Archive for December, 2012
December 24th, 2012 by Julien Maton
by Amal Alamuddin* - iLawyer and former adviser to Kofi Annan on Syria
AP Photo/Muzaffar Salman
The UN Security Council (UNSC) kick-started international criminal justice in the 1990s by creating courts to try those suspected of international crimes in the former Yugoslavia and Rwanda. When the International Criminal Court (ICC) opened its doors in 2002, it became the world’s first permanent international criminal court, covering crimes across the world. But it was not created by the UN. It was set up by treaty – the Rome Statute – meaning the court only has jurisdiction over states that have signed up.
With one exception. Under article 13 of the ICC’s statute, the UNSC can “refer” a situation in a state to the court, even if that state has not ratified the statute. The UNSC also has the power under article 16 to “defer” a case, meaning it can pause an ICC prosecution against an individual for a renewable one-year period. Decisions under articles 13 and 16 must be adopted under chapter VII of the UN Charter, which means, in theory, that they are taken when the interests of “international peace and security” require it.
The UNSC’s ability to trigger or stunt the ICC’s work means justice may become political and selective. In the ICC’s 10 years of practice, the UNSC’s deferral power has never been used to pause an imminent or ongoing case. The UNSC has used its referral power to send two files to the court – Darfur and Libya – allowing ICC judges to issue arrest warrants against presidents Bashir and Gaddafi. These referrals filled a jurisdictional gap, because Sudan and Libya had not voluntarily signed up to become ICC members. Continue reading ‘Will Syria Go to the ICC?’
December 23rd, 2012 by Julien Maton
The European Court of Human Rights (ECHR) has accepted the application of the members of the Bosnian association “Mothers of Srebrenica and Žepa ”. The women had lodged an application against the Netherlands following a ruling by the Dutch Supreme Court in April which had granted absolute immunity from prosecution to Dutch UN peacekeepers who were deployed in Srebrenica during the Bosnian war.
The group represents around 6000 surviving relatives of men and boys who were victims of the Srebrenica massacre which took place in Eastern Bosnia in 1995. Serb forces overran the Srebrenica enclave in Bosnia despite the presence of Dutch UN peacekeepers. “Mothers of Srebrenica and Žepa” claims that the United Nations and the government of the Netherlands failed to prevent genocide, and are therefore liable for compensatory damages.
The association says that it is making history by suing the world body in Strasbourg since it’s not getting any support from the Bosnian government.
December 23rd, 2012 by Julien Maton
Hearing at the ECCC
In a recent Op-Ed in the Cambodia Daily, Michael Karnavas, co-lawyer for Khmer Rouge Foreign suspect Ieng Sary, commented on the failures of the Extraordinary Chambers in the Courts of Cambodia (ECCC).
He first recalls that the ECCC will not be judged by the results of the cases that it will try as convictions are the inevitable and expected outcome. Any verdict of not guilty would be “anathema not only to the public, who have already convicted the accused in the court of public opinion, but also to the donors.”
The real issue, says Michael Karnavas, is procedural and substantive justice.
Defence Counsel says that the primary reason why the ECCC is failing seems to be the judges, highlighting issues such as corruption or incomplete and impartial investigations.
“Imagine a process in which the investigators pre-prepared questions and answers to the interpreter and witness to read into a microphone to pretend that an interview took place and ask yourselves whether this is indicative of a fair, impartial process.”, says the American lawyer.
More than that, for Michael Karnavas, the greatest failure at the ECCC is the lack of action of the international judges in insisting on the uncompromising application of international standards and best practices.
Through such spirit of being diplomatic, “the international judges have been co-opted into, and thus have been complicit in, re-enforcing certain systemic weaknesses embedded in the Cambodian courts.”
For Michael Karnavas, the ECCC will be judged by the quality of its proceedings, its rulings and its judgments and will only improve when it will cease its sacrifice of procedural and substantive justice for political efficiency and convenience.
December 21st, 2012 by Julien Maton
by Luka Misetic
A version with footnotes and references is available here.
