly. It's been corrupted by sin.

That’s an interesting idea, but it hardly helps Craig given that the result of atheist’s non- or mal-functioning sensus divinitatis will be that they don’t know God exists (at least not by that route). Craig's view is precisely that atheist does know God exists – so, as it stands, his appeal to Plantinga actually ends up undermining Craig’s position, not supporting it. It’s odd Craig doesn’t spot this.

Of course, Craig may want to develop his Plantingian explanation in some way, but as it stands it fails.

So, perhaps Craig is right that the view that atheists know that God exists does not have the consequence that they are lying when they say they don't. But Craig has so far failed to come up with a clear explanation of why they aren't lying.

However, the really interesting issue about Craig’s suppressed knowledge thesis is not whether atheists are lying when they say they don’t know God exists.  That's not a very interesting question.

Craig seems to think we atheists just want an excuse to take offence at the suggestion that we are liars. He says: “I think the reason atheists raise this is because they want to be able to get their backs up and take righteous offense and indignation at being called liars by these Christians and theists.”

Frankly, I’m not bothered at all about that. The more interesting issue is whether we atheists do know God exists, choose to suppress that knowledge, and so do deserve to burn in hell for eternity as a result. Once it’s been suggested that we atheists are so morally depraved and disgusting that we deserve infinite torture, adding “Oh, and by the way, you’re also lying,” is hardly much of an additional insult.

The main reason I’m interested in this issue is not that I want to take righteous offense at the claim that I'm lying, but rather that this sort of Craigian "suppressed knowledge" view and its connection in his mind with the concept of damnation, involves such a foul and twisted – and I think potentially dangerous - vision of humanity. And also that it is pretty obviously false. I’ll post on that shortly.

William Lane Craig's latest attack on me

William Lane Craig has just devoted an entire 17 minute episode of Reasonable Faith to me, available here. I’m honoured!

The first half of the podcast focuses on my posting a quote from him, a quote that was, at the time, being widely posted and discussed on the internet. Here it is:

The person who follows the pursuit of reason unflinchingly toward its end will be atheistic or, at best, agnostic.

Go check my post here. I provided a direct link to Craig's original full article, and then immediately said: “But does Craig really mean what he appears to mean? You should make your own mind up about that.”

In his latest podcast, Craig says that I should have checked the context of the quote – the original article in which it appeared - and not just repeat it as a soundbite quote out of context.

But of course I did check it. In fact I even provided a direct link to the full article and encouraged readers to go check the original article themselves and make up their own minds!

So Craig is here misleading his listeners – he is missing out key pieces of information about my post in order to give a bad impression of me.

Craig later says that I know (and knew) that he doesn't believe what he might appear to be saying in the above quote (about 6 mins 12 secs - P.S. listen carefully! P.P.S. Yes I know that at about 8 mins he says the he, like me, was suckered by someone into accepting a quote out of context that he should have  checked, but do please pay close attention to 6 mins 12-25 secs, where he makes a more serious accusation). So he implies I am deliberately and scurrilously misleading people by posting it. I should have corrected the misinterpretation instead.

But actually, I was, and am, remain deeply baffled by that sentence. Even within the context of the entire article, it is baffling. It's baffling precisely because (i) it doesn't fit well with other things Craig has said, yet, (ii) even when placed in context, does seem pretty unambiguous.

Ironically, at the end of Craig's podcast, while the mood music is playing, he rather condescendingly lectures us - and especially me, of course - on how we should try to read people in the most charitable way, "with sympathy". That is ironic. Shouldn't he have given me that courtesy, rather than (i) asserting that I deliberately posted a quote out of context that I knew misrepresented his view (when I might have been, and indeed was, at that point just baffled), and (ii) telling his listeners I had not bothered to check the context when I very obviously had - I even provided a link.

The other half Craig's podcast looks at my discussion of the view that atheists know God exists "deep down", and my subsequent comment that it would seem to follow that atheists are lying when they say they don't know God exists. Craig explains in the podcast that he does not suppose atheists are lying, and explains why they are not. Now, maybe it doesn't follow from the fact that atheists are asserting what they know not to be true that atheists are liars. That's an interesting issue. But the explanations Craig gives in the podcast for why atheists are not, then, liars both fail. I'll explain why in the next post.

____________
Postscript. By the way here's the quoted sentence in the context of the full paragraph in which it appears:

A robust natural theology may well be necessary for the gospel to be effectively heard in Western society today. In general, Western culture is deeply post-Christian. It is the product of the Enlightenment, which introduced into European culture the leaven of secularism that has by now permeated Western society. While most of the original Enlightenment thinkers were themselves theists, the majority of Western intellectuals today no longer considers theological knowledge to be possible. The person who follows the pursuit of reason unflinchingly toward its end will be atheistic or, at best, agnostic.

I'm still kind of baffled by this. Here's the interpretation that seemed most obvious to me at the time, and which I am still not sure is wrong. Given a non-theistic culture, the application of reason will not lead to theism. It will lead to atheism or at least agnosticism. However, within a Christian, theological world-view, theism and Christianity can be shown to be rationally, internally consistent/coherent. We have two world views - both of which are internally rational and reasonable, each with their own presuppositions.

Notice this interpretation would be consistent with Craig's claims elsewhere that theism/Christianity are rational, reasonable etc, and the title of his podcast "Reasonable Faith". It's also a mainstream religious view (it's Alister McGrath's, I think). So I saw no very obvious reason to reject it as an interpretation of the above passage. And it does make the final sentence come out as true. Craig is not just asserting that this is the mistaken view of secular "Western intellectuals".

On another reading, Craig is indeed just saying in the final sentence what most of today's Western intellectuals wrongly believe. The final sentence states, indeed flags up, a falsehood. Though on this reading the paragraph ends very awkwardly. It's not the most natural reading, I think.

It would be good to know, just for clarity's sake, what Craig meant. It's certainly an uncharacteristically opaque passage open to various interpretations.

The key point of relevance, here, though, is that I did not know, and am still not absolutely sure, what the quoted sentence (and indeed paragraph) means exactly, and whether it it is meant to be true. Hopefully Craig himself will clarify.

The Indian Constitution: A Short Introduction

A short book of mine, The Indian Constitution (Oxford India Short Introductions), will be published by Oxford University Press towards the end of this month, and is now available for pre-order on flipkart. The books aim to introduce the Indian Constitution and ask questions about some of the most important debates that surround Indian constitutionalism. The following are details from the jacket cover:


Giving identity to over a billion people, the Indian Constitution is one of the world's great political texts. Drafted over six decades ago, its endurance and operation have fascinated and surprised many. In this short introduction, Madhav Khosla brings to light its many features, aspirations, and controversies. How does the Constitution separate power between different political actors? What form of citizenship does it embrace? And how can it change? In answering questions such as these, Khosla unravels the document's remarkable and challenging journey, inviting readers to reflect upon the theory and practice of constitutionalism in the world's largest democracy.

