Archive for May, 2012
May 30th, 2012 by Shannon Torrens
Charles Taylor (Photo: Reuters)
Today, Charles Taylor, the convicted former President of Liberia was sentenced to 50 years imprisonment at the Special Court for Sierra Leone (SCSL) in The Hague. The Trial Chamber, comprised of Justice Richard Lussick (Presiding), Justice Teresa Doherty, and Justice Sebutinde, unanimously imposed the single sentence of 50 years for all 11 counts of the crimes for which Mr. Taylor was convicted of on 26 April of this year. These convictions were for acts of terrorism, murder, rape, sexual slavery, outrages upon personal dignity, cruel treatment, other inhumane acts, conscripting or enlisting of child soldiers, enslavement and pillage.
Justice Lussick said the Trial Chamber found that Mr. Taylor, as the President of Liberia, abused his position and power to aid and abet the commission of crimes in Sierra Leone during the civil war in the country. He further abused his position as a member of the ECOWAS Committee of Five (later Six) which had been an international effort aimed to bring peace to Sierra Leone, rendering Mr. Taylor’s misuse of this process an aggravating factor of great weight when the Trial Chamber considered the sentence. The Trial Chamber further cited as aggravating factors that were considered in sentencing the extra-territoriality of Mr. Taylor’s crimes, particularly his exploitation of the Sierra Leone conflict for financial gain. As a mitigating factor, the Trial Chamber took into consideration a report of Mr. Taylor’s good conduct during his time in detention, but rejected other mitigating factors put forth by the defence.
It had earlier been thought that as Mr. Taylor was convicted of aiding and abetting, rather than traditionally more serious forms of liability such as Joint Criminal Enterprise (JCE), his sentence would be significantly lower than those convicted at an international level of the latter. However the Trial Chamber held that while ”aiding and abetting as a mode of liability generally warrants a lesser sentence than that imposed for more direct forms of participation…” Mr. Taylor’s leadership role “puts him in a class of his own.” A lesser sentence would therefore not be given in this instance, as the Trial Chamber emphasised that it wanted to highlight the gravity of the crimes carried out by Mr. Taylor as well as his “betrayal of public trust.” Justice Lussick said. “In the Trial Chamber’s view, this betrayal outweighs the distinctions that might otherwise pertain to the modes of liability discussed above.” If the Defence and/or Prosecution wish to appeal, they must submit a written notice to the Appeals Chamber within 14 days of today’s sentencing judgement, outlining the grounds of their appeal.
The Prosecution’s Press Release regarding the sentencing judgment can be found here, which states the Prosecution position that “[th]e sentence imposed today does not replace amputated limbs, does not bring back to life those who were murdered, does not heal the wounds of those who were victims of sexual violence, and does not remove the permanent emotional, psychological and physical scars of those enslaved or recruited as child soldiers. But this sentence does bring some measure of justice for these terrible wrongs, and reflects the condemnation of all members of the global community for the suffering inflicted on innocent men, women and children.” The Defence has yet to deliver a press release on today’s sentence. Following his appeal, Mr. Taylor will most likely serve his sentence in the United Kingdom.
May 30th, 2012 by Shannon Torrens
Charles Taylor (Photo: Reuters)
The Trial Chamber sentencing Judgment in the case of Charles Taylor at the Special Court for Sierra Leone (SCSL) will be handed down at 11am in The Hague/9am GMT. The proceedings can be viewed online here or here. The trial of Charles Taylor, the ex President of Liberia is the final case before the SCSL. Mr. Taylor was indicted in 2003 for war crimes, crimes against humanity and other serious violations of international humanitarian law. On 26 April Mr. Taylor was convicted on all 11 counts of his 11 count indictment. The full Taylor Judgment can now be accessed here.
The Charles Taylor case is significant for international criminal law as Mr. Taylor is the first Head of State to be indicted, tried and convicted by an international court or tribunal for violations of international law since the post World War II Nuremberg Trials. Trial Chamber II of the SCSL unanimously found Mr. Taylor guilty beyond reasonable doubt of aiding and abetting, pursuant to article 6.1 of the SCSL Statute, the Revolutionary United Front (RUF) and the Armed Forces Revolutionary Council (AFRC) rebels in the commission of war crimes and crimes against humanity in Liberia’s neighbouring Sierra Leone during the indictment period of the SCSL and for planning the commission of the crimes in attacks on Kono and Makeni in December 1998, and in the invasion of and retreat from Freetown between December 1998 and February 1999.
In an earlier piece on this blog, iLawyer Wayne Jordash commented on delayed justice at the SCSL and in doing so highlighted the length of time it took the SCSL Trial Chamber to deliberate and deliver a judgment in the Taylor case, in addition to the poignant “dissent” of Justice Sow over his unease at the SCSL Trial Chamber deliberations, that he believed never eventuated. Mr. Jordash further noted the particularly startling attempt by the SCSL to remove all trace of Justice Sow’s intervention from the court records. Similarly, Geoffrey Robertson Q.C., published an opinion piece in which he also lamented the time it has taken the SCSL Trial Chamber to deliver its judgment on Charles Taylor, pointing out that the judgment was scheduled “thirteen months, no less, since the final speeches finished.” Mr. Robertson said, “[w]hile it is not necessary to follow the lead of the German judges who convicted one of the last Nazis—John Demjanjuk—only two days after the end of his two-year trial, it remains true that justice delayed is justice denied, especially in a court whose first president promised that “our justice, whilst it may not be exquisite, will never be rough.”
