Archive for June, 2012
June 27th, 2012 by Anna Bonini
By Wayne Jordash
(Photo: Evert-Jan Daniels AP)
Charles Taylor was convicted on all 11 counts of an indictment that charged the Accused with five counts of crimes against humanity; in particular: murder, rape, sexual slavery, other inhumane acts, and enslavement. In addition to the crimes against humanity, he was also convicted on five counts of violating Article 3 Common to the Geneva Conventions and Additional Protocol II, punishable under Article 3 of the Statute, for acts of terrorism, violence to life, health and physical or mental well-being of persons, in particular murder, outrages upon personal dignity, violence to life, health and physical or mental well-being of persons, in particular cruel treatment, and pillage. The remaining count, on which Taylor was also found guilty, was that of conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities, a serious violation of international humanitarian law punishable under Article 4 of the Statute.
Although the Prosecution had alleged liability on the basis of ‘joint criminal enterprise’ (JCE) for all of the crimes in the indictment, the Trial Chamber found no such liability. Most of Mr. Taylor’s convictions were rendered on the basis of aiding and abetting crimes, under Article 6(1) of the Statute. He was found guilty under this mode of liability for the majority of conduct that fell within Counts 1 – 11. He was also found guilty for the remaining conduct, under the same counts, on the basis of planning the commission of specified crimes following attacks in three districts of Sierra Leone between December 1998 and February 1999.
The Trial Chamber passed a sentence of 50 years. As reported in this blog on 30 May 2012 this sentence was worryingly incongruous with finding Taylor responsible for the majority of the crimes as a secondary participant. It involved explicitly removing the distinction between the more direct modes of participation (such as perpetrating a crime, committing crimes as a member of a joint criminal enterprise (“JCE”) or ordering a crime) and Mr. Taylor’s convictions for aiding and abetting. This being so, why didn’t the Trial Chamber convict Taylor on one of these more direct bases?
Some non-starters: superior responsibility, planning, & ordering
An analysis of the Judgment and the facts of the case show that, for the vast majority of the crimes, the evidence could not begin to sustain other more direct modes, such as ordering (e.g., 6979 of the Judgment) or planning (e.g., 6977). Whilst it is true that Mr. Taylor was convicted for planning certain crimes following attacks in three Districts of Sierra Leone between December 1998 and February 1999 (e.g., 6977), the analysis, to put it mildly, is less than convincing and is one of the weakest parts of the Judgment (e.g., 3099 – 3130).
Continue reading ‘Charles Taylor, JCE and Letting Sleeping Dogs Lie’
June 26th, 2012 by Dina Mahmoud
In his judgement delivered on 2 June 2012, Judge Ahmad Refaat, President of the Criminal Court in Cairo, convicted ousted ex-President Hosni Mubarak and former Interior Minister Habib Al-Aadly for murder and conspiracy to murder pro-revolutionary protesters in January 2011, and sentenced each of the convicted defendants to life imprisonment.
However, the judgement declared that the financial charges against Mubarak, his two sons Gamal and Alaa, and businessman Hussein Kamal Salem were out of time and therefore dismissed them. Mubarak was also acquitted of all charges of corruption. Businessman Hussein Kamal El-Deen Ibrahim Salem, a close friend of Hosni Mubarak, was tried in absentia because he was being held in Spain at the time, where he is facing charges of money laundering under Spanish law.
The sensational trial of the century in Egypt involved six other defendants, all of whom were also acquitted:
- Former First Assistant Interior Minister for the Central Security Forces Sector Major General Ahmed Mohamed Ramzy Abdel Rashid
- Former First Assistant Interior Minister for Public Security Major General Adly Mostafa Fayed
- Former First Assistant Interior Minister for the State Security Agency Major General Hassan Abdel Rahman
- Former head of Cairo Security Directorate Major General Ismael al-Shaer
- Former head of Giza Security Directorate Major General Osama al-Marassi
- Former head of 6th of October Security Directorate Major General Omar al-Farmawy
A few days after the delivery of this judgement, a judicial mission headed towards Cyprus to try to recover assets smuggled out by Mubarak and his family and some 551 figures of the old regime, in order to meet interim costs ordered by the recent judgement of around 2million L.E. to be paid to society by each of the two convicted defendants.
For a script of the judgement in Arabic, click here. To watch a video recording of the judgement, click here.
For a simple breakdown of the whole proceedings of the trial in English click here.
June 23rd, 2012 by Julien Maton
Photo: Amel Emric / AP
According to a recent article, members of an expert group chosen by the Bosnian Council of Ministers with the help of the United Nations Development Programme (UNDP) presented a draft of the Transitional Justice Strategy, whose goal is to allow all victims of war in Bosnia the right to truth about their suffering.
As was highlighted on this blog, victims in Bosnia are not likely to receive all the information and documentation related to the crimes they suffered.
For Niko Grubesic, president of the round table at which the strategy was presented, post conflict Bosnia must prosecute all war criminals, but it must also give satisfaction to all victims of war and reconcile the Bosnian society.
