Archive for July, 2012
July 31st, 2012 by Julien Maton
The Trial Chamber of the Special Tribunal for Lebanon (STL) confirmed the Tribunal’s jurisdiction to try those accused of committing the 14 February 2005 attack against former Lebanese Prime Minister Rafic Hariri and connected cases, in a decision published yesterday.
The Trial Chamber dismissed all the motions of the defence counsel, who argued that the Tribunal was set up illegally, violates Lebanese sovereignty, has selective jurisdiction and does not guarantee the accused a right to fair trial.
The Trial Chamber’s decision may be appealed.
The challenge to the Tribunal’s jurisdiction is a preliminary motion that must be dealt with before trial begins. The Pre-Trial Judge recently set 25 March 2013 as the tentative date for the start of trial. The defence counsel in the Ayyash and others case filed motions in early May challenging the legality and jurisdiction of the STL. The Trial Chamber later held a hearing on 13 and 14 June to hear oral arguments from the Prosecution, the defence counsel and the legal representatives for victims. Continue reading ‘STL Trial Chamber Rules on Jurisdiction’
July 25th, 2012 by Jessica Peake
Timbuktu shrines prior to their destruction (Photo: Getty)
On July 18, 2012, a delegation from the Government of Mali transmitted a letter to the Chief Prosecutor of the ICC, Fatou Bensouda, referring the “situation in Mali since January 2012″, and requesting that the OTP open an investigation to determine whether one or more persons should be charged for crimes.
The situation relates to violence that began in Mail around January 17, 2012, characterized by alleged killings, abductions, rapes and conscription of children. The OTP ICC has been monitoring the situation since then and Chief Prosecutor Fatou Bensouda has urged the ICC community of actors to take action. Specifically, on July 1, Ms. Bensouda stressed that “the deliberate destruction of the shrines of Muslim saints in the city of Timbuktu” may constitute a war crime under Article 8 of the Rome Statute.
The Government of Mali submitted this request as a State Party to the ICC under Article 14 of the Rome Statute, along with accompanying documentation supporting the referral, and stated that the Malian courts are unable to prosecute or try the alleged perpetrators. The OTP will now conduct a preliminary examination to determine whether there is a reasonable basis to proceed with an investigation, in accordance with Article 53(1) of the Rome Statute.
July 24th, 2012 by Jessica Peake
The Pre-Trial Judge of the Special Tribunal for Lebanon has issued an order scheduling March 25, 2013 as the provisional date for the start of the Ayyash et al case.
The Rules of Procedure and Evidence of the Tribunal require the Pre-Trial Judge to set a tentative date, in consultation with the other main actors (the Prosecution, Defence, the Trial Chamber Presiding Judge, the Registrar and the President of the Tribunal). This date is subject to change pending further developments and filings in the case, but it is an “important judicial step on the road to trial” and provides the parties with a concrete goal in their trial preparations.
The case of Ayyash et al concerns the attack on the former Lebanese Prime Minister Rafiq Hariri and others on February 14, 2005, and will be the first proceedings heard by the Special Tribunal. The case is currently proceeding in absentia against four accused, Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi, Assad Hassan Sabra.
July 22nd, 2012 by Anna Bonini
by Philippa Webb
On Friday 21 July 2012, the ICJ issued its Judgment in the case brought by Belgium against Senegal on ‘Questions relating to the Obligation to Prosecute or Extradite’.
Belgium had instituted proceedings against Senegal to compel compliance with Senegal’s obligation to prosecute Mr. Hissène Habré, former President of the Republic of Chad, or to extradite him to Belgium for the purposes of criminal proceedings. Jurisdiction was based on the UN Convention against Torture (CAT).
There are several fascinating aspects of this Judgment, including the ICJ’s finding that Belgium, as a State party to the CAT, has standing to invoke the responsibility of Senegal for alleged breaches of its obligations under the Convention; the relevance (or not) of pronouncements regarding Hissène Habré by the UN CAT Committee, the African Union, and the ECOWAS Court of Justice; the ICJ’s recognition of the prohibition on torture as a jus cogens norm, and so on.
However, this post will focus on the ICJ’s findings on the temporal dimensions of obligations under CAT, an area that has not been previously explored in detail and is of relevance to all States Parties to CAT. The clear message is: delays will not be tolerated.
As regards the obligation in Article 5(2) of CAT to establish universal jurisdiction over the crime of torture, the Court observed that Senegal had not adopted the necessary legislation until 2007. It had become party to CAT in 1987. There is no express temporal requirement in Article 5(2) of CAT, but the ICJ observed that Senegal’s delay necessarily affected its compliance with other obligations (para 77). This should be taken as a warning to the numerous States parties that have not adopted national implementing legislation under CAT. It also sends an indirect message to the 121 ICC States Parties, less than half of which have implemented the Rome Statute in their domestic jurisdictions.
The Court then turned to Article 6(2), which provides that the State in whose territory a person alleged to have committed torture is present ‘shall immediately make a preliminary inquiry into the facts’. The temporal requirement is clear, and the Court interpreted it literally. The ICJ recognized that a State has a ‘choice of means’ for conducting the inquiry, but ‘steps must be taken as soon as the suspect is identified in the territory of the State’ (para 86). For Senegal, the establishment of the facts in Habré’s case became imperative since at least 2000, when a complaint was filed against him.