Judges Fausto Pocar and Carmel Agius
On 16 November 2012, the International Criminal Tribunal for the former Yugoslavia (ICTY) established that Ante Gotovina and Mladen Markac are innocent as a matter of law, and that there is insufficient evidence of a Joint Criminal Enterprise to remove the Serb population from Croatia during and after Operation Storm. The Judgement has been criticized in certain limited circles, including Serbian government officials, Serbian academics (Milena Sertio, Miroslav Baros, Marko Milanovic), lawyers representing the Republic of Serbia (Marko Milanovic), former employees of the Office of the Prosecutor (including Carla Del Ponte and Anton Nikiforov) and persons affiliated with former Deputy Prosecutor David Tolbert (Paul Seils, Refik Hodzic). All of these individuals cite the dissenting opinions of Judges Pocar and Agius to justify their criticism of the ICTY in the Gotovina case.
I decided to write this blog post in order to set the record straight. The dissenting opinions of Judges Pocar and Agius are based upon incorrect interpretations of the law, the evidence and the positions of the parties in this case. As I will explain below and in subsequent blog posts, the Majority’s Judgement in this case was grounded not only in the law and the evidence, but also in traditional notions of fair play and substantial justice. Continue reading ‘Dissenting From the Dissenting Opinions of Judges Pocar and Agius’
December 19th, 2012 by Julien Maton
by Guénaël Mettraux
In a 7 December op-ed in the New York Times entitled “Selective Justice for the Balkans”, David Harland, Executive Director for Center for Humanitarian Dialogue, started a conversation on what he saw as the failure of the ICTY to be equal to all.
Responding to that invitation, Marko Attila Hoare, an author and journalist, dissects what he regards as grave and numerous factual distortions underlying Harland’s argument.
Reading the two articles together is a sobering reminder that journalistic or scholarly commentaries on judicial decisions are rarely a purely objective thing. It also makes the case for the need for factual accuracy in reporting. Those involved in international criminal trials know how hard it is to make a credible and reliable record of events of this magnitude. Accuracy in this context is important because distortions will feed recrimination and heighten societal tensions. For the same reason, accuracy in reporting about such proceedings is just as important. Misrepresentations in commenting upon the judicial decisions of international criminal tribunals will not advance any sort of dialogue, and certainly not the humanitarian sort that we all wish for.
December 19th, 2012 by Julien Maton
The International Criminal Court
iLawyerblog Guest Blogger and President of the International Center for Transitional Justice (ICTJ) David Tolbert recently discussed how to make “positive complementarity” work on the ground. Under such policy, the International Criminal Court (ICC) would ensure cooperation with national governments and use political leverage to encourage states to undertake their own prosecutions of international crimes.
In his remarks at the third Greentree Conference on Complementarity, David Tolbert gave an overview of the complementarity discussions over the past two years and an analysis of the present situation calling for internal developments of the rule of law.
Inspired by the Kampala Conference in July 2010, the Greentree dialogue aims to contribute to the fight against impunity by providing a forum dedicated to making the complementarity principle work on the ground and bringing together international justice actors, development agencies and rule of law implementers.
Tolbert explained that the Court, unlike the ad hoc tribunals, does not have priority over national authorities when it comes to prosecuting crimes. It is first the responsibility of the states to take the necessary steps to punish the perpetrators of the most serious crimes of international concern. It is only when a State fails in that duty, either through an inability or unwillingness, that the ICC may assert its jurisdiction.
The central question is therefore what support can be given to states, specifically their prosecutors and court officials, to actually fulfill their Rome Statute obligations, in order to provide efficient assistance. Continue reading ‘How Can Positive Complementarity Work?’
December 18th, 2012 by Julien Maton
The International Criminal Court (ICC) today acquitted alleged former militia leader Mathieu Ngudjolo of all charges of war crimes and crimes against humanity committed in eastern Democratic Republic of Congo in 2003. The presiding judge ordered his immediate release.
Presiding judge Bruno Cotte said that in view of all the evidence presented, “the Chamber has not been able to conclude beyond a reasonable doubt that the accused was the leader of the Lendu fighters who took part in the attack on Bogoro on February 24, 2003”.
The Chamber stressed that the ruling does not mean it believes no crimes were committed in Bogoro “nor does it question what the people of this community have suffered on that day”.