In order to do so, the draft of the Transitional justice Strategy envisages, among other things, the forming a non-judicial institution for victims, as well as giving victims rights to both material and nonmaterial compensation and memorials.
According to a survey done by UNDP, more than 70 percent of the Bosnian population believes that victims of war do not get the benefits they should.
Thomas Osorio, advisor on the Rule of Law and Human Rights for UNDP, called on everyone present at the round table to support the Transitional justice strategy, especially as the document will be presented before Parliament later during the summer, and so requires “as much support as possible”.
“A journalist asked me recently how can we make sure this won’t be just another strategy that is not implemented, and I replied we can’t, but let me ask a question in return, who could possibly be against allowing compensation to victims, allowing people a place to build memorials, or implementing the rule of law through institutional reform?” said Osorio.
June 23rd, 2012 by Julien Maton
In a recent article, Christian Axboe Nielsen analyses a decision and a new rulebook issued in March 2012 by the State Court of Bosnia and Herzegovina, which severely restricted the public’s access to information relevant to the proceedings of the court, including the identity of those convicted.
According to the author, even if the Court stated that it is merely implementing the requirements imposed by the Personal Data Protection Agency in Bosnia and Herzegovina, this raises concern for the future of the judiciary in Bosnia and Herzegovina, as well as fundamental questions about the Court’s own understanding of its mission.
For the author, the implementation of such standards is often carried out in such a way as to severely restrict the access of the public and of professional researchers to information that is normally publically available in EU member states, where the documentation and information generated by the court system is generally publically accessible with the aim of ensuring the transparency of the judicial process.
Christian Nielsen argues that confidentiality must be the exception and not the rule, saying that a criminal court is also a social stage on which society upholds or restores its norms while censuring gross violations of human rights and other fundamental social values. Moreover, especially in cases of genocide, crimes against humanity and war crimes, the publication of the identity of the perpetrator(s) is often an important part of the healing process for the victims, as it helps to halt the process of denial of the crime.
Based on that, says the author, the Court’s decision to withhold such information and documentation from the public presents a puzzling and self-emasculating strategy, wondering how the victims could feel that justice is done, if the identities of convicted perpetrators of the worst crimes and places where those crimes were committed are hidden.
The author concludes his article by analyzing this problematic from the perspective of the criticisms of the work of the International Criminal Tribunal for the Former Yugoslavia (ICTY), saying that particularly during the first decade of its operations, the ICTY was often rightly criticised by international and Bosnian NGOs for devoting insufficient attention to outreach activities. While the ICTY has done much in recent years to make all kinds of court records available to the public, the State Court in Sarajevo now seems to be steering in the opposite direction.
According to Christian Nielsen, such a climate of disinformation and misinformation will seriously inhibit the Court’s work and will detrimentally contribute to the ongoing attempts to disable and cripple the Court. In this sense, says the author, it is strangely paradoxical that the Court should contribute to silencing itself.
June 22nd, 2012 by Julien Maton
Date: 18-24 November 2012
Venue: Headquarters of the International Institute of Higher Studies in Criminal Sciences (ISISC), Via Logoteta 27, Siracusa (Italy)
Speakers will include among others Professor M. Cherif Bassiouni(Egypt/USA), Dr. Roja Fazaeli (Iran/Ireland) and Judge Dr. Mohamed Ibrahim (Egypt).
The goal of this seminar is to provide instruction to military officers, legal advisors, operational planners, political and policy advisors by internationally pre-eminent scholars on Shari’a. The seminar will offer an introduction to Shari’a Law, specifically discussing crime and punishment in the Shari’a, law of armed conflict, religiously motivated political violence, women’s and minorities’ rights and operational issues.
This year, the seminar will be also open to a limited number of “external” participants. The registration deadline is 28 October.
For more information regarding the seminar and the way to register, please click here.
June 19th, 2012 by Julien Maton
On June 5th, Richard J. Rogers, Lawyer at the Extraordinary Chambers in the Courts of Cambodia (ECCC), wrote a letter to the UN-Under-Secretary-General, concerning interference in the judicial process of his appointment as Defence Counsel to the suspect in Case 004.
Richard Rogers alleges that Knut Rosandhaug, the Deputy Director of the Office of Administration (DDOA), and Isaac Endeley, the Chief of the Defence Support Section (DSS), are continuing to flout a court order issued on 3 May 2012 by the former UN-appointed international reserve Co-Investigating Judge, Laurent Kasper-Ansermet, and thereby undermining the rights of his client.