"Written in clear, jargon-free prose, this critical study will be a marvellous resource for lawyers and non-lawyers alike." - Justice Ruma Pal, Former Judge, Supreme Court of India

"A wonderful introduction to an exciting subject. Khosla presents an analytical and deeply insightful account of one of the landmark constitutions of our time." - Justice Aharon Barak, Former Chief Justice of Israel

"The Indian Constitution anchors India's political identity and has shaped the country's destiny-though not always in ways the founders anticipated. Yet, for all its formal centrality and its easy invocation by disparate political projects, the ambiguities of its commitments and the vicissitudes of its history remain little understood. In this remarkable book ... Madhav Khosla compels us to think seriously both about the fitful evolution of constitutional interpretation and about the place acquired by the Constitution in our democratic life. Khosla's outstanding book is far and away the most stimulating introduction to the life of our Constitution: and it signals the arrival of an important new voice in our intellectual life." - Sunil Khilnani, author of The Idea of India

Legal Education: Protesting the BCI's Consultative Deficit

Mainstream media has been abuzz with news of a paralytic strike by the Bar Council of India (BCI), protesting against the divestiture of their control over legal education via the proposed Higher Education and Research (HER) bill. The strike has had its fair share of critics, including a contempt petition as also a letter to the Supreme Court of India. 

Without going into the merits or otherwise of the HER bill, it is clear that the BCI has never consulted meaningfully with legal academics, despite a statutory mandate to do so under the Advocates Act. In an Indian Express editorial, I'd argued as below:

"Some say that law is an instrument of power. Little wonder then that regulating access to the corridors of legal power is lucrative business — particularly when the regulatory turf lies in the world’s largest democracy, which now boasts more than 900 law schools.

Recently, the Bar Council of India (BCI) was in the news for protesting attempts by the Ministry of Human Resource Development to usurp its superintendence of legal education through the Higher Education and Research Bill, 2011. This squabble is merely one of many in a series of turf wars between various agencies to assert their dominance over legal education.

All of this naturally raises the question: does the BCI have the competence to regulate legal education in the first place? In terms of legal competence, the answer appears to be in the affirmative. As for institutional competence, the less said, the better.

Even in terms of legal competence, there is an important caveat that seems to have been missed by the BCI in all these years of regulatory dominance. Section 7(1)(h) of the Advocates Act, 1961, requires the BCI “to lay down standards of... (legal) education in consultation with the Universities in India imparting such education”. Past records do not suggest any meaningful consultation with universities. While castigating this deficiency, the National Knowledge Commission noted that of the 10 members of the BCI’s Legal Education Committee, only one was a full-time legal academic.

The lack of proper consultation is not just anathema to the law, but has also had an impact on the quality of BCI norms... To add to its woes, the 184th Law Commission Report noted several complaints from law schools that the BCI’s directives often “tend to be arbitrary.

......the BCI would do well to keep in mind that the purpose of law schools is not to merely mass-produce technically competent lawyers ready to serve the bar. Rather, it is to cultivate critical thinkers, social reformers and creative leaders free to pursue an array of career options. Law schools must therefore be encouraged to experiment with their curricula and conceptualise courses that foster critical and creative thinking beyond the black letters of the law."


Protest Letter

In order to protest against this sordid lack of consultation, some of us came together and drafted a letter to the BCI. This letter has been signed by leading academics such as Professor MP Singh (ex VC of NUJS and current Chairman of Delhi Judicial Academy) and Professor NS Gopalakrishnan of CUSAT.


The protest letter takes issue with deplorable comments made by the BCI in its submission to the Parliamentary Committee reviewing the Higher Education and Research Bill (HER). I extract the relevant portion of our letter below:

"We take very strong exception to your statement to the Parliamentary Standing Committee as below:
  

"How the academicians can decide the curriculum of legal education? The litigants, the needy people come in contact of lawyers, explain their problems and the lawyers and judges in turn, work out the solutions. So the lawyers are well conversant with the problems, and they are the best person to decide as to what is needed for the students perusing legal education. The norms, curriculum and syllabus are thus, the domain of Advocates, so far legal education is concerned. The academics have a limited role to teach the books which are almost all authored either by noted lawyers or the Judges."

We believe this is a seriously misguided sentiment and severely denigratory of the role that legal academics have played and continue to play in legal education today. While the efforts of practising lawyers and judges are no doubt important, the primary responsibility for legal education ought to vest in those that teach law full time i.e. legal academics/educationists."

The letter also calls into question a BCI circular mandating students and law teachers to register and pay money for an alleged online portal/database.
 

If any legal academics (or researchers) are interested in signing onto this letter, please email me (shamnad@gmail.com) and I will add your name. Please mention your full name, designation and your institutional affiliation (as you would like to appear in the protest letter). Please do this within the next couple of days, since we intend to submit this to the BCI at the earliest.
 

Petition at Change.org

We would also like to solicit the support of legal practitioners, law students and others within the larger ecosystem of the "law" (which really includes any member of the public). For this purpose, we have a pithy petition at change.org. You can support the petition by simply clicking on the link here and adding your signature.

CFI UK's Conspiracy Theory Day - the videos

Ian R Crane (an actual conspiracy theorist) - "Conspiracy Theory vs Deep Geopolitics"

Chris French and Robert Brotherton "Conspiracy Minded"
Jamie Bartlett and Carl Miller (from DEMOS think tank) "Truth and The Net"
Karen Douglas on Conspiracy Theories

Information Technology Act, Mandatory Disclosure, and Self Incrimination

Abhinav’s post on the scope of protection under Article 20(3) provides an extremely interesting insight into the Supreme Court’s jurisprudence. Here, I adopt those legal standards (which some clarifications) to test the validity of Section 69(2)-(3) of the IT Act – which mandates the disclosure of encrypted information by a ‘subscriber’ on the direction of the Controller.

Under the IT Act, a subscriber must extend all facilities and technical assistance to decrypt the information. A ‘subscriber’ is defined under Sec. 2(zg) as a person in whose name the Digital Signature Certificate is issued. In default, a subscriber shall be punished with an imprisonment for a term which may extend to seven years. I believe that this forced disclosure of encrypted data violates the constitutional proscription against self-incrimination under Art. 20(3). First, the term subscriber is wide enough to include individuals ‘accused of any offence.’ Second, the disclosure envisaged in Sec. 69(2) is self-incriminatory. It is in this second string that I agree with and adopt Abhinav’s reasoning.

A subscriber includes an Individual ‘Accused of Any Offence.’