The most complicated temporal issues arose with respect to Article 7(1) of CAT, which provides for the obligation to prosecute (if the State does not extradite the person alleged to have committed torture). The Convention is silent as to a temporal requirement. CAT had entered into force for Senegal on 26 June 1987 and for Belgium on 25 June 1999. The ICJ held that the prohibition on torture is part of customary international law and has the status of jus cogens, but there is nothing in the CAT that reveals an intention to require a State party to prosecute acts that occurred before entry into force of the Convention for that State (para 100). The Court therefore held that Senegal’s obligation to prosecute under Article 7(1) did not apply to acts before 26 June 1987 (though there was nothing to prevent Senegal instituting proceedings for acts committed before that date) (para 102). As for Belgium, the Court considered that it had been entitled from 25 July 1999 to request the Court to rule on Senegal’s compliance with its obligation to prosecute (para 104). There is thus a 12-year gap between the existence of Senegal’s obligation to prosecute and Belgium’s right to engage Senegal’s responsibility for the failure to fulfill that obligation. In the event, Belgium had only invoked Senegal’s responsibility for conduct starting in 2000.
Importantly, the ICJ dismissed Senegal’s excuses for its delay in submitting Habré’s case for prosecution based on financial difficulties (para 112), the decision of the ECOWAS Court of Justice (para 111), the absence of relevant legislation, and its courts’ findings of lack of jurisdiction (para 113). Although Article 7(1) does not specify a time frame, the ICJ held the obligation to prosecute must be ‘undertaken without delay’ (para 115).
The Judgment in Belgium v Senegal provides important guidance on the implementation of CAT obligations. Procrastination and diversion will not be accepted. The ICJ ordered Senegal to take the necessary measures to submit the case to its competent authorities for prosecution ‘without further delay’ (para 121).
July 22nd, 2012 by Jessica Peake
Last Friday, July 20, 2012, the International Court of Justice delivered its Judgment in the case concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal).
The Court unanimously held that “the Republic of Senegal must, without further delay, submit the case of Mr. Hissene Habre to its competent authorities for the purpose of prosecution, if it does not extradite him.”
Mr. Hissene Habre was the President of the Republic of Chad between June 1982 and 1990. It is alleged that during his time in power, large-scale violations of human rights were committed, and he is accused of being responsible for thousands of killings and systematic torture. After Mr. Habre was overthrown by Idriss Deby on December 1, 1990, he sought, and was granted, political asylum from the Senegalese Government and has remained there ever since.
Since January 2000 several proceedings have been launched before both Senegalese and Belgian courts by nationals of Chad, persons of dual Belgian-Chadian nationality, Belgian nationals of Chadian origin and an association of victims, alleging gross violations of human rights and breaches of the Convention Against Torture. On September 19, 2005, the Belgian investigating judge issued an international warrant in abstentia for the arrest of Mr. Habre, indicting him as the perpetrator or co-perpetrator of serious violations of international humanitarian law, torture, genocide, crimes against humanity and war crimes. Belgium requested the extradition of Mr. Habre from Senegal, supported by an Interpol ‘red notice’, which has been followed by three more extradition requests in March 2011, September 2011 and January 2012.
On February 19, 2009, Belgium instituted proceedings against Senegal before the ICJ alleging that Senegal had failed to uphold its obligations under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and customary international law to prosecute Mr. Habre for crimes of torture and crimes against humanity. During the oral proceedings, Belgium submitted that Senegal had breached its international obligations by failing to incorporate provisions into Senegalese domestic law which would enable the Senegelese judicial authorities to exercise universal jurisdiction in accordance with Article 5(2) of the Convention Against Torture. Belgium also alleged that Senegal was obliged under international law to prosecute or extradite Mr. Habre for criminal proceedings for those acts characterized as torture, war crimes, crimes against humanity and genocide under Article 6(2) and 7(1) of the Convention Against Torture, and that their failure to do so was a breach of international law. Belgium requested that Senegal cease its wrongful acts either by trying Mr. Habre within Senegal or by extraditing him to Belgium to face trial there.
Senegal argued, firstly that there was no dispute to answer and the court lacked jurisdiction, and alternatively, that Senegal was not in breach of its international obligations.
In its judgment, the International Court of Justice found that it did have jurisdiction to entertain the dispute concerning the interpretation and application of Article 6(2) and 7(1) of the Convention against Torture, but that it did not have jurisdiction to entertain claims relating to Senegal’s alleged breaches of customary international law.
With regard to the specifics of the case, the Court found, by fourteen votes to two, that because Senegal had failed to immediately make a preliminary inquiry into the facts relating to crimes allegedly committed by Mr. Habre, it had breached its obligation under Article 6(2) of the Convention against Torture, and that by failing to submit the case to competent authorities for the purpose of prosecution it had breached its obligations under Article 7(1) of the Convention against Torture. The Court held that “In failing to comply with its obligations under those provisions, Senegal has engaged its international responsibility. Consequently, Senegal is required to cease this continuing wrongful act…[and] must take, without further delay, the necessary measures to submit the case to is competent authorities for the purpose of prosecution, if it does not extradite Mr. Habre.”
The full text of the judgment can be read here.
July 17th, 2012 by Jessica Peake
On Friday, July 13, Pre-trial Chamber II of the International Criminal Court issued two arrest warrants for individuals arising out of the Situation in the Democratic Republic of the Congo.