The Extraordinary Chambers in the Courts of Cambodia
The purpose of the letter is to request the Under-Secretary-General to instruct the DDOA and DSS to comply with the court order. This order was issued after the Suspect’s completion of a DSS form in which the latter selected Richard J. Rogers and Mr Mom Luch as Counsel. The suspect later confirmed his choice in a letter dated 20 May 2012. However, says Rogers, the DDOA and DSS have refused to respect the Suspect’s choice of Counsel or implement the Order. Continue reading ‘Richard Rogers on the Interference in the Judicial Process of his Appointment as Defence Counsel at the ECCC’
June 19th, 2012 by Anna Bonini
by Philippa Webb
Ahmadou Sadio Diallo (Photo: www.mediaguinee.net)
This afternoon, the ICJ delivered its Judgment on the question of compensation in the Ahmadou Sadio Diallo case (Republic of Guinea v. Democratic Republic of the Congo). When settling legal disputes between States, the ICJ typically declares that a party has violated an obligation under international law. The Court may order certain action to remedy the situation (eg, the cancellation of an arrest warrant that violates a foreign official’s immunities, the enactment of legislation, or the review and reconsideration of certain national cases), but it almost never gets involved in the nuts and bolts of calculating damages. This is the first time in 63 years that the ICJ has issued a Judgment on compensation (see Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania) 1949).
The case concerns the arrest, detention and expulsion from the DRC of a Guinean businessman, Mr Diallo, in 1995-1996. It is unusual for an ICJ case to focus on an individual, but Guinea had decided to exercise diplomatic protection over Mr Diallo’s rights, in essence bringing the case as if the injury had occurred to the State itself. When the ICJ issued its Judgment on the merits in November 2010, it found the DRC had indeed violated Mr Diallo’s rights and it was obliged to make appropriate reparation, in the form of compensation. It gave the parties six months to agree on the amount, which they failed to do.
ICJ President H.E. Judge Hisashi Owada reading the judgment on the merits in the Ahmadou Sadio Diallo case on 30 November 2010 (Photo: www.icj-cih.org)
A quick glance at the parties’ submissions reveals why they were unable to reach agreement. Guinea estimated compensation of approximately US$11.6 million, plus a further US$500,000 for its ‘unrecoverable costs’ as a result of instituting the proceedings. The DRC, on the other hand, estimated US$30,000 would compensate Mr Diallo for his wrongful detention and expulsion, with each party bearing its own costs of the proceedings. Interestingly, when Guinea instituted proceedings before the ICJ in 1998, it requested the ICJ to order the DRC to pay US$31 billion for Mr Diallo’s losses and nearly US$5 billion to Guinea in damages, an amount about 7 times its GDP…
In today’s Judgment, the ICJ awarded modest compensation: US$85,000 for the non-material injury suffered by Mr Diallo and US$10,000 for material injury in relation to his personal property. No compensation was awarded for alleged loss of remuneration or for alleged deprivation of potential earnings. Referring to Article 64 of the Statute, the Court decided each party shall bear its own costs. The Judgment was by a strong majority of 15-1 and was a clear win for the DRC.
The Judgment highlights the challenge of calculating damages for injuries suffered by an individual within the framework of the ICJ, a court designed to settled questions of international law in inter-State disputes. In a departure from its usual style, the ICJ actively looked to the practice in other international bodies (including the European Court of Human Rights, the Inter-American Court of Human Rights, the Iran-United States Claims Tribunal, the Eritrea-Ethiopia Claims Commission, and the UN Compensation Commission) (para 13 of the Judgment). The challenge facing the ICJ was magnified by the sheer lack of evidence. The parties had each submitted a single written pleading. The ICJ noted that the abruptness of Mr Diallo’s expulsion from the DRC made it difficult for him and Guinea to locate certain documents (para 16). Indeed, Guinea did not offer any specific evidence on most of the claims.
The Peace Palace in The Hague (Photo: www.amsterdamconguia.com)
No experts were used, unlike in the Corfu Channel case, where the ICJ appointed three experts to assess of the amount of compensation. The ICJ’s predecessor, the Permanent Court of International Justice, had also sought expert advice on compensation in the Chorzow Factory case in 1928 (although the parties reached an agreement on the amount before the completion of the experts’ report). In Guinea v. Congo, there was apparently little evidence for any hypothetical experts to assess. The Court relied on ‘equitable considerations’ (paras 24 and 33).
In its 2005 Judgment in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), the Court found Uganda to be under an obligation to make reparation to the DRC for massive violations of human rights and the exploitation of natural resources. In wording similar to the 2010 Guinea v. Congo Judgment – but without setting a six-month time limit – the ICJ decided that failing agreement between the parties, reparations shall be settled by the Court. Negotiations between the DRC and Uganda have proceeded haltingly, and the ICJ may soon again be turning its mind to the question of compensation.
June 16th, 2012 by Anna Bonini
Gen. Robert Mood, head of the UN observers deployed in Syria, announced today that the mission’s patrolling and monitoring activities have been suspended due to escalating violence in the country, which poses a significant risk to the observers and prevents them from carrying out their mandate.