In terms of appealing the Trial Judgment, Mr. Taylor had fourteen days following the delivery of the full Judgment and sentence to file a written notice of appeal with the Registrar of the SCSL setting forth the relevant grounds. Similarly, the Prosecution has fourteen days to file its own written notice of appeal. The Appellant’s full written submissions must then be served on the opposing party within twenty one days of the notice of appeal. Responses are then filed within fourteen days and replies within a further five days. The Appeals Chamber of the SCSL consisting of five judges will then hear the oral appeals and the subsequent judgment it renders will be final. If Mr. Taylor is found not-guilty on Appeal, he will prima facie be free to leave the court and return to Liberia.
The Special Court for Sierra Leone (SCSL) was established in order to prosecute those most responsible for crimes committed during the Sierra Leone Civil War, with the Court’s mandate commencing on 30 November 1996. During this conflict, over 50,000 people died in the country, millions were displaced and innumerable maimed. Since its inception, the SCSL has convicted eight individuals for their role in the conflict: Sesay, Kallon and Gbao as part of the Revolutionary United Front (RUF case), Kondewa and Fofana as part of the Civil Defence Forces (CDF) case and Brima, Kamara and Kanu as part of the Armed Forces Revolutionary Council (AFRC) case. All eight convicted individuals are now imprisoned in Rwanda.
May 26th, 2012 by Anna Bonini
A recently released report compiled for Avocats Sans Frontières Canada analyzes the principle of complementarity in the Rome Statute, with particular regard to the Colombian situation.
For over six years, the Office of the Prosecutor of the ICC has been monitoring the situation in Colombia and conducting preliminary examination of the possibility that crimes against humanity and war crimes were committed there in the last decade. On 13 December 2011, the OTP published a Report on Preliminary Examination Activities. This report notes that there is a reasonable basis to believe that crimes against humanity and possibly war crimes were in fact committed in Colombian territory. However, in relation to the principle of complementarity, the report states that the OTP does not have a sufficient basis to conclude that existing criminal proceedings before Colombian courts against alleged perpetrators of those crimes are not genuine or carried out in good faith and that there is no evidence to suggest that the Colombian authorities lack willingness or ability to conduct such proceedings. On this basis, the OTP has not initiated a formal investigation into these events.
Continue reading ‘ASF Canada Report on the ICC Principle of Complementarity and the situation in Colombia’
May 25th, 2012 by Shannon Torrens
Rakto Mladic (Photo: Reuters)
In further developments in the war crimes trial of the Bosnian Serb ex-commander Ratko Mladić, the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) rejected a six-month postponement requested by the defence. The trial, which was adjourned the day after it commenced, will resume on 25 June 2011 following a delay caused by a Prosecution failure to disclose pertinent evidence to the defence. The Mladić defence argued that the prosecution had failed to hand over 1 million pages of evidence and said that it would need six months to go through all the material before resuming the trial in order to ensure the fair trial of the Accused. The Prosecution allege that the document error was made by a technician running a large database of documents, who set up an inventory that did not correspond with the contents of the database. The Proscecution only discovered the error days before the trial began on 16 May.
The Prosecution refuted the argument that the defence had been disadvantaged by this development and said that only 3% of the total number of documents in the case were affected, which was a significantly small proportion, and that many of those documents were either duplicates or English translations of other documents already in the possession of the Mladić defence. They further argued that ”the error is technical in nature and has a limited impact on the Mladić defence’s ability to prepare for the commencement of the evidence presentation.” In rejecting the defence request for a six months adjournment in the proceedings, the Trial Chamber said that a shorter postponement of the original 29 May date to hear the first witness was a more appropriate measure.
On the trial’s opening day Prosecutors had told the court that Mladić was responsible for ethnic cleansing in Bosnia’s war, during which time over 100,000 people lost their lives and 2.2 million others were left homeless. Mladić was arrested one year ago in Serbia after more than 16 years as a fugitive and is charged with 11 counts of war crimes, crimes against humanity and genocide. He is accused of facilitating the 44 month long siege of Sarajevo from 1992 to 1995, which resulted in the deaths of 10,000 people, the vast majority of them civilians. He is also alleged to be responsible for the execution of up to 8,000 Muslim men and boys in Srebrenica in July 1995. Mr Mladić, who has denied all the charges, has reportedly suffered three strokes during his time as a fugitive.
May 25th, 2012 by Admas Habteslasie
T
he Prosecutor of the International Criminal Court presented his third report to the Security Council on Libya on 16 May. The report briefly described the background to the conflict, outlining abuses committed by both pro and anti-Gaddafi forces during and following the conflict, as well as attempts by the Libyan government to bring to justice those guilty for these abuses. Also highlighted were instances of abuse and killing of civilians that had been documented by the UN and human rights organisations in the town of Tawergha, near Misrata, committed by rebels from Misrata.
The Prosecutor’s report also provided an overview of the current situation in Libya, documenting the Libyan government’s ongoing attempts to restore the rule of law, in particular by placing detention facilities run by rebel groups under national control.