The first warrant was issued for Sylvestre Mudacumura. Based on evidence presented by the Prosecutor, the Pre-Trial Chamber found that there are reasonable grounds to believe that Mr Mudacumura is responsible for nine counts of war crimes arising out of the conflict in the Kivus in the Democratic Republic of Congo (DRC). Mr. Mudacumura is suspected of being individually criminally responsible for war crimes including attacking civilians, murder, mutilation, cruel treatment, rape, torture, destruction of property, pillaging and outrages against personal dignity.
The Pre-trial Chamber also issued a second warrant for Bosco Ntaganda, who is suspected of committing war crimes and/or crimes against humanity in the context of the conflict in Ituri, DRC, between 1 September 2002 to end of September 2003. The Pre-trial Chamber considered that, based on the evidence provided by the Prosecutor, there are reasonable grounds to believe that Mr. Ntaganda is individually criminally responsible for crimes including the crimes against humanity of murder, rape and sexual slavery, and persecution, and four counts of war crimes consisting of murder, attacks against the civilian population, rape and sexual slavery, and pillaging.
Bosco Ntaganda’s first warrant was issued by the Pre-trial Chamber on August 22, 2006, for three counts of war crimes, consisting of enlistment of children uder the age of 15, conscription of children under the age of 15, and using children under the age of 15 to participate actively in hostilities.
In the case of both men, the Chamber considered that their arrest is necessary to ensure that they will appear before the judges and will not obstruct the investigation. The warrants are also intended to prevent them from continuing with the commission of a crime within the ICC’s jurisdiction.
July 16th, 2012 by Julien Maton
Ratko Mladic (Photo: AP/Martin Meissner)
Last Thursday, the trial of former Bosnian Serb army chief Ratko Mladic, has been suspended after Mladic felt unwell. The 70-year-old was taken to hospital as a precautionary measure, though his lawyer told later the same day that his client was already feeling better.
The health of Mladic has been an issue at The Hague since proceedings began, and the scale of the case has been cut back as a result. The Court is anxious that he should not die before the end of the trial.
Last week, the Prosecution’s first witness, a 34-year-old Bosnian Muslim called Elvedin Pasic, held back tears as he described fleeing his village as a teenager, how he was captured by Bosnian Serb soldiers in November 1992 and how he survived a massacre that killed 150 people.
Mladic faces charges relating to the July 1995 Srebrenica massacre, during which Bosnian Serb troops slaughtered nearly 8,000 Muslim men and adolescents.
He denies all the charges, but could face life in prison if convicted.
His trial resumed this Monday.
July 16th, 2012 by Jessica Peake
The Trust Fund for Victims (TFV) was established by the Assembly of States Parties under Article 79 of the Rome Statute of the International Criminal Court. It is the first of its kind in the global movement to end impunity and promote justice.
The TFV fulfills two mandates for victims of crimes under the jurisdiction of the ICC. First, it implements Court-ordered reparations awards against a convicted person, when directed by the Court to do so. Second, the TFV administers general assistance to victims of crimes under the ICC’s jurisdiction, using voluntary contributions from donors. This general assistance can take the form of physical rehabilitation, material support and/or psychological rehabilitation. The general assistance is not limited to victims participating in proceedings, and can be implemented before the conclusion of the trial, as long as it will not affect the fairness of the trial.
On July 9, UK Foreign Secretary William Hague announced that the UK would make a second donation of half a million British Pounds to the ICC Trust Fund for Victims (the UK also donated 500,000 in 2011). William Hague called the TFV a “ground making mechanism to help victims rebuild their lives”, and Elisabeth Rehn, Chair of the Board of Directors of the TFV, highlighted that this donation would be of “crucial importance to continue [their] work in DRC and Uganda, providing medical and psychological services to individual victims, as well as supporting reconciliation processes in and amongst victimized communities.” These new monies will also help the TFC to “expand their scope of action to other ICC situations, such as Kenya and Cote d’Ivoire, as well as to implement Court-ordered reparations awards.”
July 13th, 2012 by Anna Bonini
The Library of the University of Virginia School of Law is in the process of giving over 30,000 documents from the Military Tribunal for the Far East a new, digital format. This will allow the preservation of these crucial historical records, and make them more easily accessible and better organized.
The extensive collection, which includes legal filings and evidence, as well as letters, comes from an alumnus of the law school, who was assistant chief prosecutor in the trial.
The International Military Tribunal for the Far East (IMTFE), also known as the Tokyo War Crimes Tribunal, was established in 1946 to try top Japanese figures involved in the commission of war crimes during World War II. The trials before the Tribunal lasted for two and a half years and resulted in 25 convictions. Seven of the accused were sentenced to death.
July 13th, 2012 by Jessica Peake
Trial Chamber V of the ICC has announced that the two Kenyan cases will open in April 2013. On July 9, the Trial Chamber issued scheduling orders setting dates for the opening of the trials, and established a time table of procedural steps required prior to that opening to ensure the fairness of the proceedings.
The Prosecutor v William Samoei Ruto and Joshua Arap Sang is set to open on April 10, 2013, with The Prosecutor v Francis Kirimi Muthaura and Uhuru Muigai Kenyatta beginning the following day on April 11, 2013.
William Samoei Ruto is the Former Minister of Higher Education, Science and Technology in the Republic of Kenya, and faces charges as a co-perpatrator for the crimes against humanity of murder, deportation or forcible transfer of population and persecution. Joshua Arap Sang is the Head of Operations at Kass FM in Nairobi, and stands accused of having contributed to the commissions of the crimes against humanity of murder, deportation or forcible transfer and persecution. Pre-trial Chamber II found that there was no substantial grounds to believe that Mr Sang was an indirect co-perpetrator, as his contribution to those crimes was not essential, so he is not being tried on that basis.