The suspension is ‘until further notice’ and will be reviewed on a daily basis. Already yesterday, Gen. Mood had warned that the UN might be obliged to evacuate its 300 observers from Syria unless the situation improved. Last week, a car carrying international monitors was attacked by Assad supporters who threw stones and metal rods at their convoy and was subsequently targeted by gunshot fire. More generally, the UN- and Arab League-sponsored cease-fire, which was supposed to go into effect on 12 April, is being widely ignored by both the Syrian government and opposition movements.
For a video recording of Gen. Mood’s statement, click here.
June 16th, 2012 by Anna Bonini
Serge Brammertz (Photo: Getty)
Yesterday, Gambian lawyer Fatou Bensouda took over from Moreno Ocampo, commencing the 9-year term which will see her heading the ICC Office of the Prosecutor until 2021. In an article appeared in The Guardian, ICTY Prosecutor Serge Brammertz commented on Ms Bensouda’s ‘though assignment ahead’, as well as on the current situation of the ICC and of international justice in general.
Brammertz dismisses widespread criticism of the Court, often accused of costing too much and taking too long. Whilst international justice is undeniably expensive, the various international criminal tribunals created since 1993 have accomplished achievements which are significant enough to justify such an expense. Amongst others, Mr Brammertz cites the ICTY’s success in securing that none of its 161 indictees remain at large and the recent, unprecedented conviction of a former head of state, Charles Taylor, for international crimes. ‘It would be foolish to withdraw resources for international justice just as we are poised to reap the efficiencies of this groundwork.’
Another criticism often moved against the International Criminal Court concerns its excessive focus on the African continent. According to the ICTY Prosecutor, one remedy to this problem would be universal ratification of the Court’s statute, which does not appear, however, to be forthcoming. In the interim, it would be important to ensure that the Security Council exercises its power of referral to the Court in an impartial and objective manner.
In addition, as the work of the ICTY demonstrates, prosecutions for war crimes and crimes against humanity at the international level cannot be the only answer to such atrocities. The activity of international criminal tribunals must be twinned with building the capacity of national systems to prosecute crimes, an opportunity that the ICC has, up to now, missed. Similarly, resort to international fact-finding investigation commissions can be in many cases a more appropriate response than referral to the ICC, or at least a preliminary step to assess whether ICC intervention is the best follow-up action. Currently, such commissions are created and organised on an ad hoc basis., which causes delay and potentially undermines the quality of the result. According to Brammertz, the development of standard procedures for collecting and storing evidence or conducting interviews and the creation of a permanent operational infrastructure would be important steps in this respect.
June 16th, 2012 by Raphaelle Rafin
On Wednesday 13 June 2012, the European Court of Human Rights (ECtHR) held a hearing in the case of Georgia v. Russia (Application no. 13255/07). The case concerns the alleged harassment of the Georgian immigrant population in the Russian Federation in autumn 2006, following the arrest of four Russian officers in Tbilisi, Georgia on suspicion of espionage against Georgia.
The Government of Georgia filed an application with the ECtHR on 26 March 2007. The Georgian authorities complained that there existed an administrative practice involving the arrest, detention and collective expulsion of Georgian nationals from the Russian Federation. The application claims violation of provisions on torture and degrading treatment; liberty and security; respect for private and family life; right to an effective remedy; limitation on use of restrictions on rights; protection of property and right to education; prohibition of collective expulsion of aliens; and procedural safeguards relating to expulsion of aliens.
The Government of the Russian Federation contested the Georgian Government’s allegations and submitted that they had not adopted reprisal measures against Georgian nationals.
The hearing of the parties followed a witness hearing which was held in Strasbourg from 31 January to 4 February 2011 by a delegation of five judges of the ECtHR. The Court is now to begin its deliberations in private.
For the press release, click here.
For the webcast of the hearing, click here.
June 13th, 2012 by Raphaelle Rafin
January 8 demonstration in Tunis © EPA
Tunisia’s National Fact-Finding Commission on Abuses released its final report on 4 May 2012. The Commission, which was created by decree-law no. 7/2011 on 18 February 2011, is a public and independent body charged with investigating the abuses and violations committed during the uprising started on 17 December 2010.
The Commission based its conclusions on investigations that were conducted throughout the country and testimonies collected from victims and their relatives. The Report includes figures on casualties and woundings during the popular uprising. According to the Commission’s statistics, the official number of deaths comes to 338, whilst 2,147 people were reported wounded.
The Report states that among the 338 deaths, 233 were civilians, 5 from the military, 4 police officers and 86 prisoners. Among the wounded, 2,056 were civilians, 62 prisoners, 26 police officers and one from the military. The majority of victims were young, with 82% of the dead and 76% of the wounded being under the age of 40. Regarding gender repartition, the overwhelming majority of the victims was constituted by men (96% of the dead and 89% of the wounded). 15 children were also killed during the revolution: 5 were shot in the head and one straight to the heart. Casualties were mainly recorded in the interior regions of Kasserine, Sidi Bouzid, and Gafsa, as well as the capital Tunis.
For the full report in Arabic, click here.
