Archive for August, 2012
August 28th, 2012 by Anna Bonini
Last week, Senegal and the African Union concluded an agreement on the establishment of a special tribunal to try Hissène Habré.
Mr Habré is accused of crimes against humanity, war crimes and torture, in relation to events occurred between 1982 and 1990, when he was the President of Chad. Senegal, where Mr Habré has lived since 1990, had already agreed with the African Union to bring proceedings against him in 2006, but failed to fulfill this promise. In 2009, following an application by Belgium, the ICJ declared that Senegal was under a duty to prosecute or extradite the former Chadian President.
The recent agreement, signed in Dakar by Senegalese Minister of Justice Aminata Touré and AU representative Robert Dossou, establishes four ‘Extraordinary African Chambers’ mandated to deal with Mr Habré’s case both in the first instance and at the appeal level. They will be presided by an African judge assisted by Senegalese colleagues. With a budget currently estimated in 8.6 million euros, the tribunal is expected to open its doors before the end of 2012.
August 28th, 2012 by Julien Maton
This Tuesday, French prosecutors have agreed to begin a murder inquiry into the death of Yasser Arafat.
The inquiry stems from an Al-Jazeera TV documentary broadcast early in July, in which the channel commissioned Lausanne University’s Institute of Radiation Physics to analyse Arafat’s belongings. The scientists told the channel that they had found “significant” traces of polonium-210, a radioactive element, in items including Arafat’s trademark keffiyeh.
Following the documentary, Arafat’s widow Suha and daughter Zawra lodged a complaint with French judicial authorities. Last week, Suha Arafat and the Palestinian authorities authorized the Swiss institute to travel to Ramallah to analyse his remains.
Yasser Arafat fell violently ill in October 2004 and passed away two weeks later, in a French military hospital near Paris. The medical records say he had a stroke resulting from a blood disorder. However, many Palestinians continue to believe that their former leader was poisoned by Israel because he was an obstacle to peace.
Arafat led the Palestine Liberation Organisation for 35 years and became the first president of the Palestinian Authority in 1996.
August 28th, 2012 by Anna Bonini
by the British Institute of International and Comparative Law
Date: 12 September 2012, 17:30 to 19:30
Venue: British Institute of International and Comparative Law, Charles Clore House, 17 Russell Square, London, WC1B 5JP
Chair: Dr Duncan Fairgrieve, British Institute of International and Comparative Law
Speakers: Carla Ferstman, REDRESS
Dr Conor McCarthy, Doughty Street Chambers
Additional Speaker TBC
Last March, Trial Chamber I of the International Criminal Court (ICC) found Thomas Lubanga Dyilo guilty of conscripting and enlisting children under the age of 15 years and using them in armed conflict. Mr Lubanga is the first person to be convicted for war crimes at the ICC.
On 7 August 2012, the same Trial Chamber issued a decision on applicable reparations in relation to the case against this former Congolese militia leader, the first ICC decision on reparations. In this decision, the judges went beyond the ICC Statute by underlining the need to apply reparations in a broad and flexible manner. In particular, they mentioned that symbolic, preventative or transformative types of reparations have also to be considered when appropriate.
As a result, the British Institute of International and Comparative Law is hosting a rapid-response seminar on the principles and procedures of reparations established in this recent decision. Among other issues, speakers will discuss all the possible forms of reparations that may be considered, in addition to restitution, compensation and rehabilitation. Speakers will also consider the role of victims in the international criminal law process, the collective approach to reparations, as well as the Trust Fund for Victims and its relationship with the Court.
Of relevance to those interested in international criminal law, international human rights and humanitarian law, this timely seminar will present the recent ICC decision and frame it within the wider reparations context, as well as offer food for thought with regard to the rapidly evolving issue of reparations to victims of international law violations.
For further information and to book, please visit www.biicl.org or email email@example.com
August 26th, 2012 by Julien Maton
Saif al-Islam Gaddafi, the son of former leader Colonel Muammar Gaddafi, will go on trial next month in the Libyan town of Zintan, a Libyan prosecution spokesman has said.
Announcing the trial date, the prosecutor general’s spokesman, Taha Nasser Baara, said: “A committee from the prosecutor general’s office has completed its investigation into the crimes committed by Saif al-Islam from the start of the revolution on February 15 (2011) and has prepared the charge sheet.”
Mr Baara said the charges would be “approved by the prosecutor general in the coming days and a date set for the September trial opening”.