Francis Kirimi Muthaura is the Former Head of the Public Service and Secretary to the Cabinet of the Republic of Kenya, while Uhuru Muigai Kenyatta is Deputy Prime Minister and Former Minister for Finance of the Republic of Kenya. Both stand accused, as indirect co-perpatrators, or the crimes against humanity of murder, deportation or forcible transfer, rape, persecution and other inhumane acts.
July 12th, 2012 by Jessica Peake
On Friday, July 6, 2012, the International Criminal Court and Assembly of State Parties called on other parties to join in celebrations of July 17, International Criminal Justice Day. Flags were raised outside the ICC, and speeches were given by the Ambassador of Luxembourg, H.E. Mr Jean-Marc Hoscheit, representing the State Parties to the Rome Statute, and the ICC President, Judge Sang-Hyun Song. Both encouraged actors to commemorate the day, and to reaffirm their commitment to bringing an end to atrocious crimes throughout the world, and to bring justice to victims.
July 17 was officially declared ’International Criminal Justice Day’ by the ICC States Parties in 2010, and marks the historic adoption of the Rome Statute on 17 July 1998. The Day is intended to celebrate the achievements in the field of international criminal justice and reflect on the plight of the countless innocent civilians, millions of children, women and men who still continue to be the victims of unimaginable atrocities in different parts of the world, as well as to call people to act and declare their support for the international criminal justice system.
July 11th, 2012 by Anna Bonini
On 6 July 2012, Italy’s highest court, the Corte di Cassazione, issued its final ruling on what has been described by Amnesty International as “the most serious suspension of democratic rights in a Western Country since the Second World War”. This landmark judgment concerned events surrounding the G8 summit hosted by Italy over ten years ago, and the ensuing cover-up by high-ranking members of the Italian police.
In late July 2001, leaders of the world’s largest economies met in the Ligurian town of Genoa, heavily locked down due to fear of terrorist attacks. Over 200,000 people took part in anti-globalization demonstrations on the streets of Genoa in the days immediately preceding and during the summit. Even though the large majority protested peacefully, some demonstrations degenerated. The Italian police forces reacted with unheard-of violence. On 20 July, a young protester, Carlo Giuliani, was fatally shot by a 21-year-old carabinieri officer and, by the end of the summit, several hundred people, including demonstrators, journalists and police officers, had been seriously injured in street clashes.
The recent Cassation Court Judgment focuses, however, only on events that occurred in the Armando Diaz school in the early hours of 22 July 2001. Over 300 police officers raided the school, which was primarily used as a dormitory for demonstrators and a media centre during the summit. Protesters and journalists were subjected to deliberate and unjustified beatings, resulting in severe injuries. Many were arrested and transferred to the nearby Bolzaneto temporary detention facility, where they were subject to further ill-treatment at the hands of the police. British activist Mark Covell was left in a coma with eight broken ribs and a shredded lung.
Police officials initially stated that the raid had come in response to attacks on security forces by protestors, and that weapons were found at the Armando Diaz school. The Cassation judgment rejected this version of events. Rather, demonstrators, many of whom were sleeping when the raid began, had not reacted violently, but the police had tried to incriminate them by planting firebombs and staging a knife attack.
The recent judgment is particularly significant in that it concludes definitively that the highest levels of the Italian police force were directly involved in the attempted cover-up that followed the events at the Diaz school. Fifteen senior officers, including figures such as the current head of the anti-crime department and the chief of the Central Operative Service, were convicted for falsifying evidence. Due to an earlier law designed to reduce inmate numbers, none of the officers are likely to spend any time in prison. However, the conviction means they automatically will be suspended from duty for five years, effectively beheading the Italian police force.
Even though counsel for the victims and the public prosecutor expressed satisfaction, many were critical of the Cassation Court’s ruling. It was too little, for suspension from duty is likely to remain the only punishment for the convicted officers. It was also too late, as it came over 11 years after the Genoa events, allowing other officers charged with inflicting GBH and libel to escape liability for the statute of limitations timed out all convictions. Impunity could have been avoided had Italy implemented in its domestic system a provision for the criminalization of torture as required by Article 4 of the Convention Against Torture, which it ratified in 1989, and complied with current international law and practice excluding the applicability of a limitation period to cases of torture. It is hoped that the Cassation Court judgment will at least revive the debate within Italian civil society and political circles as to the importance of incorporating into domestic law the crime of torture as defined in Article 1 of the Convention.
For further details of the Cassation judgement (in Italian), click here.
July 10th, 2012 by Jessica Peake
Today the International Criminal Court handed down its first sentencing decision in relation to Thomas Lubanga Dyilo, sentencing him to 14 years imprisonment. Mr. Lubanga was convicted on March 14, 2012 of “conscripting and enlisting children under the age of 15 and using them to participate in hostilities in the Ituri region in the Democratic Republic of the Congo, from September 1, 2002, to August 13, 2003″. Mr. Lubanga was commander-in-chief of the Patriotic Forces for the Liberation of Congo (FPLC) at the time.
Chief Prosecutor, Luis Moreno-Ocampo, had requested a “very severe sentence” for Mr. Lubanga in recognition of the gravity of the crime, highlighting that “in a domestic prosecution each separate act committed against a child would could for serious punishment [and] the International Criminal Court should not be more lenient.”