June 13th, 2012 by Jessica Peake
The International Court of Justice has announced that it will hold a public sitting on Tuesday June 19, 2012, at 3 p.m. at with Mr Dalveer Bhandari will be sworn in as a new Member of the Court.
Mr Bhandari will swear a “solemn declaration in open court that he will exercise his powers impartially and conscientiously” in accordance with Article 20 of the Statute of the ICJ.
Dr. Justice Bhandari has served in the Indian Judiciary for more than 20 years, and is currently serves as a senior judge in the Supreme Court of India. Dr. Bhandari will replace Mr Awn Shawkat Al-Khasawneh (Jordan), following his resignation from the Court, and will sit for the remained of Judge Al-Khasawneh’s term, which is set to expire on 5 February 2018.
June 13th, 2012 by Anna Bonini
- Ratko Mladic (Photograph: http://bocktherobber.com)
In an OP-ED recently appeared in Al-Jazeera, Refik Hodzic – a Bosnian journalist, filmmaker and justice activist, currently working as director of communications at ICTJ - addresses the thorny issue of Ratko Mladic’s legacy and its lasting impact on Bosnia and Herzegovina.
Intercepts and TV recordings presented by the Prosecution in various trials before the International Criminal Court for the former Yugoslavia left the international community, and individuals all over the world, little doubt as to Mladic’s role in what he himself foreshadowed as a ‘genocide’ and as to his direct involvement in the Sbrebrenica massacre. Nevertheless, the former Yugoslav People’s Army general and chief of staff of the Army of the Republika Srpska retains, according to Hodzic, an almost mythical status among the vast majority of Serbs.
The ‘separation of the people’ strategy and the ‘ethnic divide’ lexicon adopted amongst others by Mladic and Karadzic still produce significant effects in today’s Bosnian political panorama. Last April, while Sarajevo grieved on the 20th anniversary since the start of the longest siege in modern history, Republika Srpska President Milorad Dodik insisted that ‘there never was a siege of Sarajevo! What they are marking today in this provocation is the beginning of ethnic cleansing of Serbs from Sarajevo.’ Despite his revisionist rhetoric (which has, in the past, went so far as advocating for the dissolution of Bosnia and celebrating convicted Serb war criminals as national heros), Mr Dodik remains the reference point for the European Union and the rest of international community, the ‘leader who will take Republika Srpska and Bosnia to a prosperous EU future’.
Milorad Dodik (Photograph: www.vkladusa.com)
Such a schizophrenic reality, Hodzic notes, mirrors the failure by the international community to adopt a comprehensive, integrated plan for post-war Bosnia and Herzegovina. International leaders decided to implement transitional justice mechanisms like the ICTY in complete isolation from other form of assistance, such as security reform and development. The permanent fragility of the Bosnian state and the negligible impact ICTY trials have had on national reconciliation are a direct result of such failures, as is the lasting public perception of Ratko Mladic as a Serb hero. ‘Unless his legacy is addressed in Srebrenica and the rest of Bosnia, the outcome of his trial in The Hague may prove to be merely symbolic, if that.’
June 12th, 2012 by Julien Maton
This Wednesday, the Trial Chamber of the Special Tribunal for Lebanon has scheduled a hearing to hear arguments of the parties regarding the legality of the Tribunal and its establishment.
As previously mentionned on this blog, Defence Counsel of the four accused have recently filed motions challenging the legality and jurisdcition of the Tribunal. In their motions, the Defence argued that the STL was established unlawfully and applies justice selectively.
The Prosecution has filed its response on 6 June 2012, arguing that the establishment of the Tribunal was lawful and requesting the Trial Chamber to dismiss the Defence motions.
The Prosecution’s response requested the Trial Chamber to dismiss the Defence motions due to the following arguments:
• The Defence motions fall outside the scope of the Tribunal’s rule allowing challenges to its jurisdiction. The Prosecution argues that the challenge to jurisdiction should be limited to whether the scope of the indictment goes beyond the Tribunal’s mandate.
• The Defence do not have standing to raise violations of Lebanon’s sovereignty.
• The Security Council did not abuse its powers when it established the Tribunal under Chapter VII of the UN Charter, as a measure to maintain international peace.
• The Defence challenges fail to demonstrate any illegality in the establishment of the Tribunal because:
- The request to establish a Tribunal with an “international character” was submitted to the UN following a decision from the Council of Ministers of Lebanon.
- The Lebanese President was involved in the negotiations, which led to the approval of the agreement.
- The agreement was approved by the Council of Ministers in accordance with the Lebanese Constitution.
- Lebanon’s conduct towards the STL confirms that no breach of its sovereignty has taken place.
• Lebanon agreed to comply with the provisions of the annexed document, including the STL Statute.
After the hearings, the Trial Chamber will consider the arguments and observations submitted by the parties and participants and it will rule on its own jurisdiction and competence to try the case. This will be a major step forward as it is a fundamental question that needs to be determined before a trial can commence. If the Trial Chamber determines that the STL has no competence to deal with the crimes under its jurisdiction, this could mean that, pending an appeal, the STL could no longer operate as an institution.