A detailed summary of the Libyan government’s ongoing challenge to ICC jurisdiction over the case of Saif Al-Islam Gaddafi, son of the former leader, was provided to the UN Security Council. Libya is currently challenging the case’s admissibility, having filed an application to that effect on 1 May. Under the ICC’s rules of procedure and evidence, the Security Council may also make representations on the matter.
The report outlined the extent of the Libyan investigation into Gaddafi as documented in the Libyan application. In his statement to the UN Security Council, the Prosecutor noted that his office will present its observations to the Pre-Trial Chamber on the matter on 4 June. The Prosecutor noted that the Libyan challenge was “the first time in the short history of the International Criminal Court that a State is requesting jurisdiction to conduct a national investigation against the same individual and for the same incidents under investigation by the International Criminal Court” and emphasised that “the challenge goes to the heart of the system of justice established in 1998 by the Rome Statute”, namely the principle that states have the primary responsibility to conduct proceedings.
May 23rd, 2012 by Jessica Peake
The International Court of Justice has decided that the filing of a Reply by Australia and a Rejoinder by Japan in the case of Whaling in the Antarctic (Australia v. Japan) is not necessary. Accordingly, the written proceedings in the case are closed.
Australia instituted proceedings on 31 May 2010 alleging
that “Japan’s continued pursuit of a large scale program of whaling under the Second Phase of its Japanese Whale Research Programme under Special Permit in the Antarctic (“JARPA II”) [is] in breach of obligations assumed by Japan under the International Convention for the Regulation of Whaling (“ICRW”), as well as its other international obligations for the preservation of marine mammals and marine environment”.
Australia requests the Court to adjudge and declare that “Japan is in breach of its international obligations in implementing the JARPA II programme in the Southern Ocean”, and to order that Japan cease its implementation of JARPA II, to revoke authorizations, permits and licenses allowing the activities which are the subject of the application, and to provide assurances that no further action will be taken under JARPA II until the programme has been brought into conformity with it obligations under international law.
The International Court of Justice has reserved the subsequent procedure for further decision.
May 21st, 2012 by Anna Bonini
In an OP-ED contribution published in the New York Times, Richard Dicker, director of HRW’s International Justice Progam, explains how the Security Council’s power to refer cases to the ICC undermines the Court’s credibility.
The UN Security Council (Photo: Reuters)
This power of referral has significantly increased the risk of political taint, because ‘judicial legitimacy depends on independence from government interference’. The veto powers of the Council’s five permanent members mean in fact that the three of them (US, Russia and China) that have not ratified the ICC statute are effectively immune from the Court. In addition, such powers have been used to shield the leaders of ‘client states’ from liability, the most glaring example of this phenomenon being Syrian President al-Assad, who is effectively immune from ICC prosecution on account of Russia’s protection. At the same time, this risk of politicization allows leaders of repressive governments to undermine the legitimacy of the Court by cynically denouncing political bias and double standards whenever their actions are called into questions.
To minimize the risks posed by the Security Council’s powers, Dicker argues, ICC member states should put pressure on others to ratify the Rome Statute. Further, the Security Council should undertake to make referrals to the ICC based on the severity of crimes, rather the allegiances of the perpetrators. Finally, states supporting international justice should use domestic law to prosecute perpetrators of serious crimes, even if committed outside the state’s territory.
May 20th, 2012 by Anna Bonini
Abdel Basset Ali Al-Megrahi escorted by security officers before appearing in Court (Photo: AFP)
Abdel Basset Ali al-Megrahi died at the age of 60. He was the only person convicted over the 1988 Lockerbie bombing which caused 270 casualties. He died of cancer at his home in Tripoli.
Al-Megrahi was convicted by a special court in the Netherlands in 2001 in relation to the midair explosion of Pan Am Flight 103 and sentenced to life in prison, with a 27-year minimum. He was subsequently detained in Scotland. His release on compassionate grounds in 2009 caused the outcry of the relative of victims of the Lockerbie attack, particularly after he was welcomed in Tripoli as a hero.
Al-Megrahi, a former Libyan intelligence officer, always insisted he was innocent and to this day many Libyans believe he did not have any direct involvement in the bombing and that he was used as a scapegoat by the Gaddafi regime.
May 18th, 2012 by Anna Bonini
by Gillian McCall
Since the International Criminal Tribunal for the former Yugoslavia (ICTY) was set up in 1993, there has been an exponential increase in the use of international criminal law, something one might have otherwise thought had been left behind at Nuremberg 
in 1946. As well as putting on trial contemporary perpetrators of atrocities, international courts have provided inspiration for trials and investigations into crimes of the past — often at the behest of victims’ rights groups who seek not just answers, but also accountability and reparations for past crimes thought to be dead and buried. Last week saw relatives of victims in the 1948 Batang Kali massacre in court asking for an official inquiry into mass killings. Do such old investigations have any value, as either an investigation or as a form of reconciliation?
In 2012 we have reached the stage where for nearly every mass crime, there are legal consequences. The crimes may be referred to the ICC, such as the seven situations currently being investigated or tried by the international court; they could be referred to a hybrid court, such as the ICTY, ICTR and SCSL; they could end up at a Truth and Reconciliation Commission, as in Sierra Leone; or they could result in a Commission of Enquiry such as Bahrain held. There has always been the option of domestic prosecutions, through military or civilian courts, but these too have become more ambitious, for example Egypt and Tunisia have both attempted to try past leaders since the Arab Spring. Of course there are notable exceptions, where those committing crimes have not been subject to rigorous legal investigation, but the trend has clearly tended towards accountability.