The judges also emphasised that the fact of deciding that an accused is not guilty does not necessarily mean that the chamber finds him innocent, saying that “such a decision simply demonstrates that, given the standard of proof, the evidence presented to support his guilt has not allowed the chamber to form a conviction ‘beyond reasonable doubt’.
Mathieu Ngudjolo was tried jointly with Germain Katanga. However, on November 21, the judges separated the two cases, after deciding a modification of the mode of liability with which Katanga is charged. The verdict in his case is not expected until spring 2013.
During the session, the presiding judge reminded the prosecution that it may seek a suspension of the release order pending appeal.
The verdict is only the second in the 10-year history of the ICC, and the first acquittal.
In March, Congolese warlord Thomas Lubanga was sentenced to 14 years in jail for recruiting child soldiers and using them to fight.
December 17th, 2012 by Julien Maton
by Rupert Abbott and Stephanie A. Barbour - Amnesty International
- The Extraordinary Chambers in the Courts of Cambodia
Over two years ago, Cambodia’s Prime Minister Hun Sen reportedly told UN Secretary-General Ban Ki-moon that the Khmer Rouge Tribunal’s second trial (Case 002) would be its last. Since then, investigations in Cases 003 and 004 – which involve five individuals suspected of genocide, crimes against humanity and war crimes – have barely progressed.
Mark Harmon, a seasoned prosecutor of war crimes at the International Criminal Tribunal for the former Yugoslavia, has recently been appointed as the new International Co-Investigating Judge at the Extraordinary Chambers in the Courts of Cambodia (ECCC), as the UN-backed Tribunal is officially known. His arrival provides a window of opportunity for prompt, thorough, independent and impartial investigations in Cases 003 and 004.
But should Judge Harmon be obstructed, as his predecessors were, it may not just be Cases 003 and 004 that are undermined. Rather, the entire Tribunal, and its role in strengthening the rule of law in Cambodia will be put at risk.
The saga of Cases 003 and 004
The Cambodian government opposes investigations in Cases 003 and 004 on the grounds that this could fuel “national instability”. Some suspect that the reason for this opposition is concern about what could be revealed during further investigations and potential trials, particularly about the role of current Cambodian government officials during the Khmer Rouge period.
Such political interference – and any resulting impunity – is the antithesis of justice and a breach of the agreement between Cambodia and the UN to establish the Tribunal. Continue reading ‘Khmer Rouge Tribunal: Last Chance to Salvage Justice?’
December 15th, 2012 by Julien Maton
On the 4th of December, ICRC Director of operations Pierre Krähenbühl joined Ambassador William J. Garvelink to launch the recently published edition of the International Review of the Red Cross (IRRC) on ‘the Future of Humanitarian Action’ at Washington’s Center for Strategic and International Studies (CSIS). During a discussion with US government representatives and major US NGOs, Mr. Krähenbühl analysed some of the key factors that will influence the future of humanitarian action and reflected on how best to address challenges and seize opportunities.
After an introduction on the Review issue on ‘the Future of Humanitarian Action’ by Ambassador Garvelink, Mr Krähenbühl presented some of the current trends the International Committee of the Red Cross (ICRC) has observed in the humanitarian field. These include the growing diversity of the nature of armed conflicts and parties involved, the increase in the average length of the duration of armed conflicts, issues of humanitarian access and perceptions of humanitarian actors, the need to engage in and difficulties flowing from a dialogue with all parties to a conflict, and the emergence of new humanitarian actors.
Mr Krähenbühl also addressed security issues, and emphasized the continued relevance of the principles of neutrality, impartiality and independence as well as the importance of international humanitarian law in dealing with today’s challenges.
Mr Krähenbühl then engaged in a discussion with the audience. The discussion, reflecting some of the key changes witnessed by a variety of humanitarian actors, addressed issues such as the impact of new technologies on humanitarian action, the proliferation of rebel movements and increasing security concerns.
The complete recording of the event is available here.
