Legal Scholars’ Joint Declaration on Israel’s Gaza Offensive

Gaza July 2014

Gaza, July 2014

Last week, more than 100 international legal experts and human rights defenders from around the world, among them former UN independent experts and leading law professors, issued a joint declaration denouncing the grave violations and “disrespect of the most basic principles of the laws of armed conflict and of the fundamental rights of the entire Palestinian population” during the ongoing Israeli offensive on the Gaza Strip, and calling for the international community, including the UN, Arab League, EU and the US, to establish clear mechanisms for accountability for international law violations. “Accountability cannot again be sidelined and stigmatized to serve  political  interests, our  interests must  be  the  protection of  civilians and  peace”, says Professor John Dugard, former UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967.

“Once again it is the unarmed civilian population, the ‘protected persons’ under International humanitarian law (IHL), which is in the eye of the storm, victimized in the name of a falsely construed right to self-defence, invoked after an escalation of violence provoked in the face of the entire international community,” says the Joint Declaration.

The declaration denounces the flouting of basic tenets of IHL, including the principle of distinction by which only combatants and military objectives can be targeted, and the principle of proportionality. Indiscriminate attacks against civilians, regardless of the identity of the perpetrators, are not only illegal under international law but also morally intolerable. Continue reading

Genocide Trial Begins for Former Khmer Rouge Leaders

Nuon Chea and Kieu Samphan

Kieu Samphan (left) and Nuon Chea

Today, the last two surviving leaders of Cambodia’s Khmer Rouge regime, Khieu Samphan, the former head of state of Cambodia, and Nuon Chea, former president of the national assembly under Pol Pot’s regime, begin their second trial at the Extraordinary Chambers in the Courts of Cambodia (ECCC).

Both are already on trial for war crimes and crimes against humanity at the ECCC.

The second trial includes a charge of genocide related to killings of Vietnamese and Cham Muslim minorities. The charges are based on factual allegations concerning four security centres, three worksites and one group of adjacent cooperatives.

The cases are being tried separately to accelerate proceedings, because the defendants are elderly.

The second trial is a continuation of the first one. A verdict in the first case is expected on 7 August. Prosecutors are seeking life sentences for the two accused. Continue reading

STL Does Not Have Jurisdiction for Contempt Cases Against Legal Persons

Special Tribunal for Lebanon

Last week, the Contempt Judge Nicola Lettieri issued a Decision on a Motion Challenging the Special Tribunal for Lebanon’s jurisdiction. The motion was submitted by the Defence for NEW TV S.A.L and Karma Hohamed Tahsin Al Khayat and questioned whether the Tribunal could hear cases of contempt and obstructions against the proper administration of justice by legal persons (i.e. corporate entities).

The Contempt Judge ruled that although the Special Tribunal for Lebanon (STL) does not have jurisdiction to hear cases dealing with obstructions of justice against legal persons, it does retain jurisdiction to hear cases dealing with offences against the administration of justice against natural persons. This was held to be consistent not only with international case law, but also with Rule 60bis of the STL’s Rules of Procedure and Evidence.

Last year, information relating to confidential witnesses has been broadcasted in certain medias.

Following these events, the Registrar of the Tribunal appointed an amicus curiae. Based on reports by the amicus, the Contempt Judge concluded that there was prima facie evidence that justified proceedings for contempt.

Two journalists and two media organisations have been subsequently charged with contempt before the Tribunal.

ICC Appeals Chamber Confirms Al-Senussi Case Is Inadmissible

Senussi1

Abdullah Al-Senussi (c) Libya Herald

Yesterday, the Appeals Chamber of the International Criminal Court (ICC) confirmed that the case against Abdullah Al-Senussi is inadmissible.

On 11 October 2013, Pre-Trial Chamber I had declared the case against Mr Al-Senussi inadmissible on the grounds that the Libyan authorities were currently investigating Mr Al-Senussi and that they were willing and able genuinely to carry out domestic proceedings.

In rejecting the defence appeal, the Appeals Chamber held that there were no errors in the findings of the Pre-Trial Chamber that Libya is not unwilling or unable to genuinely prosecute Mr Al-Senussi, or in the exercise of its discretion in the conduct of the proceedings and in the evaluation of the evidence. Judges Usacka and Song appended respective separate opinions agreeing with the conclusion of the majority but formulating their own reasoning on the correct interpretation of the ‘same person, same conduct’ test, which must be satisfied to conclude that a given domestic authority is investigating or prosecuting the same case as that before the ICC.

Mr Al-Senussi held the rank of colonel in the Libyan Armed Forces and served as Muammar Gaddafi’s chief of intelligence before the fall of the regime during the Libyan uprising in 2011. The Prosecution had charged Mr Al-Senussi with murder and persecution as crimes against humanity for his involvement in utilising the State security forces to target the civilian population in an attempt to quell the revolution.

Mr Al-Senussi was charged alongside Muammar Gaddafi (since deceased) and Saif al-Islam Gaddafi. The latter also challenged the admissibility of his case before the ICC but the Appeals Chamber held on that occasion that the case was admissible.

UN Condemns Military Actions in Gaza

navi pillay

UN High Commissioner for Human Rights, Navi Pillay

At an emergency debate held today at the United Nations (UN) Human Rights Council, Navi Pillay, the UN High Commissioner for Human Rights has condemned the military actions in the Gaza Strip, saying that war crimes may have been committed and that not enough has been done to protect civilians.

“There seems to be a strong possibility that international law has been violated, in a manner that could amount to war crimes,” Ms Pillay said.

She also condemned the indiscriminate attacks of the Hamas on Israel.

“The principles of distinction and precaution are clearly not being observed during such indiscriminate attacks on civilian areas by Hamas and other armed Palestinian groups,” she told the UN Human Rights Council.