The International Criminal Court (ICC), which has issued a warrant for crimes against humanity, said it was aware of the news but has not been contacted by Libya, and that legal proceedings on the admissibility of its own case were still pending.
Ties between Libya and the international court hit an all time low after the June arrest in Zintan of four ICC envoys accused of spying and breaching national security by carrying coded documents to their client. One of the ICC staff members, Melinda Taylor, declared last month that a fair trial cannot be granted to Muammar Gaddafi’s son.
Saif al-Islam has said he wants to be tried at the ICC in The Hague.
August 26th, 2012 by Julien Maton
In an effort to raise awareness about genocide and war crimes and the FBI’s part in helping to combat them, the FBI recently announced the launch of its Genocide War Crimes Program website. The mission of the FBI’s Genocide War Crimes Unit (GWCU)— the Bureau entity responsible for leading the charge against these kinds of horrific crimes — is to leverage law enforcement efforts to hold accountable to the rule of law perpetrators who have committed acts against humanity, including genocide, war crimes, torture, and the use of child soldiers.
GWCU uses three key strategies to meet its mission, i.e. investigating in priority human rights cases together with its domestic and international law enforcement partners, working to enhance domestic and international information collection through its 56 field offices and more than 60 overseas legal attaché offices and providing training and technical assistance to international and foreign investigative bodies upon request, as appropriate.
In addition to educating the public on its role, the website solicits information from victims and others about perpetrators of any mass atrocities that can be submitted to through tips.fbi.gov or by contacting an FBI field office or legal attaché office.
August 25th, 2012 by Julien Maton
Charles Taylor’s lawyers have announced their intention to call Judge Malick Sow to the stand during the preliminary hearings scheduled to prepare Taylor’s appeal trial before the Special Court for Sierra Leone (SCSL).
The Senegalese judge was dismissed in May for “misconduct” after attempting to voice his dissenting opinion the day the judgment was handed down, on April 26. As an alternate judge, Malick Sow did not have a vote, nor a right to dissent. He nevertheless tried to publicly state his concerns that the evidence against Charles Taylor did not reach the threshold necessary for conviction.
“My only worry is that the whole system is not consistent with all the principles we know and love and the system is not consistent with all the values of International criminal justice, and I am afraid the whole system is under grave danger of just losing all credibility”, he declared.
On July 19, Taylor’s lawyers filed a motion requesting the voluntary withdrawal or disqualification of Appeals Chamber judges from his appeals hearing. They asked for a new appeal panel composed of judges who did not participate in the decision and sanction against Judge Sow.
Former Liberian President was sentenced on May 16 to 50 years in jail for crimes against humanity and war crimes. The date for the appeal trial has not been set yet.
August 22nd, 2012 by Anna Bonini
The ECtHR Chamber examining the cases of Maktouf and Damjanovic v. Bosnia and Herzegovina (Nos. 2312/08 & 34179/08) has relinquished jurisdiction in favour of the Grand Chamber. The applicants in these cases are Mr Abduladhim Maktouf, an Iraqi, and Mr Goran Damjanović, a citizen of Bosnia and Herzegovina. Both were convicted by the Court of Bosnia and Herzegovina (the ‘State Court’) for war crimes committed at the time of the Balkans war: Mr Maktouf for helping a third party to abduct two civilians to be exchanged for members of the ARBH forces captured by the HVO and Mr Damjanović for beatings and discriminatory acts against captured Bosniacs in Sarajevo.
Their applications to the ECtHR relies in particular on Article 7 of the convention, arguing that they were not granted the benefit of the more lenient criminal law with regard to their sentence. The applicants maintain, in particularly, that they were treated differently from those who were tried for analogous war crimes before the Entity/District courts, which, as a rule, apply different legal provisions and impose on average lighter sentences. Mr Matkouf also complained of an alleged breach of Article 6(1) of the Convention, because the international members of the State Court were appointed by the High Representative for a renewable period of two years.
The Grand Chamber will hold a hearing in the cases on 12 December 2012.
August 20th, 2012 by Julien Maton
The Gotovina Defence recently challenged the authority and competence of the ICTY Appeals Chamber to re-qualify on appeal (without Prosecution appeal and without trial findings) the mode of liability relevant to the case, from JCE-liability, based on which General Gotovina was convicted, to the envisaged possibility of re-qualification as aiding and abetting or command responsibility.