December 14th, 2012 by Raphaelle Rafin
The Balkan Investigative Network (BIRN) reported yesterday in Balkan Insight that, after a year-long delay, the Protocol of cooperation in the prosecution of perpetrators of war crimes, crimes against humanity and genocide between the Serbian and Bosnian prosecutions should be signed on January 31, in Brussels. The adoption of the protocol was delayed following the ICTY acquittals of two Croatian generals, Ante Gotovina and Mladen Markač, and the former Kosovan Prime Minister and Liberation Army commander, Ramush Haradinaj.
Friendship Pins with the flags of Serbia and Bosnia-and-Herzegovina
Serge Brammertz, the ICTY Prosecutor, urged for the adoption of the protocol by the authorities of Bosnia and Herzegovina and Serbia as a step toward improvement of the capacity of national institutions to conduct effective war crimes prosecutions.
Barisa Colak, Bosnia’s Minister of Justice, reminded that there is no extradition treaties between the countries in the region and declared that the protocol would enhance cooperation between the two countries. “The only way forward is to cooperate with our neighbours or exchange information; in that way we will not be in the position of neighbours issuing warrants for the arrests of citizens of Bosnia and Herzegovina and vice-versa. These procedures must be resolved more rapidly so that in a reasonable time we finally put an end to this period,” Colak said.
Denis Dzidic and Marija Ristic reported that the protocol should address the issue of parallel investigations, facilitate the mutual transfer of evidence between Bosnia and Serbia, and regulate trials of suspects in their country of origin for war crimes committed in the other. It is expected that the prosecutions of both countries will exchange at least hundreds of war crimes cases.
December 13th, 2012 by Raphaelle Rafin
Today, the European Court of Human Rights (ECtHR) found the “former Yugoslav Republic of Macedonia” responsible for torture, ill-treatment and secret rendition of Khaled El-Masri. The case was brought before the ECtHR by Mr. El-Masri, a German national of Lebanese origin, who complained that he had been a victim of a secret “rendition” operation during which he was arrested, held in isolation, questioned and ill-treated in a Skopje hotel for 23 days, then transferred to CIA agents who brought him to a secret detention facility in Afghanistan, where he was further ill-treated for over four months.
- Khaled El-Masri, (c)Getty Images
The Court found four distinct violations of Article 3 of the European Convention on Human Rights.
First, the Court found that the treatment endured by Mr. El-Masri in the hotel he was kept in for 23 days amounted on various counts to inhuman and degrading treatment. While no physical force had been used against Khaled El-Masri, he was kept incommunicado for more than three weeks as part of a secret operation and threatened to be shot if he left the hotel room. The Court established that the Macedonian authorities intentionally caused him emotional and psychological distress in order to extract information about Mr. El-Masri’s alleged ties with terrorist organizations. Continue reading ‘ECtHR: Macedonian Government Responsible for Torture of El-Masri’
December 12th, 2012 by Raphaelle Rafin
The International Criminal Tribunal for the former Yugoslavia (ICTY) today sentenced Zdravko Tolimir to life imprisonment after the former high ranking official of the Bosnian Serb Army (VRS) was found guilty of genocide, crimes against humanity and war crimes.
Zdravko Tolimir (c)AP
Zdravko Tolimir was first indicted in 2005 and arrested in 2007 for his alleged involvement in crimes committed between July and November 1995 against Bosnian Muslims in Srebrenica and Žepa, eastern Bosnia and Herzegovina. During this period, Tolimir was the Assistant Commander for Intelligence and Security of the Main Staff of the VRS. In this position, Zdravko Tolimir was one of seven Assistant Commanders who reported directly to the Commander of the Main Staff of the VRS, Ratko Mladić.
The Trial Chamber found by majority Zdravko Tolimir guilty of genocide, conspiracy to commit genocide, murder as a violation of the laws or customs of war, as well as extermination, persecutions, inhumane acts through forcible transfer and murder as crimes against humanity through the participation in two joint criminal enterprises. The aim of the first was to murder the able-bodied Bosnian Muslim men from the enclave of Srebrenica, between approximately 11 July and 1 November 1995. The goal of the second JCE was to forcibly remove and deport the Bosnian Muslim population from the enclaves of Srebrenica and Žepa from March to August 1995. The Majority determined that the Accused had the knowledge of and shared the genocidal intent of other JCE members, including that of his security and intelligence organs, who were extensively involved in carrying out both JCEs.