Although the current cases demonstrate the variety of different institutions which are set up to deal with mass atrocities, the pre-1993 cases must take more novel approaches, relying on courts that were never designed for this purpose. The 1948 Batang Kali case is not even the oldest to seek judicial assistance of this kind: in April 2012 the European Court of Human Rights ruled that Russia’s unwillingness to conduct investigations had violated the rights of the relatives of those killed by the Soviet Secret Police in the 1940 Katyn massacre — despite the court not coming into existence until more than 10 years after the massacre, and the case not reaching the judges until 80 years after it took place. In Spain, groups continue to seek justice for Franco-era crimes that took place between 1936 and 1975. In Guatemala, Efraín Ríos Montt — who only left office this year — will go on trial for crimes, including genocide, committed in the 1980s. Victim groups have also filed complaints in Chile against former members of the Secret Police during Pincochet’s rule, many of whom remain influential figures in Chile.
Continue reading ‘The Diminishing Impunity for Historic Crimes’
May 18th, 2012 by Anna Bonini
Ieng Sary, one of the accused in ECCC Case 002, was taken to hospital after suffering breathing difficulties during a hearing. He was not in the courtroom when he fell ill, but was following proceedings remotely from a cell. ECCC Judges nevertheless halted the questioning of a witness to instruct his counsel to check on their client. The health conditions of Mr. Sary, who is is 86 years old, are still unknown and it remains unclear whether and for how long he will have to stay in hospital.
Ieng Sary, former Deputy Prime Minister of Former Affairs, is on trial together with Nuon Chea, Deputy Secretary of the Communist Party, and former head of state Khieu Samphan for war crimes, crimes against humanity and genocide. Mr Sary’s wife Ieng Thirith faced the same charges but was declared unfit for trial by the ECCC last year after being diagnosed with Alzheimer’s disease.
May 16th, 2012 by Jessica Peake
At his sentencing hearing today, Charles Taylor again maintained his innocence. He expressed his “sadness and deepest sympathy for the atrocities and crimes that were suffered by individuals and families in Sierra Leone”, but refused to accept responsibility for the crimes committed by rebel forces, claiming that the entire trial was motivated by politics.
On 26 April 2012, the Special Court for Sierra Leone found Charles Taylor guilty of planning, aiding and abetting 11 crimes, including 5 war crimes and 5 violations of Article 3 common to the Geneva Conventions and Additional Protocol II. The remaining crime related to the conscription and enlisting of children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.
The Prosecutor had previously requested an 80 year sentence for Charles Taylor, stating that such a sentence would “truly promote an end to impunity and would bring true reconciliation by giving a measure of justice and accountability to the victims of the multitude of crimes committed against them.” The Defence argued that, as Charles Taylor is 64 years old, an 80 year sentence would guarantee that he will die in prison. Consequently, “what is proposed is a life sentence, a sentence which cannot be imposed by this court”.
The sentencing judgment will be delivered on Wednesday, May 30, 2012.
May 16th, 2012 by Admas Habteslasie
- General Bosco Ntaganda
The ICC Prosecutor’s Office stated that it will seek arrest warrants for two Congolese rebel leaders, General Bosco Ntaganda and Sylvestre Mudacumura.
General Ntaganda was a leading figure within the Forces Patriotiques pour la libération du Congo (FPLC), the military wing of the Union of Congolese Patriots (UPC), the organisaton formed by Thomas Lubanga. Lubanga’s conscription of child soldiers into the FPLC led to his being found guilty of war crimes by the ICC in March. A warrant was issued for General Ntaganda’s arrest in 2006 on the basis of his own involvement in the enlistment of child soldiers. The new warrant for Ntaganda’s arrest alleges, in addition, crimes against humanity and war crimes committed between September 2002 and September 2003 and draws on information revealed during Lubanga’s trial.
Ntaganda, who earned the nickname “The Terminator” during the Congolese civil conflict, is still a controversial and important figure in domestic Congolese politics. He was integrated into the regular Congolese forces as a General as a result of a peace deal organised by Congo’s president, Joseph Kabila, who for years resisted calls for Ntaganda’s arrest despite the outstanding ICC warrant and pressure from international NGOs. Kabila changed his position and began to push for Ntaganda’s arrest in April, following which Ntaganda defected from the Congolese army and, according to an investigation by Human Rights Watch, has begun to again recruit child soldiers.
Sylvestre Mudacumura is the Supreme Commander of the FDLR militia, who, according to the Prosecutor’s office, launched a campaign of attacks against the civilian populations in the Kivu regions of the Congo. Mudacumura is charged with five counts of crimes against humanity committed between January 2009 and August 2010.
The ICC Prosecutor, Luis Moreno-Ocampo, expressed his hope that “these two arrest warrants against leaders of militias… could help to stop the crimes”.
May 16th, 2012 by Jessica Peake
Following on from previous Amnesty International’s calls for an investigation into the NATO airstrikes on Libya, Human Rights Watch issued a report entitled ‘Unacknowledged Deaths: Civilian Casualties in NATO’s Air Campaign in Libya’. In the report, published on 14 March 2012, HRW documents the civilian casualties suffered at the hands of the NATO bombing campaign in Libya in 2011.