In delivering the sentence, the Presiding Judge, Adrian Fulford, underscored the seriousness of the crimes and the extent of the damage caused to the child victims and their families. He also recognised “the nature of the unlawful behavior and the means employed to execute the crime; the free of participation of [Mr. Lubanga]; the degree of intent; the circumstances of manner, time and location; and the age, education, social and economic condition of the convicted person.” However, the court has also weighed several mitigating factors in determining the sentence, such as Mr. Lubanga’s “notable cooperation with the Court and his respectful attitude throughout the proceedings.” Judge Elizabeth Odio Benito has written a separate and dissenting opinion, disagreeing with the majority regarding mitigation.
The full text of the decision, including Judge Elizabeth Odio Benito’s dissenting opinion, can be found here.
July 9th, 2012 by Anna Bonini
On 9 July, Elvedin Pasic became the first witness to testify in the ICTY case against Ratko Mladic. Mr Pasic, now 34, was a Bosniak teenager from Hvracani during the war.
Mr Pasic (Photo: AFP)
He recounted how he was captured by Bosnian Serb soldiers in November 1992, and that after being held in a makeshift detention centre he survived a massacre that left around 150 people dead in the Bosnian village of Grabovica, including his father. Mr Pasic went on to describe how his family were forced to flee Hvracani under heavy fire. At their return, a few months later, the stench of burnt and rotting bodies was unbearable, as elderly neighbors had been burnt in their homes.
General Mladic is charged with 11 counts of war crimes and crimes against humanity. Later this week, the court is due to hear from the retired British general, Sir Richard Dannatt, former deputy commander of Nato’s force in Bosnia. The Mladic defence team is likely to seek to have his expert evidence thrown out. A survivor of the 1995 Srebrenica massacre is also expected to testify against Mr Mladic.
July 9th, 2012 by Anna Bonini
by Christian Axboe Nielsen
Although the extent to which history and historians should be present in the international courtroom is a topic of considerable scholarly debate, there can be no doubt that history figures prominently in international criminal justice. Much has been written in recent years on the role of history at international courts and tribunals – most recently Richard Wilson’s Writing History in International Criminal Trials.
Yet amidst all the discussion of the intersection between international criminal justice and the writing of history, relatively little attention has been devoted to to the internal histories of these institutions. This is, I believe, an unfortunate omission, and one which deserves to be remedied. Why not, therefore, establish an “office of the historian” at the International Criminal Court – and perhaps also at ad hoc international criminal courts and tribunals?
The idea of having an official historian embedded within an institution is not a novel one. Plenty of organizations and institutions have such offices, particularly in the United States. The US Department of State has one of the better known official historians – replete with its own website. This office produces the Foreign Relations of the United States series, a well-regarded resource used by historians all over the world. The US Army produced official histories of campaigns in the Second World War, the Korean War and the Vietnam War. (And already in 1949, Telford Taylor, one of the godfathers of international criminal justice, produced a lengthy “Final Report to the Secretary of the Army” on the Nuremberg war crimes trials.) Even the CIA has produced classified internal histories that are sometimes made available in declassified form – and the CIA also has its own in-house journal Studies in Intelligence. In the UK, the Foreign and Commonwealth Office has in-house historians, and the super-secretive MI5 granted access to Cambridge history professor Christopher Andrew to write an authorized history of the domestic intelligence agency.
What do embedded historians do? In the case of the US Department of State, “Historians in the Office of the Historian collect, arrange, and annotate the principal documents comprising the record of American foreign policy.” Separated from the daily grind of the institution by a special role, but also given mandated access to confidential documents that will remain inaccessible to the general public for years, if not decades, official historians work to preserve the history of the institution. This includes the structural history of the institution as well as its operational history. This preserves institutional knowledge, creates a repository of seminal documents and also creates the possibility of studies that can determine important lessons from both successful and failed operations, programs and trials.
US Attorney General M. B. Mukasey donates copies of trial transcripts and decisions created in connection with the Office of Special Investigations (OSI) to the US Holocaust Memorial Museum in 2008.
An outstanding example of an internal history produced at a judicial institution is the official history of the Office of Special Investigations. The OSI was established within the US Department of Justice in 1979 to centralize litigation against alleged Nazi war criminals who had come to the United States after the Second World War. Judy Feigin, the author of the history, “The Office of Special Investigations: Striving for Accountability in the Aftermath of the Holocaust,” wrote that “this report was not written simply to recount a series of unrelated but interesting undertakings. It is designed to serve as a teaching and research tool for historians, the media, academics, policy makers and the general public.” As such, the official history did much more than merely recount the history of the litigation of the office. It also dealt with the political, moral and ethical questions that prompted the establishment of the OSI and which recurred throughout its work. Feigin correctly observed that the crimes handled by the OSI were not limited to the Second World War, and that future lawyers, politicians and academics could therefore draw important lessons from the history of the OSI.
Why have an office of the historian at the ICC? First, for internal purposes. An internal office of the historian would be able collate confidential documentation, and analyze and reflect upon the establishment and operations of the ICC in a way that could not be permitted for outsiders. (Privileged access was in some instances granted by the ICTY to outsiders in the past, resulting in John Hagan’s very valuable book, Justice in the Balkans.) In the first instance, this might have to be restricted to being an exercise of the Office of the Prosecutor (OTP), or separate Registry, Chambers and OTP exercises, given the requisite internal walls that exist at the Court. In addition to the institutional history, the most useful output of an office of the historian would be case studies of completed investigations or cases. It is striking, for example, that in the considerable literature that exists in legal journals on the work of the ICC, there are virtually no studies available of the investigations of the Court. This vastly important area risks remaining an eternal black box unless some steps are taken to produce internal histories.