The Chamber stated “that the suffering these men went through in the moments leading up to their deaths must have been unbearable. On many occasions, those who were waiting to be shot saw others before them executed. The few survivors who lived to provide their testimony before the Chamber gave harrowing accounts of what they had to endure.” The Trial Chamber underscored that the crimes that were committed “were massive in scale, severe in their intensity and devastating in their effect.” The Majority found that between 4,970 to 6,000 Bosnian Muslim men from the Srebrenica enclave were murdered from 13 July to sometime in August 1995. The Majority also considered “the extreme suffering of the approximately 30,000–35,000 women and children forcibly removed from both enclaves, and their inability to live a normal and constructive life to this day”.
For the judgment summary, click here.
For the ICTY press release, click here.
December 12th, 2012 by Raphaelle Rafin
The International Bar Association’s International Criminal Court (ICC) Programme has recently issued its latest online newsletter Fair Trial Digest. Fair Trial Digest is a bi-monthly publication highlighting select fair trial issues arising at the ICC during the preceding two months.
The September – November 2012 edition features the following:
Fair Trial Focus
The Prosecutor v. Thomas Lubanga Dyilo
- Verdict, sentence and reparations decision appealed in ICC’s first case
The Prosecutor v. Germain Katanga and The Prosecutor v. Mathieu Ngudjolo Chui
- Trial Chamber II severs case and notifies Mr Katanga of possible regulation 55 recharacterisation of mode of liability
The Prosecutor v. Jean Pierre Bemba Gombo
December 12th, 2012 by Julien Maton
Aftermath of a blast next to the Takkoush flower shops, Rue Jeanne d'Arc, 1982, Beirut. Photo by George Azar
What does it entail to bear witness to events? What responsibility does the act of witnessing carry? These are the central questions evoked by George Azar and Mariam Shahin’s documentary film “Beirut Photographer.”
1982: George Azar, young American photojournalist, was in Lebanon during the Sabra and Shatila massacres, where hundreds of defenseless Palestinian refugees were slaughtered by Lebanese right-wing militias under the cover of the Israeli military.
Immersed in a world of gunfire and terror in an unfamiliar city, he chronicled the Palestine Liberation Organisation (PLO) guerillas, teenage snipers and civilians living through what became one of the bloodiest summers in the history of the modern Middle East.
Azar was also a victim of the war. He was captured by the Israelis, alongside with Palestinian and Lebanese fighters, held at gunpoint, and put up against a wall to be executed.
As the 30th anniversary of the Sabra and Shatilla massacre approached this year, Azar returned to Beirut to search for the people in some of his most memorable photographs. His story, and the story of his subjects, is explored in the film, “Beirut Photographer”, which you can watch here.
December 11th, 2012 by Raphaelle Rafin
The ADC-ICTY (Association of Defence Counsel practicing before the ICTY) just published its latest newsletter. ADC-ICTY Newsletter Issue 40 covers recent decisions and trial developments before the ICTY, including cases of Perišić, Lukić & Lukić, Haradinaj et al, Mladić, Hadžić, Karadžić. The newsletter also addresses recent events at the international courts and tribunals as well as general international law updates.
December 11th, 2012 by Julien Maton
The European Court of Human Rights
The European Court of Human Rights (ECHR) will be holding a hearing in the case Maktouf and Damjanovic v. Bosnia and Herzegovina on 12 December 2012.
The case concerns complaints brought by two men about the Court of Bosnia and Herzegovina, established in 2000 as a result of the international peace process, which convicted them of war crimes committed during the 1992-1995 war. The applicants are Abduladhim Maktouf and Goran Damjanović, an Iraqi national and a national of Bosnia and Herzegovina (“BiH”), respectively.
In Bosnia and Herzegovina, jurisdiction over domestic war crime cases can be divided between the Entity/District courts and the State Court of Bosnia and Herzegovina.
The State Court can decide to take over war crime cases because of their sensitivity or complexity, and, vice versa, transfer less sensitive and complex cases to the competent Entity/District Court.