According to the Gotovina Defence, the Appeals Chamber has no jurisdiction under the ICTY Statute to do so and such a course would result in a violation of the fundamental rights of General Gotovina (including his right to appeal against conviction, should a guilty finding be made; his right not to be subject to double jeopardy; his right to a reasoned opinion; prohibition of reformatio in pejus; and ultimately his right to a fair trial). The Defence application is attached.
On 15 April 2011, the Trial Chamber sentenced Ante Gotovina to 24 years. According to the judgment (Volume I – Volume II), Ante Gotovina, Commander of the Split Military District of the Croatian Army, from 9 October 1992 to March 1996, was overall operational commander of the military offensive called “Operation Storm” that aimed to reconquer the Krajina region, south of Croatia, the last pocket of resistance still held by Serbs in Croatia in 1995.
The judges held that General Gotovina contributed to the planning and preparation of Operation Storm and failed to make a serious effort to prevent and follow up on crimes reported to have been committed by his subordinates against Krajina Serbs. For the Trial Chamber, General Gotovina’s failures had an impact on the general attitude towards crimes in the Split Military District. Based on these considerations, the Chamber found that General Gotovina’s conduct amounted to a significant contribution to a joint criminal enterprise.
August 19th, 2012 by Julien Maton
by Miša Zgonec-Rozej
The Trial Chamber of the Special Tribunal for Lebanon (STL) held in its decision of 27 July 2012 that the STL had been lawfully established and that it has jurisdiction to try those accused of committing the 14th February 2005 attack against the former Lebanese Prime Minister Rafic Hariri and connected cases. The Trial Chamber rejected its competence to judicially review the Security Council’s resolution 1757 (2007) establishing the STL and reiterated Lebanon’s obligation, as a member state of the United Nations (UN), to comply with this Resolution.
The Defence challenges
Defence counsel for the four accused, who are being tried in their absence, submitted separate motions challenging the STL’s jurisdiction and the legality of the STL’s establishment, arguing that the Tribunal was set up illegally and that the Security Council exceeded its powers when it created it, that its establishment violates the sovereignty of Lebanon and is unconstitutional under Lebanese law, that it has selective jurisdiction and cannot guarantee the fair trial rights of the accused.
The Trial Chamber’s decision
The Trial Chamber found that the Defence motions were not challenges to jurisdiction but rather challenges to the legality of the STL. It held that the STL was lawfully established, having been created by the UN Security Council – a body having the power to establish a criminal tribunal. The Trial Chamber held that its Statute and Rules of Procedure and Evidence provided the four accused with all the necessary fair trial rights as required by international human rights law. In rejecting the claim that the STL’s existence violated Lebanon’s sovereignty, the Trial Chamber held that this claim had never been advanced by Lebanon which, on the contrary, had been fulfilling its obligations under Resolution 1757. As Resolution 1757 was the sole basis for establishing the STL, the Trial Chamber did not consider it necessary to review the alleged violation of Lebanon’s Constitution. Continue reading ‘Comment on the STL Jurisdiction Decision’
August 19th, 2012 by Anna Bonini
by David Tolbert
When 26-year old Tunisian street vendor Mohamed Bouazizi set himself on fire on December 17, 2010, his act resonated across an entire region and sparked what is known as the Arab Spring. His cry echoed across the world because it was a universal call for justice, basic fairness, and equal treatment. Indeed, it was a call for the rule of law.
Nearly two years later, the United Nations has a unique opportunity to answer that call when the UN General Assembly holds a high level meeting on the rule of law this September. The UN member states are in a position to hold a serious discussion on how to advance the rule of law through the creation of tools and fora where real engagement can occur. Convened against a backdrop of the paralysis of the UN Security Council over the bloodbath in Syria and political transitions in the Middle East and elsewhere, few topics are of more pressing concern to the international community.
The UN General Assembly adopting the 3 August 2012 Resolution on Syria (Photo: AFP)
Though popular cynicism would tell us that there is nothing of less use than a UN discussion, these debates can have an impact far beyond the General Assembly’s Chamber. Some resolutions resulting from such debates have paved the way for groundbreaking developments on global issues such as the environment, child labour, racial discrimination, and matters of justice. Furthermore, the outcomes of these meetings can have irreversible impacts for years to come: the Universal Declaration of the Human Rights, adopted by the General Assembly in 1948, continues to change the face of 21st century law and practice throughout the world.