Keeping in mind the broad character of the constitutional guarantee against self-incrimination, this Court has interpreted the phrase ‘accused of any offence’ to include persons other than those who are formally accused. In Shah v. Guha (AIR 1973 SC 1196), the Court clarified that an accused includes a person against whom a complaint has been lodged with the police in the form of a first information report. In fact, in Nandini Satpathy v. PL Dani (AIR 1978 SC 1025, para 46), the Court unambiguously went further to state that even those suspected of an offence may claim the privilege against self-incrimination.

A catena of cases have categorically held that Art. 20(3) extends to the anterior stages of the investigative process as well, before a case is presented to the Court. Indeed, a contrary interpretation would render the protection in Art. 20(3) rather weak. (Kathi Kalu Oghad, supra, pg. 26-28; State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru, 2005 Cri LJ 3950; Directorate of Enforcement v. Deepak Mahajan and Anr., 1994 Cri LJ 2269; and Balkishan A. Devidayal v. State of Maharashtra, 1980 Cri LJ 1424).

Accordingly, I believe than an accused, as defined above, may be a subscriber under the Act, i.e. if information pertaining to the alleged crime by the accused is contained in a digital resource protected by an encrypted key in the possession of the accused. In such cases, Sec. 69 mandates the disclosure of encrypted information by the accused himself, which clearly brings it within the ambit of Sec. 20(3).

The disclosure envisaged in Sec. 69(2) is self-incriminatory.

This section of the argument proceeds in line with Abhinav’s argument. As he points out, Article 20(3) incorporates a guarantee against testimonial compulsion (M.P. Sharma v. Satish Chandra, [1954] SCR 1077, pg. 1087-88). There, the Court noted that ‘every positive volitional act which furnished evidence is testimony’. This was met with approval in Kathi Kalu Oghad, supra, by the majority (pg. 26-28) and minority (pg. 40).

To add to Abhinav’s reasoning, I refer to the European Court of Human Rights decision in Funke v. France, ([1993] 1 CMLR 897 25) which (in a brilliantly explained judgment) specifically supported this construction - noting that the evidence must have an existence independent of the will of the suspect (Funke clarifies and follows the Saunders test).

Abhinav refers to the question of intangibility of the evidence; and the absence of an independent physical existence. To add to that, one must remember that a password or encryption key has an existence which depends upon the will of the accused, in that if he refuses to or is unable to disclose it - the password does not exist anymore. Unlike the key-drawer example, where a refusal to disclose would not render its existence defunct, a refusal to disclose an encryption key or password have a markedly different effect in fact. Indeed, many have argued for the extension of rules applicable to physical evidence in case of digital evidence as well, by analogy and implication. However, as with other areas of law, one cannot simple extend rules operating in the physical realm to digital developments given the conceptual difference – which is demonstrated here by diametrically opposite factual consequence of a failure to obey on the existence of the information itself.

Moreover, in Selvi, the Court recognized Oghad, supra, as the controlling precedent and reiterated the two main premises for defining ‘testimonial compulsion’: “The first is that ordinarily it is the oral or written statements which convey the personal knowledge of a person in respect of relevant facts that amount to `personal testimony’ thereby coming within the prohibition contemplated by Article 20(3). In most cases, such `personal testimony’ can be readily distinguished from material evidence such as bodily substances and other physical objects. The second premise is that in some cases, oral or written statements can be relied upon but only for the purpose of identification or comparison with facts and materials that are already in the possession of the investigators.” Thus, even if the password in itself is not testimonial evidence, the act of disclosing it is testimonial as it reveals the personal knowledge of the suspect, which can be distinguished from independently existing material and physical objects of facts used for purposes of comparison and identification. Indeed, this distinction between testimonial facts and physical evidence is expressly recognized by the Supreme Court in Selvi, supra, para 137, as also the American Supreme Court in Armando Schmerber v. California, 384 US 757 (1966).

Further, Sec. 69(2) mandates the disclosure of information by an accused, which may include incriminatory evidence. In this regard, I believe that the testimonial evidence in question is two-fold: First, the information itself being revealed by the accused could have a “tendency of incriminating the accused” or disclose a “guilt character” (Oghad, supra, pg. 128). In Selvi, supra, the Court noted that the relevant consideration for extending the protection of Article 20(3) is whether the materials are likely to lead to incrimination by themselves or furnish a link in the chain of evidence which could lead to the same result. In this context, disclosure of the contents of a data resource by the accused could include incriminatory evidence. The fact that at the time of disclosure, the authorities are not aware of whether the information will be inculpatory or exculpatory is irrelevant (Selvi, para 130). This, indeed, is recognized – as Abhinav points out - in In re Boucher as well.

The operation of Article 20(3) to such forms of evidence is to be closely analyzed. Given the pervasive nature of digital information, I believe that the competing interests of self-incrimination and assistance of investigative authorities must be re-considered wholly, rather than blindly extending traditional analogies to these developments.

Raag Yadava studies law at the National Law School of India University, Bangalore

NLSIR: Call for Papers

(The following announcement is being posted on behalf of the National Law School of India Review)

The National Law School of India Review is now accepting submissions for its upcoming issue - Volume 25(1). The National Law School of India Review (NLSIR) is the flagship law journal of the National Law School of India University, Bangalore, India. The NLSIR is a bi-annual, student edited, peer-reviewed law journal providing incisive legal scholarship on issues that are at the forefront of contemporary legal discourse. Over the last 20 years, the NLSIR has regularly featured articles authored by judges of the Indian Supreme Court, Senior Counsel practicing at the Indian bar, and several renowned academics.


The most recent issue of the NLSIR, Vol. 23(2), featured contributions by Mr Aseem Chawla (former Partner, Amarchand & Mangaldas & Suresh A. Shroff & Co.),  Mr Sunil Jain  (Partner, Direct Tax, J Sagar Associates, Advocates & Solicitors) and Mr. Ravishankar Raghavan (Principal, Tax Group, Majumdar & Co., India) among several others. Moreover, in August 2009, NLSIR attained the unique distinction of being the only Indian student-run law journal to be cited by the Supreme Court of India, in Action Committee, Un-Aided Private Schools v. Director of Education. NLSIR has also recently been cited in Justice R. S. Bachawat's Law of Arbitration and Conciliation, a leading treatise on arbitration law in India.


Papers may be submitted as Long Articles (approximately 8000 words), Essays (approximately 5000 words) or Notes (approximately 2500 words). Submissions may be made to mail.nlsir@gmail.com under the subject heading 25(1) NLSIR - Submissions. Queries regarding submission may be sent to the same email address. The last date for submissions is November 15, 2012. For more information, please visit - www.nlsir.in.

Playing at Truck Festival next Friday

The Heavy Dexters (I play drumkit) are playing at Truck Festival next Friday 6 or 7pm. Some tiny stage behind the loos, I imagine. But still, it is Truck. Say hi of you're there and in the mood...

Truck festival.

Just told (wed evening) by Truck we're not now playing. Thanks guys @truckfestival.