Since December 2004 international judges can be appointed to the State Court. Between 2004 and 2006, the High Representative did indeed appoint more than 20 international judges to the State Court, including those sitting on Mr Maktouf’s case, for a renewable period of two years. Continue reading ‘ECHR Hearing: Do International Judges Render the Proceedings Unfair?’
December 10th, 2012 by Ellie Geranmayeh
Sergei Magnitsky died in custody in November 2009. Photo: Associated Press
Russia and the United States have entered into a diplomatic stand-off reminiscent of the cold war days over the accountability of human rights violations in both states. In response to U.S. legislation passed on Thursday 6 December 2012 targeting Russians alleged to be guilty of human rights abuses, Russia’s Foreign Minister stated that Russia would “bar entry to Americans who are in fact guilty of human rights violations”.
The majority in the House and Senate passed the U.S. Bill aimed at harmonising trade with Russia but turning the focus on human rights violators by attaching a so called ‘Magnitsky bill’ to the legislation. Pursuant to this Bill, the U.S. would freeze financial assets of Russian officials accused of involvement with human rights abuses and withhold entry visas to such persons. Continue reading ‘Cold War Focus on Human Rights – Russia & U.S. Relations’
December 10th, 2012 by Raphaelle Rafin
Courtenay Griffiths QC Photo: RAYMOND PRESTON
Courtenay Griffiths QC will give a lecture on “Politics in International Law” at BPP London Waterloo on Tuesday 11th December at 6 pm.
Courtenay Griffiths QC is a leading international criminal law barrister at 25 Bedford Row. He has recently defended the former Liberian President, Charles Taylor at the International Criminal Court at The Hague.
All are welcome to attend. The lecture will be followed by a drinks reception.
If you require any additional details please contact Tom Bennett or Chris Monaghan.
December 9th, 2012 by Julien Maton
This Friday, Sredoje Lukić’s Defence Team issued a press statement about the ICTY Appeals Judgment of 4 December in which their client was sentenced to 27 years imprisonment.
The Defence Team says that the Judgment creates a potential miscarriage of justice relating to the acceptance of a fundamental misidentification of the defendant which constitutes the sole basis for his conviction.
Relying on Judge Howard Morrison Dissenting Opinion, Defence Counsel say that the Appeals Chamber (AC)’s Majority has unforeseeably deviated from opinio juris and historic precedent, highlighting the fact that so little hearsay evidence by way of substantive indicia has ever been accepted as reliable.
For Defence Counsel, the evidence was weak, uncorroborated, and contradicted by evidence of other witnesses, deemed reliable by the judges, so that no reasonable trier of fact could have found Sredoje Lukić guilty of any practical assistance, encouragement or moral support which had a substantial effect on the perpetration of crimes.
Highlighting the risk that the Judgment might set an unfortunate precedent with regard to fundamental questions of identification, Sredoje Lukić’s Defence Team wants to bring it to the attention of the UN and any other relevant authorities in order to have the Judgment suspended or to have measures in place to order its review.
December 8th, 2012 by Julien Maton
On 4 December 2012, Counsel for Ante Gotovina in front of the International Criminal Tribunal for the Former Yugoslavia (ICTY) sent a complaint to the U.N. Secretary-General, Mr. Ban Ki-moon, in relation to the statements made in the Serbian newspaper Blic by the former ICTY Prosecutor, Carla Del Ponte, about the recent acquittal of the Croatian General by the Appeals Chamber of the Tribunal.
iLawyer Guénaël Mettraux is Counsel for Ante Gotovina.
Carla Del Ponte claimed that this acquittal was not justice but a denial of a huge crime. She also called into question the credibility of the Tribunal and said that suspicion about a political influence on the verdict was justified.
In their complaint, Ante Gotovina’s Counsel state that such statements constitute a grave violation of Mr. Gotovina’s fundamental rights, especially of his right to be presumed innocent, and are an unacceptable interference with the reputation and authority of the ICTY.
Moreover, Counsel say that accusing the Appeals Chamber judges of corruption is highly inappropriate and without basis, so that the United Nations (UN) must act immediately both to protect Mr. Gotovina’s fundamental rights and to protect the reputation of the UN and its judges.