The seven-month NATO aerial bombing campaign was extensive, with 9,700 strike sorties and 7,700 precision-guided bombs dropped. International humanitarian law requires that attacks must be directed at a legitimate military objective, and cannot target civilians deliberately. HRW claims that this requirement was not complied with. The report identifies several instances where the presence of a lawful military objective is disputed, and NATO has failed to provide adequate information to prove otherwise.
HRW undertook extensive field investigations throughout Libya from August 2011 to April 2012, examining all the known sites where civilian casualties resulted from NATO airstrikes. HRW identified eight strikes that hit residential homes in which 72 civilians (28 men, 24 children and 20 women) were killed. At seven of those sites HRW failed to find any, or only possible, indications of the presence of Libyan government forces. In the eighth strike investigated, a person believed to be a high-ranking official may have been killed along with seven civilians.
In its report, HRW recognizes that the sites investigated could have been cleaned up by Gaddafi forces or local residents who may have an interest in denying the military nature of a bombing site, but urges NATO to conduct a transparent and impartial investigations into credible allegations of serious violations of the law of war, and to provide prompt and appropriate compensation to families for any civilian deaths, injuries and loss of property. HRW also recommended that NATO make public any findings.
The full report can be read here.
May 16th, 2012 by Anna Bonini
Detainees in Guantanamo (Photo: Getty)
Last week, a tribunal in Kuala Lumpur found former US President George W. Bush, Vice President Dick Cheney, and Secretary of Defense Donald Rumsfeld guilty of conspiracy to allow torture in Guantanamo Bay, Bagram and Abu Ghraib. The conviction, which is the first of its kind anywhere in the world, came after a week-long trial in absentia held before a tribunal organized by the Kuala Lumpur Foundation to Criminalise War (KLFCW), a Malaysian NGO. The tribunal, founded by Malaysia’s retired Prime Minister Mahathir Mohamad, is composed of judges of various backgrounds, including well-known Malaysian practitioners, British barristers and eminent scholars.
During the proceedings, the court heard extensive evidence from victims of torture perpetrated by US soldiers in Iraq, Afghanistan and Guantanamo. In particular, Iraqi woman Jameelah Abbas Hameedi testified about being stripped and humiliated in the infamous Abu Ghraib prison. Iraqi citizen Ali Shalal was also detained there, and told the tribunal how he was attached with bare electrical wires, electrocuted and hung from a wall. British citizen Moazzam Begg, an ex-Guantanamo detainee, was beaten, hooded and put in solitary confinement. Abbas Abid, a 48-year-old engineer from Fallujah in Iraq, still bears the visible traces of ill-treatment, as his fingernails were removed by pliers.
The five-judge tribunal delivered a unanimous guilty verdicts against Bush, Cheney, Rumsfeld and their key legal advisors. The charges, witness statements and other material collected by the Tribunal will be sent to the Chief Prosecutor of the International Criminal Court and to the UN the Security Council, in the hope that either of them will take action.
For further details, click here.
For the full text of the indictment, click here.
May 16th, 2012 by Anna Bonini
by the British Branch of the International Law Association, the Law Faculty of the University of Oxford and Oxford University Press.
Oxford University's New College (Photo: iStock)
Date: 17 May 2012, 12.30 pm – 2.00 pm
Venue: Lecture Room 6, New College, Saint Cross Road, Oxford (United Kingdom)
Programme:
Judge Theodor Meron, current President of the International Criminal Tribunal for the former Yugoslavia, as well as President of the International Residual Mechanism for Criminal Tribunals, will discuss his experience at the International Criminal Tribunals.
Since his election to the ICTY by the UN General Assembly in March 2001, Judge Meron has served on the Appeals Chamber, which hears appeals from both the Yugoslav and Rwandan Tribunals. He is a leading scholar in the fields of international humanitarian law, human rights, and international criminal law.
This event is part of the meetings of the Oxford Public International Law Discussion Group. Everyone is welcome. No RSVP is necessary.
Further information, including forthcoming meetings, is available at the discussion group’s website:
http://denning.law.ox.ac.uk/pil/events.php.
May 15th, 2012 by Dina Mahmoud
by BIICL and the Institute of International Economic Law at the Georgetown University Law Center.
Date: Wednesday 16 to Thursday 17 May 2012
Venue:
Brunei Gallery, School of Oriental and African Studies, 10 Thornhaugh St, London, WC1H 0XG
What is this event about?
Topics under consideration for this year’s conference include:
- China and Russia and the WTO
- The Trans Pacific Partnership negotiations and the future of the WTO and the Doha Round;
- GSP and GSP+ programs (including the recent services waiver), and the GSP bargaining process;
- Subsidies issues in the wake of the global financial crisis;
- Recent developments in WTO dispute settlement jurisprudence; in particular, new jurisprudence interpreting the Technical Barriers to Trade Agreement (in particular, the Clove Cigarettes, Tuna II (Mexico), and US – COOL reports);
- Recent and planned changes in the global financial architecture in the wake of the global financial crisis.
Participants include eminent scholars, practitioners and governmental representatives.
For a full list of speakers and for registration, click here.