PPS just offered 40 mins at 6pm

G4S deal

I notice that the £284 million new deal private security firm G4S struck with the (Tory) Government was, in effect, that they would get £20,000 per security employee, for each of the 13,700 security staff they promised to supply (but will fail to supply) for the Olympics. We all now know how little training and vetting those staff are getting.

But my question is - why was the deal ever made in the first place? G4S are paying those staff £6.50-£8.50 per hour (after promising £14 per hour, according to one potential employee.) Three weeks full-time work at 40 hrs per week will earn each security employee a maximum of about £1,000 each.

So, where does the other £19,000 go that we the British taxpayers are paying for each of them? How on earth could this have been thought a good deal for the British public?

I imagine G4S are generous Tory party donors but is there any other explanation?

India's Higher Judiciary: A Male Bastion

In many ways it is not important to discuss who was appointed as the new President of the UK Supreme Court today. It is certainly more important to discuss who wasn't. The fact that Baroness Hale was one of the three shortlisted candidates but yet was not chosen as President will bring back into sharp focus the massive gender gap in judicial appointments in the UK. Baroness Hale was the only woman ever to be appointed as a Law Lord to the House of Lords and remains the only woman judge on the UK Supreme Court in its short history. An outspoken supporter of gender diversity in the judiciary, Baroness Hale has emphasised the role of gender in her judgments and perhaps never more forcefully than in her dissent in Radmacher v. Granatino, where eight (male) judges chose to uphold the enforceability of pre-nuptial agreements. She has also spoken out against her colleagues being members of the gentlemen-only Garrick Club in London. 


No Semblance of Diversity in the Indian Higher Judiciary
Gender diversity in judicial appointments in India has not received any serious attention despite the abysmal gender ratio. While the gender gap in the Supreme Court is quite visible, the situation in the High Courts is just as shocking. Thanks to some timely help from Shreya Rastogi (V Year, NLU Delhi), I was able to put together the latest numbers on the gender ratio in the various High Courts. It is a simple compilation of the latest information available on the websites of various High Courts and the document can be accessed here. Only 7.9% of the total number of High Court judges are women and the lack of urgency in addressing this problem is perplexing. Or perhaps, before we address the problem, we need to take a more fundamental step and acknowledge the scale and intensity of the problem.  Gender diversity in judicial appointments must become one of the top priorities while discussing judicial reform. 


Why Gender Diversity in the Judiciary?
Will women judges adjudicate cases differently from male judges? I don't think a strong argument can be made that they certainly will on all situations. It also runs into the strong objection based on essentialising gender and that somehow there could be this one single way in which women would adjudicate cases. This expectation that women wil adjudicate "differently" is an unfair burden and that cannot be strongest argument for demanding gender diversity in judicial appointments.

I would agree with the argument that Anne Philips makes in the context of gender diversity in legislatures in her book Politics of Presence. The justification for gender diversity in the judiciary must be rooted in concerns of legitimacy of the institution and combating what is clearly a case of structural discrimination. The push for gender diversity in the judiciary should not be based on the expectation of "feminist" judgments.

The argument might well be based on the positive impact of having women judges from a process perspective. The environment it would create for women bringing cases to the courts and for women lawyers appearing in court is critical and it would make an important contribution to establishing courts as inclusive spaces. Achieving gender diversity in judicial appointments is not just a question of tweaking the appointment procedure. It is very much about reforming the manner in which gender plays out in the Bar in terms of employment opportunities, the work culture, creation of networks of privilege, conditions at the workplace etc. The Bar must reflect on the role it has played in creating the gender deficit in the Indian judiciary, acknowledge that its structures and processes do not facilitate the bridging of the gender gap and take steps to ensure that success at the Bar is possible just as much for women as it is for men.

I am aware of the argument that we could have this discussion about other factors of diversity as well and that brings with its own complexities. However, that should not prevent us from engaging with such a stark case of exclusion, especially in an institution that is meant to safeguard constitutional values.

The Constitution Committee appointed by the House of Lords to look into 'Judicial Appointments' submitted its report in March 2012. The Committee addressed the issue of diversity in judicial appointments in Chapter Three.

Encryption and Self-Incrimination

Encryption of data is a means to secure and sensitive private data and prevent third parties from obtaining that information. It is a part of our everyday life, and we come across encryption each time we conduct an online transaction through our credit/debit cards, or install a new software on our computer by inserting the product key. The easy availability of such software however makes it easy to be used for a number of nefarious purposes, with "criminals including drug traffickers, pedophiles and terrorists [turning] to encryption to conceal their activities". To drive home the point of the security issue, you can see a slightly old but very compelling list of incidents involving encryption here. 
This reality has prompted States to enact key disclosure laws so that law enforcement is not crippled when faced with encrypted data, thus providing for compelling individuals to produce encryption keys. These laws pose searching questions for legal regimes which provide a right against self-incrimination, as witnessed in the U.K. and U.S.A. India also provides for compelled disclosure through s. 69 of the IT Act, 2000, but it has somehow remained under the radar for more than a decade in spite of the Constitution providing a fundamental right against self-incrimination through Article 20(3). Through this comment I seek to explore this aspect of s.69, reminding us of the challenges that the right against self-incrimination creates and faces in an era of intense security and surveillance.

Supreme Court on Self-Incrimination

It is essential to provide a background sketch of the law on self-incrimination in India today, as that will shape any interpretation which the Court adopts. The Supreme Court in the early years of independence gave many significant rulings on interpretations of Part III Articles, and one such ruling was M.P. Sharma v. Satish Chandra where the scope and extent of Art 20(3) was clarified. Speaking for a unanimous bench, Jagannadhadas, J. famously held that, “[t]o be a witness is nothing more than to furnish evidence … indeed, every positive volitional act which furnishes evidence is testimony”, making it clear that oral and documentary evidence could come within the confines of Art 20(3).

This catch-all phrase did not hold the field for long though and less than a decade later, eleven judges in of that Court in State of Bombay v. Kathi Kalu Oghad reconsidered the matter. By an 8-3 majority, the concept of “personal knowledge” as the key constituent of evidence for Art 20(3) was introduced and continues to be the test today. The scope of 20(3) was significantly restricted, and evidence such as fingerprints and handwriting exemplars were excluded from its ambit since they did not have a communicative, personal aspect, and were independent of the will of the person as such. An equal if not more important development ignored by textbooks, is the shift in the approach of the Court; from focusing on the positive volitional acts of testimony, the focus was now the testimony itself. It has remained so since.

There exist few areas of self-incrimination law where Kathi Kalu Oghad has not penetrated, and one such area is specifically relevant to this discussion. Would the power to compel production of documents or other issue a summons under s. 91 of the Code of Criminal Procedure (“Cr.P.C”) (s. 94, Cr.P.C. 1878) apply to an accused person, given the protections of Art 20(3)? A Constitution Bench answered this question in Shyamlal Mohanlal v. State of Gujarat and held that this power could not be exercised vis-a-vis accused persons, as it would violate Art 20(3). Reservations were expressed subsequently, but the decision remains good law on the specific issue outlined therein.