The second reason for having an office of the historian at the ICC is external. As Feigin noted, there is much to be discussed and learned from both the successful and unsuccessful operations of a judicial body. Yet unlike the OSI or its equivalent in Germany, the Zentrale Stelle der Landesjustizverwaltungen zur Aufklärung nationalsozialistischer Verbrechen (Central Office of the State Justice Administrations for the Investigation of National Socialist Crimes), the ICC is not subject to any jurisdiction that can compel access to outside researchers in the long-term. It is therefore crucial that the Court itself have an internal office that can foster and advocate the writing and preservation of its own history. The same office, together in consultation with the senior management of the ICC, could subsequently publish the full or redacted versions of these reports, thus providing a valuable contribution to the public understanding of the Court.
It goes without saying that employees of an office of the historian at the ICC would have to operate with discretion, integrity and confidentiality. The employees of the office, who would be of high academic calibre, should be able to participate with management approval at relevant international conferences on the work of the Court. This would help to ensure that they remain active members of the academy and militate against the Hague version of Stockholm syndrome.
However, the internal histories these historians produce would for the immediate future be just that – internal products for the consumption and use of others at the Court. Confidentiality about sensitive operational and legal information, as well as the risk of litigation, absolutely necessitates this. Yet this does not mean that the office of the historian should be muzzled or otherwise follow the line. Internal histories would be useless if the office of the historian did not have a robust mandate guaranteeing it a strong measure of independence in its queries as well as broad access to internal documentation upon request. There would hence have to exist a solemn covenant between the office of the historian and the ICC. The embedded historians would submit to defer the pleasure of publication – and perhaps eventually publish redacted versions of certain publications. On the other hand, the Court would have to guarantee on a suitable timeframe for the publication of most, if not all, publications – again some perhaps in a redacted form. This last point deserves careful attention given the tug-of-war that occurred with respect to the aforementioned OSI report.
No one is claiming that institutions that have produce official histories necessarily learn from their mistakes. And embedded historians labour under the risk of subjectivity. Yet the same could be said for unofficial, “external” histories. An office of the historian at the ICC would be an important step towards preserving the work of the Court for future generations.
With the departure of Luis Moreno Ocampo and the completion of its first trial, the ICC has closed the first, turbulent chapter of its history. The Court is in many ways still in its formative years, but also has enough accumulated experiences to give historians plenty to examine. This would be an ideal time to consider seriously the creation of an office of the historian at the ICC. This office would, in the long run, contribute to making the institution, and hence international criminal justice, more transparent and accountable – the subject of this author’s next blog contribution.
Christian Axboe Nielsen is Associate Professor of Southeast European Studies at Aarhus University in Denmark. He has worked as an analyst for the ICC and for the ICTY, and has testified as an expert witness in several ICTY cases. He has contributed to the forthcoming edited volume The Milošević Trial – An Autopsy (Oxford University Press).
July 8th, 2012 by Julien Maton
Jorge Videla (left) and Reynaldo Bignone listen to the verdict (Photo: Enrique Marcarian / Reuters)
Two former leaders during Argentina’s military rule (1976-1983), Reynaldo Bignone and Jorge Videla, have been found guilty of overseeing the systematic theft of babies from political prisoners.
At least 400 babies are thought to have been taken from their parents while they were held in detention centres.
They have been respectively sentenced to 15 and 50 years in prison, even if they were both already given life sentences for torture and death of political opponents. Victims’ groups nevertheless welcomed the latest verdicts as a confirmation of the defendants’ guilt for what many consider as the most heinous crimes committed under military rule.
During the military rule some 30,000 people were killed or made to disappear by the armed forces in their campaign against opposition activists and left-wing guerrillas.
July 8th, 2012 by Julien Maton
Angelina Jolie Directing "In the Land of Blood and Honey"
Angelina Jolie, whose directorial debut “In the Land of Blood and Honey” tackled the 1992-95 Bosnian war, attended the 18th Sarajevo Film Festival on Saturday and was honored by the Bosnian capital, receiving the Citizen of Sarajevo Award. This movie tells the story of the war through the relationship between a Bosnian Serb man and a Bosnian Muslim woman.
Jolie spoke of her deep connection to the country: “The time I spent and the people I met in Bosnia have changed me forever. I can’t tell you how much it means to me to be named an honorary citizen of Sarajevo, a city so dear to my heart.”
This film features stark scenes of rape, executions and other war crimes. Some Bosnian Serbs want the film to be banned, saying it portrayed them as villains, but others say they want the film to be shown.
The Sarajevo film festival began during the Bosnian War and has gone on to become one of the largest in Europe.
July 8th, 2012 by Julien Maton
Nobel peace laureate Tawakkul Karman on her way to present ICC Prosecutor with a file on crimes she said were committed by the regime of Yemen President Ali Abdullah Saleh.(AP Photo/Mike Corder)
Last November, Yemen Nobel peace laureate Tawakkul Karman traveled to The Hague to urge the International Criminal Court (ICC) Prosecutor to launch an investigation into the violent crackdown on dissent in Yemen by Ali Abdullah Saleh, the country’s president. In response, she was told the Court would first need the approval of the United Nations Security Council, which never happened, even though it was exactly the kind of case the ICC was created to investigate: Yemen’s leader was clinging to power, turning his security forces’ guns on unarmed protesters, entailing the death of hundreds of people, while many more were maimed.