Yet the UN record on the rule of law is hardly outstanding, and decisive action is needed urgently in many countries. On virtually every continent we see repressive governments or violent conflicts with scores of victims and untold suffering. As the world watches Syria burn, calls for UN action have done little to motivate a polarised Security Council. Given the Council’s deadlock which resulted in the resignation of Kofi Annan and faltering of his mediating efforts in Syria, the General Assembly has a unique opportunity to be particularly relevant. If the UN’s commitment to human rights and justice are going to be more than rhetoric, the rule of law must be at the very heart of the UN’s work.
Recent decades have shown that the rule of law can be established by confronting a repressive or violent past through establishing the truth about abuses, holding those most responsible for mass crimes accountable, providing reparations for victims and reforming key institutions such as the police and security forces. Working in concert, these measures are often referred to as transitional justice, and provide a basis for reckoning with a past of abuse and a path to a more peaceful future.
The UN has recognised the importance of transitional justice measures rhetorically, and to a more limited extent, practically. It has expressed this recognition through the creation of international and hybrid tribunals (such as those for the former Yugoslavia, Rwanda and Sierra Leone), support for truth commissions and memorials, backing for reparations programmes, and vetting of police and military structures. It has taken steps to recognise those most vulnerable to violence and abuse – children, women, indigenous people and other minorities – and to pay particular attention to their needs. Through the application of these measures, countries in every part of the world have started to emerge towards a more peaceful and hopeful future.
To address the universal desire for justice and the rule of law, the upcoming General Assembly debate should ask how the UN can deliver on its promises in more concrete ways, and how it can break down internal silos that prevent it from effectively addressing these critically important issues. It should also ask how key UN institutions, including the International Court of Justice, the Security Council and the General Assembly, can improve their response when the rule of law breaks down. These issues deserve serious debate, reflection, and action.
While there is much to be concerned about in the Middle East, some real progress has been made over the past 18 months: credible elections were held in Libya, an authentic transition is underway in Tunisia (with a true human rights hero serving as president), and a robust civil society advocating for justice and reform is growing across the region.
Much remains to be done, but the Arab Spring shows us that the call for the justice and the rule of law cannot be swept aside. It is time for the UN General Assembly to prove its commitment to the rule of law through concrete and comprehensive steps. The Mohamed Bouazizis of this world deserve no less.
David Tolbert is president of the International Center for Transitional Justice.
This article originally appeared on www.aljazeera.com
August 14th, 2012 by Anna Bonini
On 14 August, US District Judge R. Doumar sentenced Mohammad Saaili Shibin to 12 life sentences, following his conviction in April for piracy, hostage-taking and kidnapping.
Mr Shibin was involved in the hijacking of the SV Quest near Oman in 2011, when four Americans (the couple who owned the boat, as well as two guests) were shot dead after a gang of 19 pirates took them hostage in the Indian Ocean. He was found to have received at least $30,000 to find family members of the victims and negotiate a ransom.
Mr Shibin, who was arrested by the FBI in Somalia shortly after the incident, was sentenced to serve 10 concurrent life sentences, two consecutive life sentences and two 20-year sentences and ordered to pay $5.4m in restitution. His lawyer stated that he intends to appeal the conviction.
August 10th, 2012 by Jessica Peake
Pre-Trial Chamber I of the International Criminal Court has postponed the confirmation of charges hearing in the case against Laurent Gbagbo, pending determination of Mr. Gbagbo’s fitness to take part in the proceedings.
On June 26, 2012, at the request of the Defence, the Chamber appointed three medical experts to perform a medical evaluation of Mr. Gbagbo’s fitness to stand trial. The experts filed a confidential report on July 19, and the Chamber issued its decision to postpone on August 2, and ordered the Prosecutor and Defence to submit their observations on the report by August 13 and August 21 respectively.
Mr. Gbagbo was surrendered to the ICC by the national authorities of the Cote D’Ivoire on November 29, 2011, following the issuance of a sealed warrant from Pre-Trial Chamber II on November 23, 2011. The OTP alleges that Mr. Gbagbo is individual criminally responsible, as an indirect co-perpetrator, for four counts of crimes against humanity, namely murder, rape and other sexual violence, persecution and other inhuman acts. The OTP alleges that pro-Gbagbo forces attacked the civilian population believed to be supporters of the opposing candidate in Abidjan and the west of Cote d’Ivoire in the aftermath of presidential elections in November 2010. It is alleged that the attacks were committed pursuant to a deliberate policy and were widespread and systematic. The Prosecutor contends that Mr. Gbagbo and his inner circle devised a plan and were aware that the implementation of that plan would lead to the commission of crimes against humanity.