Why do I refer to Shyamlal as a decision of particular importance? Both s. 69 of the IT Act and s. 91 of the Cr.P.C. depend on compelling the individual to produce the necessary information. Taking the decision in Shyamlal to its logical conclusion, one would find it difficult to argue that compelling an accused to produce encryption keys or assist in decryption would not offend Art 20(3). If the Court would have been more receptive of the testimonial-physical distinction brought in by Kathi Kalu Oghad, then such an outright restriction would certainly not be the outcome.

Evidentiary Nature of Encryption Keys

Shyamlal does present a stumbling block, but not an insurmountable one. Given the almost universal acceptance of the Kathi Kalu Oghad approach and dictum, combined with a growing tendency to ease the burden on the  the prosecution in establishing its case, a reconsideration of Shyamlal today I believe would almost certainly result in a different outcome. Rather than a blanket exclusion, the matter would possibly turn on the nature and characterisation of evidence involved - only production of evidence independent of the accused's will could be compelled under s. 91. The same thus becomes crucial in context of encryption keys. English and American Courts have grappled with this specific issue already and provide valuable insight.

The English Experience

State access to keys was provided in s. 49 of the Regulation of Investigatory Powers Act 2000 (“RIPA”) which like the IT Act only allows for decryption directions when necessary. Arguments were made that the section offends Art 6 of the ECHR, but were not given much credence at the time. These claims formed the principal arguments in R v. S and the reasoning adopted by the Court of Appeal is of particular interest. Briefly, the Police issued notices to both defendants compelling them to provide the encryption keys to the hard drives without which the data was rendered inaccessible. The defendants toed the Art 6 line. Noting the observations of the European Court in Saunders, the question became whether the key itself would be evidence dependent of the will of the accused – or testimonial evidence in Indian parlance. The Court held it did not, employing the oft-used analogy of the locked drawer: just as the key to that locked drawer exists independent of the will of the accused, so does the encryption key. The act of giving the key itself was not incriminating, but comparable to giving blood or urine samples.

The American Experience

The American judiciary first gave the notable judgment on this issue with the District Court of Vermont deciding In Re Boucher, subsequently appealed by the State. The Police when navigating through Boucher's laptop with his consent found files containing child pornography, but could not access this material later as the relevant files were protected by encryption. This required a password which only Boucher knew and for which he was subpoenaed. While the District Court held for Boucher, the Appellate Court reversed the decision allowing the subpoena. Importantly, both courts understood encryption keys analogous to a combination for a safe rather than a key to a drawer, holding it therefore to be evidence revealing the contents of Boucher’s mind and thus not independent of his will. The 11th Circuit Court of Appeals in February 2012 decided John Doe, which was very similar on facts. The Government argued the locked drawer analogy, which was rejected again. For the Court, producing the encryption key would be testimony of the accused’s “knowledge of the existence and location of potentially incriminating files; of his possession, control and access to the encrypted portions of the drives; and his ability to decrypt the files.”

Which Road to Take?

I believe, assuming the Court agrees Art 20(3) is engaged, that the American approach is theoretically and pragmatically more sound as against the English one. Analogising encryption keys to locked drawer situations would take away the fundamental nature of their intangibility, something for which the English Court has been criticised. Such evidence relies on the contents of the accused's mind and compulsion to produce it would amount to giving “personal knowledge” of the facts. Furthermore, in fact situations such as John Doe and R v. S (as per the record) the act of producing the key would not be “neutral”, and have communicative aspects as highlighted by the American courts.

Recognition of the engagement of the right against self-incrimination is followed by the next important step of balancing the claims involved. Here again American jurisprudence proves handy. In both Boucher and John Doe, the case actually turned on what is called the "foregone conclusion” doctrine. Simply put, compelling an accused to produce evidence would not engage self-incrimination rights if the existence and location of that evidence is a “foregone conclusion” by virtue of it being known to the investigating agency through other independent sources. Thus such testimony “adds little or nothing to the sum total of the Government’s information.” Indian jurisprudence has primarily focused on reliability of evidence as a rationale behind Art 20(3), which is supplemented by the concept of fairness underlying criminal trials. It is argued that the doctrine fits neatly in this framework. Not only does it augment reliability of evidence for which the sole source was otherwise the accused himself, but it also makes compulsion on the accused seem less abhorrent since he is not providing evidence to which the authorities otherwise had no access at all. It would be a mistake to criticise this position merely for it takes assistance of the accused: a high burden of proof in criminal law is not an exclusive burden upon the State forbidding assistance from the accused and mustn't be confused as such.

Thus I believe this approach offers a fitter alternative to the current position espoused by Shyamlal. It does indeed involve judicial appreciation that can turn controversial, but provides a helpful starting point nonetheless. 

Post by Abhinav Sekhri, who studies law at the National Law School of India University, Bangalore.

A Dangerous Precedent for the ‘Right to Information’ in India

In a grave setback for the ‘Right to Information’ movement, the Delhi High Court in the case of Registrar of Companies v. Dharmendra Kumar has ruled that the Right to Information Act, 2005 will not apply to those documents which can be accessed under existing legislation and rules.

In this particular case the documents which were requested by the RTI applicant could also be accessed by the applicant under Section 610 of the Companies Act. There are several Indian laws which have provisions similar to Section 610 i.e. a certain class of records held by the RoC are required to be open to general public inspection. The difference however between such laws and the RTI Act lies in the fact that the RTI Act guarantees access within thirty days and at a reasonable cost. As per the present Government Rules the cost of a RTI application is at just Rs. 10, while the cost of photocopying the required information or requesting for certified copies is at a mere Rs. 2 per page. Contrast this to some of the sky-high figures charged by the Central Govt. organizations like the Patent Office which charges Rs. 4000 for a certified copy of a document regardless of whether the document is 1 page or 10 pages! Most importantly the RTI Act provides the citizen with the threat of sanction against the public servant who delays providing information or provides wrong information. It is a combination of the above factors which have contributed to the success of the RTI Act in India.

The present judgment of the Delhi High Court deals with different arguments pertaining to an interpretation of Section 2(j) and Section 3 of the RTI Act. However for the purposes of this article, I would like to focus on the main issue of whether Section 22 of the RTI Act, 2005 can over-ride Section 610 of the Companies Act i.e. can a citizen demand information under the RTI Act despite the same information being accessible under a separate legislation.