May 14th, 2012 by Julien Maton
Date: Thursday 24 May 2012, 17:30 to 19:00
Venue: British Institute of International and Comparative Law, Charles Clore House, 17 Russell Square, London, WC1B 5JP
Speaker: Professor Mary Ellen O’Connell, Research Professor of International Dispute Resolution-Kroc Institute for Peace Studies, University of Notre Dame.
Chair: Professor Robert McCorquodale, Director, British Institute of International and Comparative Law
Commentator: Professor Charles Garraway CBE, Chatham House and University of Essex
In 2002, President Bush authorized the CIA to launch a missile strike from a drone on a passenger vehicle in Yemen. The CIA operators were hundreds of miles away in Djibouti; they killed six individuals in a place where no armed conflict hostilities were occurring. Since then, the U.S. has carried out similar attacks in Pakistan and Somalia. Under President Obama attacks in all three countries have escalated. Administration lawyers have attempted to justify these attacks under a variety of international law-related arguments.
This talk will analyse those arguments, pointing out their deficiencies, and seeking to understand how the ease of attacking with drones has likely led to the practice of targeted killing, a practice that the United States had condemned until 2001.
Click here to register.
May 14th, 2012 by Julien Maton
Presiding Judge Alphons Orie
According to a recent article, Ratko Mladic’s Defence Team has asked for the Presiding Judge at his trial, Alphons Orie, to be disqualified.
The lawyers representing the former Bosnian Serb commander say judge Orie is biased, and thus want the trial to be postponed. They argue that judge Orie was involved in cases in which former subordinates of Ratko Mladic were convicted.
The Defence lawyers have also drawn attention to Judge Orie’s Dutch nationality, which could influence him while hearing charges linked to the 1995 Srebrenica massacre, in which Dutch peacekeepers were accused of not doing enough to prevent the murders of more than 7,000 Bosnian men and boys.
For the lawyers, the alleged bias is so serious “that disqualification of Judge Orie is the only way of preserving the integrity of the proceedings”.
The trial is due to start at the International Criminal Tribunal for the Former Yugoslavia (ICTY) on Wednesday. The proceedings could now be delayed while the Trial Chamber reviews these arguments.
Ratko Mladić, a former Bosnian Serb Military leader has been charged with genocide, crimes against humanity and violations of the laws or customs of war committed during the conflict in Bosnia and Herzegovina. He was indicted by the ICTY in 1995 for genocide, persecutions, extermination, murder, deportation, inhumane acts, terror, unlawful attacks and taking hostages committed primarily against Bosnian Muslim, Bosnian Croat and other non-Serb civilians in Bosnia and Herzegovina from May 1992 to late 1995.
Of particular note, the indictment alleges that forces under Mladić’s command committed genocide and other crimes when they executed over 7,000 Bosnian Muslim men and boys in Srebrenica in July 1995. It is alleged that Mladić committed these crimes as part of a Joint Criminal Enterprise (JCE).
May 14th, 2012 by Dina Mahmoud
- The King of Bahrain granting royal assent to the recent constitutional reforms (Photo: Bahrain News Agency)
In a recent press release issued by the Arab League, Secretary General Nabil Al-Araby hailed the recent Bahraini constitutional amendments as “an important step in the road, supporting the process of reconciliation and national dialogue between the people of Bahrain”. He emphasised the importance of this step by describing it as “the stepping stone towards enhancing policy dialogue and democratic practice”, expressing his hope that this move would contribute to supporting the reform process in the Kingdom towards ensuring the provision of good living standards to all the people of Bahrain, and ensuring the unity, stability and security of the Kingdom.
The main objective of the recent reforms is to achieve a more democratic style of parliamentary governance. The most significant amendment by far is the reform of the relationship between the two powers of the Executive and the Legislator. By restructuring each of the Shura Council and the Council of Representatives (both which make up the bicameral National Assembly), the new Constitution aims to achieve a more balanced relationship between the two powers, by limiting the role of the Shura Council to a simply legislative role, and by increasing the role of the Council of Representatives.
The revamped role of the Council of Representatives comes in the form of the new Article 46 of the Constitution. This article strips the Shura Council of its pre-reform regulatory role over the government, and has instead entrusted this regulatory function to the Council of Representatives. Now, the political agenda of the government is subject to the approval of the Council of Representatives, and on a third rejection, the government is to be dissolved and a new government is to be formed. The inclusion of this new article in the constitution supports the marking out of a political agenda based on the priorities of the people of Bahrain.
Furthermore, the new Article 57 of the Constitution takes a huge step towards a more representative parliamentary membership by now allowing citizens of dual nationality to be eligible for candidacy for a parliamentary position, even if their nationality of origin isn’t Bahraini.
In a move towards political transparency, the new Article 65 of the Constitution allows parliamentary discussions concerning issues of national security to be debated in public, where the secrecy of such matters is to be decided by a majority vote amongst members of the Council of Representatives. Moreover, the new Article 68 of the Constitution gives the Council of Representatives the right to raise any issue of discussion that it deems of importance during parliamentary debates.
To read the speech made by the King of Bahrain when granting royal assent to the recent constitutional reforms, and/or to watch a video of the speech, click here.