June 12th, 2012 by Anna Bonini
After a period of inactivity due to financial constraints, the website of the Sierra Leone Truth and Reconciliation Commission (‘TRC’) was re-launched on 29 May 2012. In a recent article appeared in Sierra Express Media, Sonkita Conteh emphasises the importance of this achievement.
The Sierra Leone TRC was established by the Lomé Peace Accord, signed on 7 July 1999 between the opposing factions in the civil war that gripped Sierra Leone for over a decade. The Commission was mandated to “create an impartial historical record of violations and abuses of human rights and international humanitarian law related to the armed conflict in Sierra Leone […], to address impunity, to respond to the needs of the victims, to promote healing and reconciliation and to prevent a repetition of the violations and abuses suffered.” Following extensive investigations and public hearings between 2002 and 2004, the Commission issued its final report to the Sierra Leone Government, as well as the UN Security Council. This three-volume report includes detailed findings on the violations and abuses occurred during the civil war and the identity of their victims and perpetrators, as well as extensive recommendations for the Sierra Leonean Government moving forward.
TRC public hearings in Makeni on 29 May 2003 (Source: www.sierraleonetrc.org)
Sonkita Conteh explores the developments in Sierra Leone since the report was issued almost a decade ago, particularly with regard to the situation of the judiciary. In this respect, some important achievements must be noted: a few more court buildings have been erected, a code of conduct for judicial officers has been adopted and legislation dealing with legal aid has been enacted. Nevertheless, the picture emerging from Sonkita Conteh’s article is, overall, a gloomy one.
Corruption remains a widespread problem within the Sierra Leonean judiciary, as do the idiosyncrasies of the judicial system’s hierarchical structure. On the one hand, the lack of central supervision means that many courts, particularly the lower and rural ones, remain “painfully shambolic and unproductive”. On the other hand, senior judicial officers often interfere in court proceedings at the lower level, dictating the outcome of many Magistrates’ Courts cases. The conduct of court hearing is an additional source of concern, as “magistrates fail to protect [litigants, witnesses and accused] from the coarse goading of lawyers who mask their inability to properly examine witnesses in insult. Regrettably, magistrates have been observed joining in ridiculing witnesses especially in sexual offences cases. Accused persons in detention, and without legal representation, fare worse.”
Wide-ranging reform at most, if not all, levels of the Sierra Leone judicial system appears urgently needed. In this context, the resuscitated TRC website is a significant achievement and an opportunity for the people of Sierra Leone to be reminded of the country’s troubled past and of the challenges still laying ahead, measuring present action in the hope that “things might so improve in the judiciary as to command a volte-face in public opinion”.
June 12th, 2012 by Jessica Peake
On 4 May, the public hearings concluded in the Territorial and Maritime Dispute (Nicaragua v. Colombia) case before the International Court of Justice (ICJ) in the Hague.
The case was brought to the ICJ by Nicaragua on December 6, 2001, and the dispute concerns a”group of relating legal issues” subsisting between the two States “concerning title to territory and maritime delimitation” in the western Caribbean.
The Republic of Nicaragua contends that it has jurisdiction over the group of islands and keys of San Andreas and Providencia, located in the west Caribbean, which became part of the sovereign territory of Nicaragua following the dissolution of the Federation of Central American States in 1838. Colombia asserts jurisdiction over the same group of islands on the basis of the Barcenas-Esguerra Treaty, signed by Colombia and Nicaragua in Managua, Nicaragua, on March 24, 1928. Nicaragua contends that this treaty lacks the legal validity for Colombia’s claim of title to the Archipelago of San Andreas. Nicaragua argues that, by asserting title over those islands and keys, Colombia also asserts sovereignty over a large area of the Caribbean Sea appertaining to Nicaragua. Nicaragua contends that this illegal delimitation deprives it of continental shelf, exclusive economic zone and more that 50,000 square kilometers of maritime spaces appertaining to Nicaragua. Nicaragua argues that this illegal claim of title has seriously impacted upon the Nicaraguan people living on the Caribbean coast, as vessels licenced by Nicaragua have been intercepted and captured by Colombian patrols as close as 70 miles off the coast of Nicaragua. Nicaragua seeks remedies from Colombia for these violations of international law.
In closing their arguments before the Court, Nicaragua concluded by requesting that the Court adjudge and declare that (1) the Republic of Nicaragua has sovereignty over all maritime features off her Caribbean coast not proven to be part of the ‘San Andres Archipelago’; (2) if the Court finds that features of the bank of the Quitaseuno qualify as islands under international law, then Nicaragua has sovereignty over them; (3) that a continental shelf is the appropriate form of delimitation, and that the overlapping entitlements to a continental shelf should be divided in equal parts between the parties; (4) that the islands of San Andres and Providencia be enclaved and accorded a maritime entitlement of 12 nautical miles and (5) the equitable solution for any of the cays under dispute found to be Colombian is a maritime boundary drawn 3-nautical miles around them. Nicaragua also requested the Court to adjudge and declare that Colombia is not acting in accordance with her obligations under international law due to her hindering Nicaragua from accessing and disposing of some of her natural resources.