Section 22 of the RTI Act reads as follows: 

“22. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

A reasonable interpretation of the above provision would conclude that the RTI Act would have effect regardless of it being inconsistent with anything contained in any other law in force. The RTI Act could be held to be consistent with the provisions of any other law only in those circumstances where the other law provided for similar if not identical rights to the citizen as provided under the RTI Act. Instead of analysing the similarities or dissimilarities between the RTI Act and Section 610 of the Companies Act, the Delhi High Court comes to the following bland conclusion:

“Firstly, I may notice that I do not find anything inconsistent between the scheme provided under Section 610 of the Companies Act and the provisions of the RTI Act. Merely because a different charge is collected for providing information under Section 610 of the Companies Act than that prescribed as the fee for providing information under the RTI Act does not lead to an inconsistency in the provisions of these two enactments.”

The above analysis completely misses the strong rights provided under the RTI Act, namely the 30 days limit and the ‘rights-based’ grievance redressal mechanism.

The judgment then goes on to state:

“Even otherwise, the provisions of the RTI Act would not override the provision contained in Section 610 of the Companies Act. Section 610 of the Companies Act is an earlier piece of legislation.”…………. “Therefore, the later general law cannot be read or understood to have abrogated the earlier special law.”

The above principle which is best captured by the Latin maxim of leges posteriors priores conterarias abrogant has been incorrectly applied by the Delhi High Court because this principle of statutory interpretation applies only when two conflicting laws make no reference to each other and where both laws have failed to provide any guidance on how to resolve the conflict. Section 22 of the RTI Act however is crystal clear that it will over-rule any conflicting legislation.

The most regrettable portion of the judgment however is where the Delhi High Court passes strictures against the Information Commissioner Shailesh Gandhi by naming him. The Supreme Court has time and again warned High Courts to be very careful while passing strictures against lower judicial officials.  In breach of the Supreme Court’s instructions the Delhi High Court states “In the present case, the Central Information Commissioner Mr.Shailesh Gandhi has also demonstrated complete lack of judicial discipline while rendering the impugned decisions.”  & “The consequence of the improper conduct of Sh. Shailesh Gandhi, Central Information Commissioner, is that there are now two sets of conflicting orders- taking diametrically opposite views, on the issue aforesaid.” 

The only fault of Shailesh Gandhi was that he disagreed with earlier ‘single commissioner’ orders of the CIC and passed a contrary order without referring the contentious issue to a larger bench of the CIC. This is not the first such incident before the CIC. Given that he’s a person without legal qualifications (something which the RTI regrettably allows) the Delhi HC could have been gracious enough to remand the matter to the CIC for a full bench hearing. Instead the Delhi High Court sat on the matter for 3 years before passing strictures against an Information Commissioner who disposed the appeal before him within a period of 1 month.

In August, the Delhi High Court is scheduled to hear yet another appeal against the order of Shailesh Gandhi in a similar case involving the Central Public Information Officer (CPIO) of the Supreme Court Registry who has been denying RTIs pertaining to judicial records on the grounds that the Supreme Court Rules already provide for a similar mechanism to access information. In that case, unlike the present case, Shailesh Gandhi passed a very detailed order. It remains to be seen whether it stands the test of an appeal before the Delhi High Court.

 Guest post by Prashant Reddy who expresses his own views on this subject.       

Campaign for commutation

The stage is set for a major campaign in favour of commutation of death sentences awarded to 12 convicts, with Justice Prabha Sridevan's excellent piece in The Hindu today highlighting the case of the 13 convicts, who suffered capital punishment because of erroneous Supreme Court judgments.

Of the 13, President Pratibha Patil has already commuted the sentence of one convict, Bantu in June this year. She is yet to decide the mercy petition of another convict, Saibanna, although she has received the advice from the Ministry of Home Affairs. With her term as President ending on July 25, it is likely that she may defer from taking any more decision on the pending mercy petitions, leaving them to her successor to decide.

The mercy petitions of the remaining 11 are either pending with the State Governors, or have been rejected by them, and they are likely to send their fresh mercy petitions to the President in due course.

Although Justice Prabha Sridevan has relied on the Santosh Bariyar judgment of the Supreme Court, there are several judgments post-Bariar which are still tainted, despite not being declared as per incuriam by a subsequent Bench of the Supreme Court. If the 12 convicts identified in the Bariar judgment get relief from the President, so must others who have been wrongly sentenced to death by the Supreme Court subsequent to Bariar. Therefore, it is for the Supreme Court itself to take the corrective steps, rather than leave it to the Executive to decide which are the post-Bariar cases which deviated from the Bachan Singh line, in order to exercise the President's power to commute under Article 72 of the Constitution.

The International Law 'scene'

by Christopher Gevers



For the next month I will be a Visiting Fellow at the Oxford Institute for Ethics, Law and Armed Conflict. Many thanks to Prof. Dapo Akande - who is co-Director of ELAC - and the Institute's staff for facilitating my visit. I would like to make the most of my time in Oxford/the UK, so if readers would please email me (gevers[at]ukzn.ac.za) if you know of any interesting international law/human rights related events taking place in Oxford, or London and surrounds, in the next month I'd appreciate it greatly.

Kiobel Amicus Curiae Brief

Max and I - along with Anton
Katz - recently submitted an Amicus Curiae brief (available here) to
the US Supreme Court in respect of Kiobel v. Royal Dutch Petroleum Co.
As most of you will know, Kiobel is a landmark case concerning the
application of the U.S. Alien Tort Statute, 28 U.S.C. § 1350 (ATS) to human
rights violations committed outside the US. Beyond its immediate significance,
the decision of the Court will also have a considerable impact on the ongoing
Apartheid Reparations case in the Second Circuit. The brief was written at the request of the
petitioners in response to the following question posed by the Court: “Whether and under what circumstances the
Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of
action for violations of the law of nations occurring within the territory of a
sovereign other than the United States.” 

More specifically, we were asked to consider the
extent to which South African courts would entertain delictual suits for
events taking place within the territory of foreign states and whether the violations of the nature covered
by the ATS would be considered wrongful, and therefore actionable, as delicts
under South African law.

In essence our brief argued that under South
African law, the equivalent of the U.S. doctrine of transitory torts is embraced
as a matter of common law.

First, although incidences of doing so are
rare, South African courts can as a matter of jurisdiction consider torts—or
delicts—committed outside the territory of the Republic. Although the statutory
jurisdiction of South African courts is limited to 'causes of action' that take
place within our territory (see section 19(a) of the Supreme
Court Act 59 of 1959), under the common law there is precedent
for the exercise of 'extraterritorial civil jurisdiction' (see Hill v Wallace [1829], Menzies’
Reports (1828-49), Vol. I, 347; Mackay v Phillip [1830], Menzies’ Reports (1828-49),
Vol. I, 355; Rogaly v General Imports (Pty) Ltd 1948 (1) SA 1216 (C).) Notably, while our
common law is Roman-Dutch in origin, in the recent case of [1]Gallo Africa Ltd and Others V Sting Music (Pty) Ltd
and Others 2010 (6) SA 329 (SCA) the Supreme Court of Appeal in substance accepted
the English common law's 'Mocambique rule' in respect of the exercise of
jurisdiction over immovables. The counterpoint of that rule is the doctrine of
'transitory torts', which forms the basis of the ATS.