In an article published yesterday in the New York Times, Lydia Polgreen points up the flaws of the International Criminal Court and the reasons why certain leaders have not yet been prosecuted.
Highlighting its failure to act against some leaders challenged by the Arab Spring, the article shows that most of the critics towards the Court concern its double standard politics, saying that justice is only reserved for outcast leaders, including an assortment of African officials from weak states.
As the Court can investigate crimes only in nations that have signed the Rome Statute, which created the Court, unless the Security Council refers a case, many authoritarian leaders can proceed with impunity, as for example in the Middle East, where few nations have signed and many have strong ties with veto-holding members of the Security Council. Bahrain and Yemen are allies of the United States, which is not a signatory to the International Criminal Court. Russia and China, neither of which is a signatory, are close to Syria’s government, and are likely to block any attempt to refer a case to the court, says Polgreen.
The author adds that debates have raged for years about whether the Court makes dictators more likely to fight to the death or whether it is an effective deterrent of war crimes. The Court has now run into another problem in Libya: the new government seems intent on prosecuting surviving members of the old leadership itself despite deep concerns about the ability to hold fair trials, as recently mentioned on this blog.
For Lydia Polgreen, the deeper question is now whether the failure to prosecute the autocrats of the Arab Spring will erode faith in the movement towards a truly universal system of international justice, as Justice has advanced and in doing so, the flaws that mark it in today’s world become much more apparent.
July 7th, 2012 by Raphaelle Rafin
Earlier this week, the European Court of Human Rights (ECtHR) issued its judgment in the case of Lutsenko v Ukraine, concerning the former Minister of the Interior of the Ukrainian Government headed by Yulia Tymoshenko and leader of the opposition party Narodna Samooborona. Mr. Lutsenko is currently detained in Kyiv and was convicted on 27 February 2012 of abuse of office and of having unlawfully arranged different work-related benefits for his driver. The Chamber hearing was held on 17 April 2012.
In his application to the ECtHR, Mr. Lutsenko complained that his arrest and detention were arbitrary and unlawful and that he was not informed about the reasons for his arrest. He also complained that his right to a fair trial was violated as he was not informed in advance about the subject of the court hearing of 27 December 2010. Mr. Lutsenko claims that the Ukrainian Government thereby violated both his right to liberty and security and his right to a fair trial.
The Court found two distinct violations of Article 5(1) of the European Convention on Human Rights, considering that Ukrainian authorities failed to explain the lawfulness of his arrest ant that the grounds on which the decision of the court ordering Mr. Lutsenko’s pre-trial detention had been based were questionable.
AP Photo/Sergei Chuzavkov
Regarding rights on arrest, the Ukrainian Government did not dispute that, at the time of his arrest, Mr. Lutsenko had not been informed of the formal reasons for his arrest. The Court concluded that the authorities had not complied with their obligations under Article 5(2). The Court also found two violations of Article 5(3), based on the refusal of the Ukrainian court to examine the lawfulness of Mr. Lutsenko’s detention and on the fact that Mr. Lutsenko had not been informed in advance of the subject of the hearing and that the necessity of his deprivation of liberty had not been examined in a satisfactory manner by the Ukrainian court. In addition, since Mr. Lutsenko’s appeal had been rejected by the appeal court without a proper reply to his arguments, the Court found a violation of Article 5(4).
An interesting feature of the case concerned the particular situation of the complainant. As a well-known opposition politician, Mr. Lutsenko had generally complained that his arrest and proceedings against him had been used to exclude him from political life and from participation in the upcoming parliamentary elections. The Court considered that the Ukrainian authorities attempted to punish Mr. Lutsenko for publicly disagreeing with accusations against him and for asserting his innocence and that the restriction on his liberty had been imposed not only on reasonable suspicion of having committed an offence, but also for other reasons. The Court concluded that there had been a breach of the limitation on use of restrictions on rights (Article 18).
Ukraine is to pay Mr. Lutsenko 15,000 euros in respect of non-pecuniary damage.
For the ECtHR press release, click here.
For the full text of the judgment, click here.
July 7th, 2012 by Julien Maton
ICC lawyer Melinda Taylor speaks to the media for the first time since her release after being held by Libyan authorities for more than three weeks. Photograph: Mike Corder/AP
Yesterday, Melinda Taylor, one of the four International Criminal Court (ICC) staff members detained for 26 days in Zintan by the Libyan authorities, gave a press conference where she declared that a fair trial cannot be granted to the son of deposed Libyan dictator Moamar Gaddafi.
The ICC has indicted Saif al-Islam Gaddafi for crimes against humanity but the Libyan authorities have insisted that he should be tried at home rather than in The Hague.
“Irrespective of any issues concerning my own personal conduct, the rights of my client, Mr Seif al-Islam, were irrevocably prejudiced during my visit to Zintan,” she said.
She added that the Libyan authorities deliberately mislead the Defence concerning whether the visit with Saif al-Islam Gaddafi would be monitored and also seized documents which were covered by legal professional privilege and ICC protective orders.
Ms Taylor said the Defence intends to place this matter before the ICC Pre-Trial Chamber in the Defence Response to Libya’s request to have the proceedings in Libya.
Saif al-Islam was arrested last November, three months after anti-government forces overran the capital, Tripoli.