Colombia has asked the Court to adjudge and declare that (1) Nicaragua’s new continental shelf claim is inadmissible; (2) that Colombia has sovereignty over all the maritime features in dispute between the parties; (3) that the delimitation of the exclusive economic zone and the continental shelf between the two disputing countries is to be effected by a single maritime boundary, and (4) that Nicaragua’s final submission relating to Colombia’s violation of international law should be rejected.
The ICJ will render its Judgment in a public sitting. The date is yet to be determined.
June 10th, 2012 by Admas Habteslasie
FIFA, the international governing body for the game of football, is set to appoint the current ICC Prosecutor, Luis Moreno Ocampo, to head a newly-formed internal investigations chamber .
Following a series of damaging corruption allegations, FIFA decided in March to create a bicameral ethics committee split into distinct investigatory and adjudicatory bodies. Previously, a single-chamber ethics committee had both investigated and judged on allegations of corruption and breaches of ethics rules. A report produced by an Independent Governance Committee, led by Swiss professor Mark Pieth, had chastised the ethics committee for “a lack of proactive and systematic investigation of allegations” and investigations which were “at times insufficient and clearly unconvincing”. As well as the division of investigatory and adjudicatory functions, the report also proposed making the investigatory body more independent of FIFA and enabling it investigate past as well as future allegations of misconduct.
Ocampo, whose finishes his term as the ICC’s first Prosecutor in June 2012, is described in reports as an avid football fan. He has, in the course of his term, overseen the ICC’s first prosecution, of Thomas Lubanga Dyilo, and initated cases against, amongst others, former Ivory Coast president Laurent Gbagbo. FIFA’s executive committee is to finalise the appointment in the next few weeks.
June 8th, 2012 by Julien Maton
The International Bar Association (IBA) is currently seeking high calibre legal interns to work on its International Criminal Court (ICC) Programme in The Hague to commence 13 August 2012.
The internship provides a unique opportunity to gain experience in the evolving field of international criminal justice.
The deadline for applications is June 25 2012.
The International Bar Association (IBA)’s Human Rights Institute commenced the IBA International Criminal Court Programme in 2005.
The Programme monitors fair trial and defence related issues at the ICC and encourages the legal community to engage with the work of the Court. The IBA’s work includes thematic legal analysis of the ICC’s pre-trial and trial proceedings, and ad hoc evaluations of legal, administrative and institutional issues which could potentially affect the rights of defendants, the impartiality of proceedings and the development of international justice.
The Programme also acts as the interface between the Court and the global legal community. As such, special focus is placed on monitoring emerging issues at the Court of particular relevance to lawyers and collaborating with key partners on specific activities, such as the IBA/ICC List Counsel Campaign, to increase engagement of the legal community on ICC issues.
Programme information is disseminated through regular reports, expert discussions, workshops and other events and expert legal analysis on issues relevant to our mandate. Based at the Peace Palace in The Hague, the IBA’s ICC Programme consults and interacts with Court officials, civil society organisations, academics and international lawyers.
Click here for information on how to apply.
June 8th, 2012 by Julien Maton
Last February, the Trial Chamber of the Special Tribunal for Lebanon (STL) decided to try in absentia the four persons accused to be involved in the perpetration of the terrorist attack against the former Lebanese Prime Minister Rafik Hariri on 14 February 2005.
In a recent motion, the Defence Team of one of the accused, Assad Hassan Sabra, challenged the decision of the Trial Chamber.
Regarding Article 22 of the Statute of the Special Tribunal for Lebanon, a trial in absentia may take place in front of the Tribunal if the accused has absconded. The Trial Chamber found that Hassan Sabra had absconded. For Sabra’s Defence Team, the Chamber’s reliance on the “absconded” section of that provision was erroneous.