For the Counsel, Ms. Del Ponte did not respect her ethical and professional obligations as UN Personnel. The Counsel request, among other things, Carle Del Ponte to publicly retract her statements and issue an apology to Mr. Gotovina.
In her interview, Ms. Del Ponte admitted that she made these statements before she had even read the judgment of the ICTY Appeals Chamber.
December 7th, 2012 by Julien Maton
The Human Rights Review Panel published its newsletter, covering the period from October to November 2012.
The HRRP held its 12th regular session in Prishtinë/Priština from 3 to 5 October 2012 and its 13th session from 13 to 16 November 2012 in Belgrade.
Following the recent Panel sessions, six cases have been communicated to the Head of Mission (HoM) of EULEX Kosovo, while five complaints have been declared inadmissible; two complaints were found to be admissible. Currently, there are 19 complaints pending before the Panel.
In October, the Panel elected its new Presiding Member, Magda Mierzewska. She has extensive international experience in various substantive and procedural human rights issues, and released numerous academic publications on those subjects.
During the same month, a new member joined the Panel: iLawyer Dr. Guénaël Mettraux.
The Panel also carried out an outreach campaign in Serbia, meeting with representatives of the Serbian government. Additionally, the Panel met with representatives of several NGOs and international organizations in Belgrade.
Based on extensive consultations, and taking into account the need for providing redress for possible violations, the European Union established the Human Rights Review Panel in 2009. The HRRP is a non-judicial accountability mechanism endowed with the power to review alleged human rights violations by European Union Rule of Law Mission in Kosovo (EULEX) in the conduct of its executive mandate. The HRRP can make non-binding recommendations on the basis of its findings, and follow up on the implementation of its recommendations with the Head of EULEX.
December 5th, 2012 by Ellie Geranmayeh
British Soldiers in Iraq ©Reuters
At this year’s Baha Mousa Memorial Lecture, Lieutenant Colonel Nicholas Mercer spoke about his experiences as the legal adviser to the British Army during the early years of the Iraq war. His speech focused on the complexities facing legal advisors in situations of armed conflict and the politics of fear which embedded the British Army in the year of Baha Mousa’s death.
For Mercer, there was a pattern of mistreatment and silence within the British Army that had culminated in the deaths of detainees such as Baha Mousa. Mercer explained the legal instruments that had come into force to shape the legal parameters of armed conflict, noting that despite this growth of legal framework, the British Army had been involved in a catalogue of incidents where detainees had been severely mistreated.
Mercer’s driving message was the need for the British Army to comply with the rule of law as well as the highest standards of international law, and ensure that the institutional silence that existed during the Iraq war was never repeated.
Detention in Iraq
From a logistical standing, the operation in the early years of Iraq was a chaotic task in which Mercer was placed with the duty to co-ordinate over 3,500 prisoners of war. Mercer’s plans to create a prisoner review unit, to nominate a judge to oversee detention and to set up prisoner review courts were all rejected by the UK Ministry of Defence. Mercer believed that the deaths of many detainees could have been avoided had the legal vacuum been filled to ensure at least the minimal legal protections and accountability.
ECHR in Armed Conflict
In 2003, Mercer repeatedly asserted that the European Convention on Human Right (ECHR) was applicable to the conduct of the British Army during the conflict and occupation of Iraq. This push for accepting the application of the ECHR was heavily ignored by various levels of army command.
In the 2011 judgment, Al-Skeini v UK, the European Court of Human Rights determined that there may be instances when the ECHR applies outside the ‘espace juridique’ and at last proved Mercer correct in holding that the ECHR was applicable to a signatory member state where there was effective control over a non-member state (whether that control was legal or illegal).
An inquiry into Baha Mousa’s death concluded that he died in 2003 under British custody, from the infliction of banned interrogation techniques. The inquiry criticised the long list of failures in the British Army’s chain of command which led to the mistreatment of Baha Mousa.
The 2012 Baha Mousa Memorial Lecture was held on 18 October 2012, Chaired by Sir Stephen Sedley
December 4th, 2012 by Julien Maton
- Sredoje and Milan Lukić
Today, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) affirmed the sentence of life imprisonment for Milan Lukić, and reduced the sentence for Sredoje Lukić from 30 to 27 years of imprisonment.