May 14th, 2012 by Raphaelle Rafin
The Inter-American Commission on Human Rights (IACHR) has published a Report on the Human Rights of Persons Deprived of Liberty in the Americas. The Report identifies the fundamental problems faced by persons imprisoned on the continent in respect of their human rights. The Report is based on Article 5(6) of the American Convention on Human Rights interpreted as the idea that respect for the basic rights of persons deprived of liberty is not in conflict with the aims of citizen security; rather, to the contrary, prison systems that function as true rehabilitation mechanisms would help prevent crime and violence and thus help achieve citizen security.
Focusing on the right to life and the right to humane treatment, the IACHR identifies various serious and widespread problems found in American prisons: overcrowding and overpopulation; the deficient conditions of confinement, both physical conditions and the lack of basic services; the high incidence of prison violence and the lack of effective control by the authorities; the use of torture in the context of criminal investigations, and the excessive use of force by those in charge of security at prisons; the excessive use of preventive detention, which has direct repercussions on prison overpopulation; the lack of effective means for protecting vulnerable groups; the lack of work and educational programs, and the lack of transparency in the mechanisms of access to these programs; and corruption and the lack of transparency in prison management.
The Inter-American Commission considers that this reality is the result of decades of neglect of the prison problem by successive governments in the region, along with the apathy of societies, which traditionally have preferred ignoring the issue. Reporting on violations to the American Convention based on concrete examples, the IACHR concludes its report with recommendations addressed to Member States of the Organization of American States (OAS).
For the IACHR press release, click here.
For the IACHR collection of thematic reports, click here.
May 13th, 2012 by Julien Maton
The Special Tribunal for Lebanon
The Defence teams of the four accused indicted in the 2005 assassination of former Prime Minister Rafik Hariri have filed this week preliminary motions challenging the jurisdiction of the Special Tribunal for Lebanon.
Though each of the defense teams representing Salim Ayyash, Mustafa Badreddine, Hussein Oneissi and Assad Sabra filed separate motions, many of their arguments challenging the Tribunal’s jurisdiction overlap.
Among the challenges, the motions argue that the U.N. Security Council abused its powers by adopting Resolution 1757, which established the Tribunal, under Chapter VII of its Charter as the assassination of former Prime Minister Hariri, and the deaths and wounding of many others, on 14 February 2005, while tragic, could not in any sense be considered to pose a threat to international peace and security. It did not constitute an armed conflict and it did not create any cross-border effects.
Moreover, for the Defence teams, the Security Council exceeded its powers by delegating the jurisdiction to exercise domestic law to an international body without consent. There is no basis in the UN Charter which empowers the Security Council to do so as the Security Council itself has no authority to apply Lebanese law or to delegate that competence to others. The UN Charter only refers to “international law” (not domestic law) as being within the realm of its competence.
Defense counsel for the accused also argued that the agreement between Lebanon and the U.N. to establish the court was illegal and violated Lebanon’s Constitution as Lebanon had never consented to be bound by the ‘agreement’ which was negotiated, adopted and signed on behalf of the Lebanese Republic by persons acting without the requisite legal capacity, and never ratified in compliance with the provisions of the Constitution of the Lebanese Republic as required by international law.
Being unlawfully and unconstitutionally established, the STL was thus not “established by law”, said the Defence, the minimum requirement for any judicial body worthy of the name, which entails that the STL could not provide a fair trial to any accused, since an accused has a fundamental right to be tried by a tribunal “established by law”.
The Defence added that whilst the Statute provides for a prohibition against non bis in idem, it is incapable of enforcing that guarantee in an effective manner as Lebanese courts could readily re-qualify the underlying conduct and re-prosecute any of the accused (acquitted or convicted).
The Defence also highlighted the hyper-selectivity of the Tribunal’s jurisdiction as in the history of criminal law, there is no case where a new jurisdiction was created to adjudicate upon only one criminal incident.
For the motion of Salim Ayyash’s Defence Team, click here.
For the motion of Mustafa Badreddine’s Defence Team, click here.
For the motion of Hussein Oneissi’s Defence Team, click here.
For the motion of Assad Sabra’s Defence Team, click here.
May 13th, 2012 by Julien Maton
Mladen Markač and Ante Gotovina
The Appeals Hearing in the case of Ante Gotovina and Mladen Markač will be held this Monday, 14 May 2012 from 9:00 to 18:30 in Courtoom I.
iLawyer Dr. Guénaël Mettraux is Counsel for General Ante Gotovina.
On 15 April 2011, the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) sentenced Ante Gotovina to 24 years and Mladen Markač to 18 years.
According to the judegment (Volume I - Volume II), Ante Gotovina, Commander of the Split Military District of the Croatian Army, from 9 October 1992 to March 1996, was overall operational commander of the military offensive called “Operation Storm” that aimed to reconquer the Krajina region, south of Croatia, the last pocket of resistance still held by Serbs in Croatia in 1995.
The judges held that General Gotovina contributed to the planning and preparation of Operation Storm and failed to make a serious effort to prevent and follow up on crimes reported to have been committed by his subordinates against Krajina Serbs. For the Trial Chamber, General Gotovina’s failures had an impact on the general attitude towards crimes in the Split Military District. Based on these considerations, the Chamber found that General Gotovina’s conduct amounted to a significant contribution to a joint criminal enterprise.