Second, as a matter of substantive law, the
acts governed by the ATS —violations of the law of nations— would be actionable
under the South African law of delict as such conduct would be considered
wrongful. This characterization could take place in two ways: (i) Through the direct application of the relevant
customary international law norm in terms of section 232 of the South African
Constitution which provides that “[c]ustomary international law is law in the
Republic unless it is inconsistent with the Constitution or an Act of
Parliament”. (ii) Indirectly,
through the classification more generally of such conduct as consequently
wrongful (i.e. against the legal convictions of the community). Here, the
criminalization of certain international human rights violations domestically,
for example under the ICC Act 27 of
2002, would be the lighthouse for a South African court considering the
wrongfulness of such conduct for the purposes of civil liability.

Moving beyond Kiobel, if
it is the case that South African law (i) allows our courts to exercise
extraterritorial civil jurisdiction, and (ii) recognizes certain breaches of
customary international law as wrongful for the purposes of civil liability, there is nothing stopping individuals from bringing claims
for extraterritorial human rights violations (such as those alleged in Kiobel) before South African courts. An
interesting prospect indeed…

Report: Implications of the AU Decision to Give the African Court Jurisdiction Over International Crimes

Max du Plessis has written a recent paper (ISS Paper 235) on
'Implications of the AU Decision to Give the African Court Jurisdiction
Over International Crimes'.  It is available here.

The
paper considers the decision by the African Union  (AU) to expand the
jurisdiction of the African Court of  Justice and Human Rights to act as
an international criminal court with jurisdiction over the
international crimes of genocide, war crimes and crimes against
humanity, as well as several transnational crimes. At an AU meeting from
14–15 May 2012 a draft protocol to effect that expansion was approved
and has been recommended to the AU Assembly for adoption.

The
short time frame which the AU has provided for the  complex task of
drafting the protocol occurs against the backdrop of the fractured
relationship between the AU and  the International Criminal Court (ICC).
The process of expanding the African Court’s jurisdiction is fraught
with  complexities and has implications on an international, regional
and domestic level. All these implications need to be considered,
particularly the impact on domestic laws and obligations, and the
relationship between African states parties to the Rome Statute of the
ICC, the ICC itself and the African Court.

Remembering Justice Khanna

This month will mark the birth centenary of Justice Hans Raj Khanna, one of the most important judges to have served on the Supreme Court of India. In a short piece in the current issue of Caravan, I reflect upon Khanna's legacy and judicial philosophy.

Africa and Universal Jurisdiction

by Christopher Gevers



Last week I had the privilege of
participating in the 10^th East
African Magistrates and Judges Association Conference in Kigali, Rwanda.
The theme of this year’s conference was ‘Universal Jurisdiction’, and myself
and Professor Tiya Maluwa
of Penn State were invited to present papers on this topic.

Let me begin by saying what an absolute
pleasure it was to interact with judges and magistrates from the region on this
and other issues of international justice, both formally and informally. The
exchanges have been robust and challenging at times, but always congenial.

As far as my presentation was concerned,
I was given the difficult task of following Prof Maluwa’s excellent paper on ‘Universal
Jurisdiction and Africa: An Overview and Practical Aspects’. My brief was to
confine my dircussions to reflections on the ICC and ICTR’s influence on
universal jurisdiction in Africa. I must admit that it was not immediately
clear to me why the organizers had chosen to focus on these institutions,
neither of which exercise ‘universal jurisdiction’. I realize now that part of
my confusion lay in the fact that I did not view the ICC’s jurisdiction under a
Security Council referral (article 13(b), Rome Statute) as ‘universal
jurisdiction’, whereas the conference organizers (and many participants) did.

In the end, I chose to focus my
contribution on the indirect effects
of the ICC on universal jurisdiction. First and foremost, there are the
implementing Acts adopted by African ICC states parties to give effect to the
principle of complementarity by providing for the domestic prosecution of
international crimes. Although few African states have adopted this legislation,
(almost) all of those states that have done so elected to include a universal
jurisdiction provision in their domestic prosecution regimes. (See, for
example, section 8(c), Kenya’s International
Crimes Act 2008; section 18(d) of Uganda’s International Criminal Court Act 2010; section 4(3)(c) of South
Africa’s Implementation of the Rome
Statute of the International Criminal Court Act 27 of 2002; section 4(3)(c)
of Mauritius’ International Criminal
Court Act 2011; article 669 of the Code of Criminal Procedure of Senegal.)

Notably, most of these universal jurisdiction
provisions contain a presence requirement for the exercise of such
jurisdiction. This commonality makes the ‘Zimbabwe Torture Docket decision’ (SALC v NDPP) – which found that this
presence requirement did not apply to the investigatory stage of proceedings
(at the very least) – potentially far-reaching as the courts of other African
states (particularly those with a common legal pedigree) might chose to follow
this interpretation of their own presence requirement.

In addition to this, I discussed another
less auspicious imprint made by the ICC on universal jurisdiction. That is, the
‘collateral damage’ to universal jurisdiction caused by the deterioration of
the relationship between the ICC and African states over the past few years. I
briefly considered the concerns African states have voiced – both individually
and collectively – regarding the Court’s work, which I systematized into structural, operational, diplomatic and philosophical concerns. Regardless of
whether one accepts the merits of these concerns, they clearly have affected
the principle of universal jurisdiction negatively as it has been painted with
the same neo-colonial/imperial brush that has been used to call into question
the international criminal justice project generally.

As far as the ICTR is concerned, my
contribution centered on the missed opportunity for African states to put their
commitment to international justice (and universal jurisdiction) into practice
by trying genocidaires that fled
Rwanda themselves. To date no African state outside of Rwanda has done so
(while Belgium, Canada, The Netherlands, Switzerland and Finland have). In
addition, the failure of African states to take advantage of the ICTR’s 11bis procedure by accepting the transfer
of indictees from the ICTR in order for them to be tried domestically under the
principle of universal jurisdiction represents an even greater missed
opportunity to ‘test the waters’ with a form of controlled universal jurisdiction. To explain, the difficulty with
the ‘uncontrolled’ exercise of universal jurisdiction by states acting on their
own accord is that it will lead, in the words President Kagame, to “the law of the
jungle at the international level”. In practical terms these difficulties include (i) the absence of a
universally accepted standard of proof for initiating prosecutions, and an
non-partisan arbiter of the evidence in this regard (ii) the problem of
competing jurisdictional claims amongst states and no clear means of ‘ranking’
such claims (iii) fair trial concerns (iv) the possibility of universal
jurisdiction being used as a shield through sham prosecutions.