Both Accused were convicted for crimes against humanity and violations of the laws or customs of war committed in the eastern Bosnian town of Višegrad in 1992 and 1993.
Among other crimes, ICTY judges said Milan Lukić helped burn alive at least 119 people who were locked up by paramilitary fighters in two different houses that were set on fire on different days in June 1992 around Višegrad.
Sredoje Lukić, who is Milan’s cousin and a 51-year-old police officer, was present at one of the burnings and was found to have “substantially contributed to the deaths” though his armed presence.
The affirmation of Milan Lukić’s sentence is the first time the Appeals Chamber has upheld a sentence of life imprisonment.
December 4th, 2012 by Admas Habteslasie
The 11th session of the Assembly of State Parties (“ASP”) to the International Criminal Court came to an end on Wednesday the 21st of November. Each party to the Rome Statute is represented and has equal voting power at the ASP, which acts as the court’s oversight and legislative body. There are currently 121 countries who are parties to the Rome Statute.
Reports and resolutions were passed on issues including the court’s budget, cooperation between state parties and complementarity. The Bureau of the Assembly of State Parties submitted a report on complementarity, highlighting the importance of work by states, international and regional agencies and civil society in strengthening national jurisdictions.
A separate report on promoting universality and full implementation of the ICC’s Rome Statute stressed the importance of engaging states who were not yet parties to the Rome Statute. The ICC president’s work raising awareness and dispelling misconceptions amongst such states was also highlighted, in particular efforts among the Arab countries.
A range of state parties and non-parties gave speeches, including the United States, which stressed the importance of apprehending “fugitives who remain currently at large” such as Omar Al-Bashir, current president of Sudan. Both Russia and China, meanwhile, emphasised the important of maintaining the primacy of the UN Security Council in view of potential future developments in the ICC’s jurisdiction with respect to the crime of aggression.
December 3rd, 2012 by Julien Maton
At the conclusion of the delivery of the oral Charles Taylor Judgment on 26 April 2012, Alternate Judge Malick Sow of Senegal attempted to voice his dissenting opinion. As an Alternate Judge he does not have a vote, nor a right to dissent, but sought to publicly state his concerns that the evidence against Mr. Taylor did not reach the threshold necessary for conviction.
As Justice Sow made this statement, the other three Judges walked out of the room, while the court technicians cut off an in-house video feed to reporters, turned off the Judge’s microphone and closed the public gallery.
In a lenghty interview given to the New African magazine, Justice Sow tells for the first time his side of the story and the reasons underlying his behavior.
The Senegalese Judge first asserts that the Prosecution did not prove beyond reasonable doubt the guilt of Charles Taylor, adding that it was a total surprise to him to hear that the Judgment was a unanimous decision based on the Judges’ very different opinions about the case.
He further claims that the accused was not presumed innocent since the beginning, after all the “countless contradiction, lies, deception and manipulations” he saw during the trial.
“These are mass crimes. This is where we must have the highest standard of proof. It’s about proving the guilt of the accused beyond reasonable doubt. But they didn’t even reach the lowest standard of proof.”
Talking about the Defence case, Justice Sow said that, on the contrary of the Prosecution witnesses, the Defence called people who were actors of the conflict, at the frontline and who did not deny what they said in their previous statements.
When asked if he had a mandate to express his opinion in public as he did, Justice Sow states that neither the Rules of Procedure and Evidence nor the Statute of the Special Court for Sierra Leone provide any limitation for the expression of opinions on the Judgment.
He says that the other Judges knew from the beginning that he didn’t agree with their appreciation of the evidence and were well aware of what he was going to say on the day of the Judgment.
Justice Sow adds that the Judges did deliberate about Taylor’s guilt but he simply believes that their deliberations were inadequate and that he was wrongly excluded from them.
In May 2012, Justice Sow was sanctioned for alleged “misconduct” and ordered by the other Judges to refrain from further sitting in the proceedings, pending a decision from the Secretary-General of the United Nations.