August 10th, 2012 by Jessica Peake
On 7 August, Trial Chamber I of the International Criminal Court issued a decision on the applicable principles for determining reparations for victims arising out of the case against Thomas Lubanga Dyilo. Mr. Lubanga was found guilty of the war crime of conscripting and enlisting child soldiers in the Democratic Republic of Congo on March 14, 2012, and sentenced to 14 years imprisonment on July 10, 2012.
In its decision the Chamber stressed that the victims, their families and their communities, are all to play a role in the reparations process, and should be encouraged to participate and have a voice in what form the reparations take. Specific beneficiaries of reparations could include both direct and indirect victims of Mr. Lubanga’s crimes. Such indirect victims may be the family members of direct victims (conscripted or enlisted child soldiers), as well as people who tried to help the victims or intervened to prevent the commission of crimes.
In distributing awards there is to be no discrimination with regards to age, ethnicity or gender. Rather, the awards should be aimed at reconciling the victims and their families, whilst not intruding on their dignity and privacy. In determining award levels, special account should be taken of victims of sexual assault, and those former child soldiers who need to be rehabilitated into their communities.
To implement this award the Chamber will rely on the Trust Fund for Victims, which was established under Article 79 of the Rome Statute. Both Parties to the Rome Statute and non-states parties will be required to cooperate to give effect to the reparations awards, and in particular the Chamber emphasized that the Trust Fund will need to receive sufficient voluntary contributions in order to be able to implement the reparations programme in a meaningful and efficient way. The Chamber has not found any assets or property attributable to Mr. Lubanga and he has been declared indigent.
The Chamber suggested that several symbolic reparations may be appropriate to improve the position of victims such as campaigns, issuing certificates of acknowledgement that they suffered harm, outreach and promotional activities, and education programs aimed at reducing stigmatization, marginalisation and discrimination of the victims. Furthermore, it is hoped that the victims and their families will take solace in the conviction and sentence of Mr. Lubanga, and that Mr. Lubanga will volunteer a public apology to the victims, either on a public or confidential basis.
August 8th, 2012 by Julien Maton
Doughty Street Chambers has published its latest “Human Rights Bulletin”, summarizing key human rights decisions in UK courts as well as in European courts and internationally between March and August 2012. The bulletin was prepared by pupils at Doughty Street Chambers Conor McCarthy, Andrew Burrow and Jane Elliot Kelly. It is available here.
August 3rd, 2012 by Julien Maton
Joseph Rikhof, Senior Counsel with the Crimes against Humanity and War Crimes Section of the Department of Justice, Canada, has just published a book entitled ‘The Criminal Refugee: the Treatment of Asylum Seekers with a Criminal Background in International and Domestic Law’.
While the book explores the effects of criminality on the ability of asylum seekers to be granted status in countries where they seek refuge, a large portion of the book also examines key concepts of international criminal law, such as the parameters of war crimes, genocide, crimes against humanity and terrorist activities, as well as the notions of extended liability, defences and child soldiers.
Both the criminal and the refugee aspects are studied in reference to international institutions and in comparing the nine countries most active in this area.
As such the book represents an useful reference guide for both criminal and refugee law practitioners.
August 1st, 2012 by Julien Maton
The trial of the former Liberian President Charles Taylor for war crimes and crimes against humanity during Sierra Leone’s armed conflict was a largely well-run proceeding, Human Rights Watch said in a report released last week. The trial benefitted from a high-quality defense, sound handling of witnesses, and dynamic outreach to communities affected by the crimes. At the same time, Human Rights Watch’s analysis identified areas in which practice should be improved for future trials of the highest-level suspects before domestic, international, and hybrid war crimes tribunals.
The 55-page report, “Even a ‘Big Man’ Must Face Justice: Lessons from the Trial of Charles Taylor”, analyzes the practice and impact of Taylor’s trial by the United Nations-backed Special Court for Sierra Leone. The report examines the conduct of the trial, including issues related to efficiency, fairness, and witnesses and sources. It also examines the court’s efforts to make its proceedings accessible to communities most affected by the crimes, and perceptions and initial impact of the trial in Sierra Leone and Liberia. Continue reading ‘Human Rights Watch Report on Charles Taylor’s Trial’