The Defence argues first that, as a matter of common legal usage, “absconding” refers to the situation where an accused has been brought before a Court and, subsequently, escapes or fails to reappear. The Defence adds that this interpretation is also the only one consistent with the regime applicable to individuals charged by an international(ised) tribunal such as the STL. Neither customary international law, nor the Statutes of these tribunals, provide for an obligation on the part of an accused person to surrender to an international(ised) tribunal before that court after having been validly arraigned. An accused could only be said to have legally “absconded” if, after having been brought before the Tribunal, he later evades the Tribunal’s jurisdiction. Continue reading ‘Special Tribunal for Lebanon: Defence Challenges Decision to Hold Trial in Absentia’
June 5th, 2012 by Shannon Torrens
Congo (Photo: Reuters)
The President of the International Criminal Tribunal for the Former Yugoslavia (ICTY), Judge Theodor Meron has welcomed a recent initiative launched by the United Kingdom with aspirations to construct a framework for both preventing and deterring sexual violence in conflict. The UK aims to use its Presidency of the G8, starting on January 1st 2013, to focus on a year-long diplomatic campaign on the need for stronger international action to deter and prevent sexual violence in conflict. The President of the ICTY said that “Through their jurisprudence, the ICTY and its sister Tribunal, the ICTR, have helped to ensure that treaties and conventions forbidding acts of sexual violence in wartime, which for many years existed only on paper, have become a reality. However, it is clear that courts alone cannot eradicate this problem, which is why I welcome the UK initiative to establish a dedicated team devoted to combating and preventing sexual violence in conflict”. This initiative includes the establishment of a dedicated United Kingdom team tasked with the possibility of short notice overseas deployment missions in order to gather relevant testimony and that can be used to support investigations and prosecutions of crimes of sexual violence in conflict. Continue reading ‘President of ICTY Welcomes United Kingdom Initiative to Combat Sexual Violence in Conflict’
June 4th, 2012 by Julien Maton
Justice Shireen Avis Fisher of the United States has been elected to a one-year term as Presiding Judge of the Appeals Chamber, a post which makes her President of the Special Court for Sierra Leone. She succeeds Justice Jon Kamanda of Sierra Leone, who has served as President since 2009.
Prior to her appointment to the Special Court in May 2009, she was an International Judge of the War Crimes Chamber in the Court of Bosnia and Herzegovina from 2005 to 2008 and then a Commissioner on the Kosovo Independent Judicial and Prosecutorial Commission.
During her time at the Bosnia War Crimes Chamber, Justice Fisher developed the court rules for victim and witness judicial protection measures. Justice Fisher also established the Court of Bosnia and Herzegovina Advanced Judicial Education Program.
Justice Fisher began her legal career as a Public Defender in Vermont, focusing on juvenile justice cases, and founded her own litigation law firm. In 1986, she was appointed a Superior Court Judge in Vermont, becoming the second woman to join the Vermont judiciary.
Justice Fisher received her Juris Doctor from the Columbus School of Law, Catholic University of America, in 1976 and an LLM in International Human Rights Law from University College London in 2001.
She has written and lectured extensively on public and private international law in the United States, Europe and Africa.
June 1st, 2012 by Shannon Torrens
Controversial and outspoken figure Šešelj, a politician and lawyer, was the founder and President of the Serb Radical Party and is currently standing trial at the ICTY for alleged war crimes committed in Bosnia and Herzegovina, Croatia and Vojvodina, Serbia between 1991 and 1994. His contempt proceedings surround his failure to remove confidential information from his personal website which is allegedly in violation of orders made by the Tribunal. Of particular importance to the allegations is information said to have been published by Seselj on a website, including four books he authored and six confidential filings he submitted as part of his main trial and two previous trials that were held for contempt of court.
These books and filings allegedly reveal protected information about a number of protected witnesses who testified in Šešelj’s main trial for war crimes held before the ICTY. In Šešelj’s main case, Prosecutors have asked for a twenty eight year sentence for recruiting and inciting paramilitary groups in the Balkans during the wars in the Former Yugoslavia, which is based on an 11 count indictment of allegations of war crimes and crimes against humanity. As was mentioned on this blog, the trial against Mr Šešelj initially commenced on 27 November 2006 in the absence of the accused, who had been on a hunger strike for 26 days. Closing arguments were held in March 2012.
June 1st, 2012 by Raphaelle Rafin
2012 is a year of reforms for regional human rights courts. Earlier this year, the Council of Europe adopted the Brighton Declaration reforming the European Court of Human Rights, while the Organization of American States started a process for strengthening the Inter-American Human Rights System. Recently, the African Union (AU) took a further step in developing its regional legal bodies.
Ministers of Justice and Attorneys General of the AU Members States gathered in May for their annual meeting of legal matters in Addis Ababa. The purpose of this meeting was to expand the jurisdiction of the African Court of Justice and Human and Peoples’ Rights over international crimes such as genocide, crimes against humanity and war crimes as well as trafficking in hazardous wastes, illegal exploitation of natural resources and corruption. The meeting was concluded by the adoption of the Draft Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights.
The Draft Protocol was designed for the African Court of Justice and Human Rights (“the Merged Court”), which was initiated under the 2008 Protocol to the African Charter on the Establishment of the African Court of Justice and Human Rights merging the Court of Human Rights and the Court of Justice into a single court. As of today, the political will to establish the Merged Court had been lacking and only three States have become party to the 2008 Protocol.
The Draft Protocol is to be examined for adoption by the next AU Assembly to be held in July, in Malawi. The Protocol would confer upon the to-be-established African Court of Justice and Human Rights the jurisdiction to convict and sentence individuals for international crimes, adding thereof a third-section along with the general affairs and the human rights sections of the Merged Court. If adopted, the Protocol would establish an unprecedented legal body in international law, with jurisdiction over inter-State affairs, human rights violations and individual criminal responsibility.