The exercise of universal jurisdiction
under the 11bis procedure addresses
most if not all of these difficulties. First, the individuals transferred have
already been indicted by the ICTR. Second, the Court itself will determine the
most appropriate forum, with due regard being given to (i) where the crimes
were committed and (ii) where the perpetrator is located under article 11bis. Third, fair trial guarantees are a
condition for the transfer under 11bis.
Finally, the ICTR maintains the prerogative of revoking the transfer on the
basis of the state concerned failing to meet one or more of these concerns.

Of course, ‘supervised’ universal
jurisdiction of this nature brings its own challenges, and the ICTR in
particular has not covered itself in glory in respect of its application of the
11bis rule in respect of Rwanda. (A
result, perhaps, of the fact that Rwanda has had to run the 11bis gauntlet alone without the support
of other African states) Nevertheless, the 11bis procedure will soon have come and gone without other African
states having taken the opportunity to leave their imprint on the process. 

Finally, I discussed the ‘nub’ of
Africa’s antipathy to the principle of universal jurisdiction: the perceived
abuse of universal jurisdiction by European states in respect of African
personalities.

While the claim of a general
anti-African bias when it comes to European assertions of universal jurisdiction
is not borne out by facts (See the AU–EU
Technical Ad hoc Expert Group Report on the Principle of Universal Jurisdiction
(2009)), there is merit to the claim that certain European judges have been
‘injudicious’ in issuing arrest warrants for African personalities. However,
many of the cases cited as examples of abuse of this principle are not
‘universal jurisdiction’ cases proper but
rather are based on assertions of passive personality jurisdiction. (In this
regard see and Charles Jalloh’s paper ‘Universal Jurisdiction, Universal
Prescription? A Preliminary Assessment Of The African Union Perspective On
Universal Jurisdiction’, 21 Criminal Law
Forum (2010), available here).

What is more, these complaints are as
much, if not more, about the failure to respect the procedural immunity of
senior state functionaries from the courts of foreign states as they are about
the particular ground of jurisdiction.

However, amidst these technicalities
sight must not be lost of the historical and political context surrounding
these indictments, particularly those involving unrepentant former colonial
powers. As Jalloh notes:

“To the bulk of human rights activists
and commentators, especially from Western states, [Belgium’s] universal
jurisdiction law, especially its 1993 variant, is an example of noble and
disinterested global prosecutions at their best. However, it is hard to imagine
many Congolese or Africans with a sense of history accepting that, barely a
century after King Leopold allegedly orchestrated some of the worst crimes that
in modern parlance would be called crimes against humanity, Belgium would
transform itself into a handmaiden of justice in respect of prosecution of the
crimes being perpetrated in the modern Congo—a former colony. This is
particular so considering its alleged continual attempts to meddle in and
control the country’s domestic affairs.”

Merits aside, in response to these
developments the African Union has taken a numbers of decisions on the
principle of universal jurisdiction that have led to the development of a AU Model Law on Universal Jurisdiction.
Early this month Ministers of Justice and Attorneys General of the African
Union met in Addis Ababa to discuss inter
alia the Model Law; which is designed to allow African states “to overcome
the constraints in exercising the principle of universal jurisdiction”.  I’ve not yet got my hands on a copy but it
will be a fascinating read no doubt.

In light of the above I concluded that
Africa is at a crossroads when it comes to the principle of universal
jurisdiction. Up until now African states have assiduously avoided putting
their commitment to universal jurisdiction into practice on the basis of legal
deficiencies and resource-constraints. The former gap has been closed in some
states through the adoption of Rome Statute implementing legislation and may
soon be closed altogether by the adoption of the AU Model Law. While resource
constraints remain, these may well be more perceived than real – particularly when
the alternative means of ensuring justice are considered.

Africa must now decide whether it is
prepared to make universal jurisdiction a reality. Should African states choose
to implement universal jurisdiction, they will have to do so in the knowledge
that it is (and will remain) a ‘double-edged sword’. However, the first step to
preventing the abuse of universal jurisdiction is for all African states to
ensure that they take seriously the commitment to combat impunity and create
the necessary domestic framework for the prosecution of international crimes.
In so doing states will contribute to the further development of customary
international law vis-à-vis universal jurisdiction and, in the process, address
some of their concerns regarding the principle operation. The AU Model Law will
go a long way in this regard, should African states elect to adopt it en masse.

Of course, it is up to African states to
take the alternate route and move away from universal jurisdiction as a means
of ensuring international criminal justice. With this in mind, I ended my
contribution with a few brief (but pointed) remarks on what has recently
emerged as a “third way” in respect of international criminal justice, that
avoids both the vagaries of the international mechanisms (such as the ICC) and
well as the political cost of domestic prosecutions under the principle of
universal jurisdiction: regional (international) criminal justice mechanisms. I
made by own views on the recent proposed Criminal Chamber for the African Court
on Justice and Human Rights and the newest regional initiative, the East
African Community’s proposed criminal chamber, abundantly clear:

“First, let me begin by saying that to
the extent that these regional mechanisms are being empowered with criminal
competence in order to displace the role of the ICC in respect of cases
currently before the Court they are, with respect, a fool’s errand. Such
mechanisms will not satisfy the Court’s complementarity requirements, nor
relieve states of their international obligations to cooperate with the Court
in respect of these cases. To the extent that these initiatives are designed to
regionalize international criminal justice in respect of future cases, there
are both principled and pragmatic reasons to proceed with caution. From a
pragmatic perspective, the cost implications alone of this endeavor are
problematic. What is more, from a legal perspective there are challenges in
respect of regionalizing international criminal
law generally, as well as expanding the jurisdiction of the African Court of
Justice and Human Rights in particular. These problems have led Max du Plessis to conclude,
in respect of the African Court that ‘it is inconceivable that the draft
Protocol, with the various problems identified ..., could be meaningfully
implemented’.“

With that I ended my presentation with
the expectation of a barrage of questions and comments, particularly from the
EAC delegates in the room. In this respect I was very grateful that Prof Maluwa
agreed to come up and field questions from the audience with me. In the end
there were a number of thoughtful comments and questions on the other aspects
of universal jurisdiction, but few specifically on the relationship between the
proposed regional mechanisms and complementarity. One interesting point that was raised by a senior Judge was if (and
how) the Rome Statute might be amended to accommodate these regional mechanisms
within the notion of complementarity. My response was that a renegotiation of
the Rome Statute was unlikely, but not impossible. Should it be done, the
obvious route would be to amend article 17 to refer to ‘a State or regional criminal mechanism’.
Alternatively, article 16 might be amended to allow for a deferral specifically
for these purposes, but this even more unlikely.  

However, the upshot of the questions and
comments, as well as my informal discussions, is that the regional criminal
mechanisms are going ahead and the question is really how (and not if) we
should find a place for them within the international criminal justice matrix.