The full text of Ms Taylor’s Statement is available in English, French and Arabic.
July 7th, 2012 by Jessica Peake
Trial Chamber I of the International Criminal Court (ICC) will deliver its decisions relating to reparations to victims and sentencing in the case of the The Prosecutor v Thomas Lubanga Dyilo in open court on 10 July 2012, at 9:30 a.m.
The case arose out of the situation in the Democratic Republic of the Congo, which was the first investigation of the ICC. The Office of the Prosecutor undertook extensive and close analysis of the situation in the DRC and determined that millions of civilians had died in the DRC since the 1990′s as a result of the conflict.
ICC Trial Chamber I rendered its judgment in the case on 14 March 2012, holding that Mr. Lubanga Dyilo was responsible for the war crime of conscripting and enlisting children under the age of 15 and using them to participate in hostilities.
July 4th, 2012 by Raphaelle Rafin
Last week, the European Court of Human Rights (ECtHR) issued its judgment in the case of Kurić and Others v. Slovenia,
Photo: © Dare Čekeliš, www.humanrightspoint.si
brought before the Court by the so-called “erased” people in Slovenia. The Court found there had been a violation of the right to respect for private and family life (Article 8), of the right to an effective remedy (Article 13) and of the prohibition of discrimination (Article 14).
The eight applicants complained that they had been arbitrarily deprived of their status as permanent residents after Slovenia had declared its independence in 1991. They are all former citizens of the Socialist Federal Republic of Yugoslavia (SFRY) who had their permanent residence in Slovenia. Following the declaration of independence by Slovenia in 1991, they failed to file a request for Slovenian citizenship within the prescribed time-limit. As a result, on 26 February 1992, their names were “erased” from the Slovenian Register of Permanent Residents, along with the names of about 25.000 Slovenian residents who were citizens of other former SFRY republics, and they became aliens. They have faced almost 20 years of extreme hardship and belong to a group of people known as the “erased”.
The Court found that the “erasure” and its repercussions had amounted – a fact not contested by the Government – to interference with the private or family life, or both, they had had in Slovenia at the relevant time, having built up social, cultural and economic ties in the country. The Court also held that Slovenia had breached the prohibition of discrimination since there had been a difference in treatment after independence between two groups – as former SFRY citizens were treated differently from other foreigners – which were in a similar situation in respect of residence-related matters. Citizens of the former SFRY who were residing in Slovenia had found themselves in a legal vacuum, whereas “real” aliens living in the country had been able to keep their residence permits under the Aliens Act.
Socialist Federal Republic of Yugoslavia, as of January 1991 (www.icty.org)
The Court held in particular that, despite the efforts made since 1999, the Slovenian authorities had failed to remedy comprehensively and with the requisite promptness the grave consequences for the applicants of the erasure of their names from the Slovenian Register of Permanent Residents. Given that the situation affected a large number of persons and considering the potential inflow of future cases, the Court also decided to apply the pilot-judgment procedure, holding that the Government should, within one year, set up a compensation scheme for the “erased” in Slovenia. It decided it would adjourn examination of all similar applications in the meantime.
For the full text of the judgment, click here.
For the ECtHR press release, click here.
July 4th, 2012 by Julien Maton
International Justice Tribune (IJT), a widely respected resource for global and transitional justice, will no longer be published at Radio Netherlands Worldwide (RNW).
Due to massive budgetary cuts faced by RNW last June, RNW has decided to focus on young audiences in countries where free speech is under threat.
Since its creation in 2004, IJT has been the only independent newspaper offering specialised journalistic coverage of international justice throughout the world.
As a free specialised press is essential to the main actors in the area of international justice, the IJT’s editors are seeking an imminent and sustainable solution for this non-costly project to survive in its present form.
You can help them doing so by signing their online petition and spreading the word on your blogs or other online networks.
July 2nd, 2012 by Dina Mahmoud
source: Rod @ http://creativeroots.org/2010/01/coat-of-arms-of-egypt/
In a press release dated 24 June 2012, the Egyptian State Information Serivce announced that the winner of the second round of elections is Mohamed Mursi, receving winning majority of 13,230,131 votes amounting to 51.73% of votes, whereas his rival candidate, Ahmed Shafiq, received 12,347,380 votes amounting to 48.27 %. To listen to a video recording of the announcement, click here.
In his first speech as the newly elected President, Mursi praised the military for its role during this transitional phase, and emphasised his commitment to strengthening the army. To listen to a video recording of Mursi’s first speech as President of Egypt, click here.
President Mursi began his first day of duty of the 25 June 2012 by visiting the presidential headquarters of the district of New Egypt in Cairo to meet his new staff and begin his duties as the newly elected president. Political dialogue immediately moved to discussions on the composition of the new coalition government.
Morsi was sworn in Saturday June 30 as Egypt’s first democratically elected president.
July 2nd, 2012 by Julien Maton
Australian lawyer Melinda Taylor detained in Libya after visiting Saif al-Islam Gaddafi
The four staff members from the International Criminal Court (ICC) held by a militia in Zintan, Libya, have been released.
It was announced by the court’s president, Sang-Hyun Song, during a visit to Libya.
The four, including Australian lawyer Melinda Taylor, have been held in Zintan since June 7 after travelling there to help prepare Saif al-Islam Gaddafi’s defence, the son of deceased dictator Muammar Gaddafi.
The ICC employees were arrested and accused of spying and breaching national security by carrying coded documents to their client.