Concerning Mladen Markač, the Chamber judged that he contributed to the planning and preparing of Operation Storm. It also found that he ordered the Special Police’s shelling of the Croatian village of Gračac on 4 and 5 August 1995, which constituted an unlawful attack on civilians and civilian objects, and brought about the forcible displacement of persons. The order to shell Gračac amounted, for the Chamber, to a significant contribution to the joint criminal enterprise.
The Trial Chamber found that the third accused, Ivan Čermak, Knin Garrison Commander and representative of the Croatian Government in dealing with members of the international community and media concerning Operation Storm, was not a member of the joint criminal enterprise and had not made any intentional and significant contribution to it.
May 12th, 2012 by Julien Maton
Africa Research Institute is pleased to announce the publication of “How Rwanda judged its genocide” by Dr. Phil Clark, co-founder of Oxford Transitional Justice Research and lecturer at the School of Oriental and African Studies. This Counterpoint is published to coincide with the official closing of the gacaca courts in June.
Since 2001, the gacaca community courts have been the centrepiece of Rwanda’s justice and reconciliation process. Nearly every adult Rwandan has participated in the trials, but lawyers have been banned from any involvement. Many human rights organisations fiercely opposed the use of gacaca for trying genocide cases, on the grounds that it fell short of international standards of fairness.
Dr. Clark has spent nine years observing gacacahearings and interviewing participants. In his Counterpoint, he argues that much criticism of gacaca reflects legal rigidity in the face of the unprecedented challenges confronting post-genocide Rwanda – and a limited understanding of the aims of the community courts. Gacaca was inevitably imperfect, but also highly ambitious and innovative. While the full impact of the process will not be apparent for many years, Dr. Clark asserts that gacaca has delivered benefits to Rwandans in the spheres of justice, truth and democratic participation. He suggests that other societies confronting the aftermath of mass conflict could learn much from Rwanda’s approach to local justice.
May 12th, 2012 by Shannon Torrens
ICTR (Photo: AFP)
The International Criminal Tribunal for Rwanda (ICTR) decided on 9 May that it would transfer a fourth case file, that of former Mayor (Burgmestre) of Nyakizu commune in Butare Prefecture and genocide suspect, Ladislas Ntaganzwa to the Rwandan national courts. In addition to his role as Burgmestre, Ntaganzwa also acted as chairman of the MRND for the Nyakizu commune. Ntaganzwa is one of nine fugitives wanted by the ICTR. He has been charged with conspiracy to commit genocide, complicity in genocide, direct and public incitement to commit genocide, crimes against humanity and violations of the Geneva Conventions.
Aside from Ntaganzwa, to date, three cases have been transferred by the ICTR to Rwanda. Namely that of Jean Uwinkindi, whose transfer decision was confirmed by the ICTR Appeals Chamber on 16 December 2011, resulting in his subsequent transfer to Rwanda in April. The cases of two other suspects who remain fugitives, former criminal investigation department inspector Fulgence Kayishema, and former Burgmestre, Charles Sikubwabo were referred to Rwanda on 22 February 2012 and 26 March 2012. If these fugitives are found and arrested they will be extradited to Rwanda to stand trial. The transfer of cases from the ICTR to Rwanda is further evidence of the ICTR’s plan to implement the winding up of its trials by June of this year and all appeals by 2014.
This blog has previously discussed the transfer of accused Jean Bosco Uwinkindi from the ICTR to Rwanda in the context of its significance as a judicial development for both the ICTR and Rwanda. The ICTR had previously been reluctant to transfer its accused to Rwanda, because of perceived deficiencies in the Rwandan legal system. In deciding to tranfer the remaining genocide cases to Rwanda, the Tribunal is evidencing its opinion that the Rwandan judicial system is now able to prosecute those accused of genocide, whilst maintaining fair trial standards and applying principles of the rule of law.
In rendering this decision on Wednesday, the Referral Chamber stated that it hoped Rwanda would put into practice its commitment and willingness to enforce the highest standards of international justice. Rwanda has been working towards such an assessment by the ICTR since the 1994 genocide and the decision to establish the Tribunal outside of the country, in Arusha, Tanzania. The ICTR was established by UN Security Council resolution in order to prosecute those most responsible for the crimes committed during the 1994 Rwandan Genocide. Those deemed “most responsible” were tried by the ICTR in Arusha, while those less culpable were tried by the local courts and gacaca system of justice.
May 11th, 2012 by Raphaelle Rafin
Credit: BBC News UK
The five-judge panel of the European Court of Human Rights (ECtHR) ruled this Wednesday that, although Abu Qatada’s appeal had been lodged in time, “the request should be refused”. The judges declined to explain their decision which was announced by a brief press release.
Abu Qatada had filed an appeal on 17 April contesting the Chamber’s judgment of 17 January 2012. The judgment became final with the decision of the panel to reject the appeal. And yet, deportation to Jordan is not yet scheduled. In its original judgment, the Court held that the United Kingdom would violate Article 6 if it was to expel Abu Qatada. The British Government now claims to have received assurances from Jordan that a constitutional change in the country meant torture evidence would no longer be used. Following the rejection of Abu Qatada’s appeal, the home secretary Theresa May declared: “I am pleased by the European court’s decision. The Qatada case will now go through the British courts. I am confident the assurances we have from Jordan mean we can put Qatada on a plane and get him out of Britain.” The ECtHR has not confirmed these elements. Abu Qatada may still have months, or years, before leaving the UK.