Despite her condemnation of Hamas attacks on Israel, Ms Pillay also views Israel’s actions in Gaza as disproportionate. Continue reading

Red Cross: “Ukraine is Officially in a War”

Ukraine ConflictAccording to Western diplomats and officials, the Red Cross has made a confidential legal assessment that Ukraine is officially in a war. Such statement would open the door to possible war crimes prosecutions, including over the downing of Malaysia Airlines MH-17.

“Clearly it’s an international conflict and therefore this is most probably a war crime,” one Western diplomat said in Geneva.

The Red Cross has not made any public statement – seeking not to offend either Ukraine or Russia by calling it a civil war or a case of foreign aggression – but it has done so privately and informed the parties to the conflict.

“The qualification has been shared bilaterally and confidentially. We do not discuss it publicly”, said Anastasia Isyuk, the Red Cross spokeswoman.

The designation as a war – either international or civil – changes the situation as it turns both sides into combatants with equal liability for war crimes, which have no statute of limitations and cannot be absolved by an amnesty. Continue reading

The Net is Closing in on Guatemalan Criminals

by Sander Wirken

Former Guatemalan national police chief Sperisen sentenced to life in Switzerland

Erwin Sperisen

Erwin Sperisen

An accused standing trial for the murder of ten people is not a common occurrence in Swiss criminal courts. Erwin Sperisen, a former Guatemalan police chief (2004-2007) and dual Guatemalan-Swiss national, stood trial for just that this year. On 6 June 2014, he was sentenced to life imprisonment for the extrajudicial execution of seven prisoners in a campaign of ‘social cleansing’ directed by the national police leadership. The ruling marks an important victory for justice and signals that fleeing to another country is no longer a guarantee of impunity for Guatemalan criminals.

During the Oscar Berger government (2004-2008), a parallel structure emerged in Guatemala within the Ministry of the Interior and the National Civilian Police, led by the police top leadership and the Minister of the Interior. Amongst other activities, the structure dedicated itself to ‘social cleansing’, i.e., ridding Guatemalan society of what those involved in that process regarded as ‘undesired elements’.

The charges against Sperisen revolved around two incidents. First there was the case of three inmates that had escaped from the El Infiernito prison in October 2005. The escapees allegedly resisted their arrest and died in an armed confrontation with police officers. The bullet impacts, witness testimonies and other evidence were inconsistent with that scenario however and pointed rather at the escapees having been executed, after which the crime scene had been altered to resemble an armed confrontation. The Swiss court was convinced that the three escapees had indeed been extra-judicially executed. However, the court was not convinced beyond any reasonable doubt of Sperisen’s personal involvement in the killings, as Sperisen had not been present at the scene of the crime and no clear evidence linking him to the material authors of the executions was provided. Continue reading

Dutch Officials Knew Bosnian Men Would Be Killed in Srebrenica

Dutch Peacekeepers Srebrenica

Dutch Peacekeepers in Srebrenica in 1995 [AP Photo]

In a recent op-ed in the New York Times, Liora Sion discusses the condemnation of the Dutch State for the deaths of 300 Bosnian Muslims, men and boys, in Srebrenica, Bosnia-Herzegovina, in July 1995. During the war, these Bosniaks sought refuge in a United Nations base where the Dutch peacekeepers were stationed. The Dutch subsequently handed the men and boys to the Bosnian army which decided to kill them afterwards.

For Liora Sion, the Dutch officials knew the danger they caused in Bosnia. She could experience the situation on the ground as she accompanied Dutch NATO peacekeepers in Bosnia and Kosovo as part of her field work for a PhD thesis.

She says that the soldiers she saw were men with little training and that holding them responsible for what happened in Srebrenica would be wrong.

However, she says that the commanders were responsible for the killings as they should have known that these Bosnian men would be killed because there was strong evidence of the Serbs commiting war crimes. Continue reading

Gaza’s Water Infrastructure in Danger

Gaza July 2014

Gaza city, July 2014 (c) EPA

Repeated bombing is devastating Gaza’s fragile water infrastructure, while the deaths of several municipal water technicians highlight the danger they face in carrying out vital maintenance.

“Water and electrical services are affected  as a result of the current hostilities. If they do not stop, the question is not if but when an already beleaguered population will face an acute water crisis,” according to Jacques de Maio, head of the International Committee of the Red Cross (ICRC) delegation in Israel and the occupied territories.

To make matters worse, the intensified fighting is preventing technicians from carrying out essential repairs. Following the deaths of several municipal water technicians over the past few days, Gaza’s water service provider has suspended all field operations until the safety of its staff can be guaranteed.

As a result, hundreds of thousands more people will soon find there is no water when they turn on the tap.

“Gaza’s water system has been deteriorating for years. The latest attacks are the last straw. Safe drinking water is becoming increasingly scarce in the Strip, just as temperatures are soaring. Water is becoming contaminated and sewage is overflowing, bringing a serious risk of disease,” said ICRC water and sanitation expert Guillaume Pierrehumbert. “In recent days, ICRC teams have helped the authorities conduct essential emergency repairs to water and sanitation infrastructure in Gaza, improving the situation for over 90,000 people, but bolder action is urgently required.”

Under international humanitarian law, the parties to a conflict must distinguish between military objectives and civilian objects and between combatants and civilians. They must also avoid harming civilians or civilian objects, and protect them from the effects of military operations. This includes protecting water technicians, water networks and electrical supply systems.

Brazil: Extra-Time For Human Rights?

by Natacha Bracq of Global Rights Compliance LLP

Maracana 2014

Maracanã, Rio de Janeiro, February 2014, (c) ME /Portal da Copa

Although it is considered to be the world’s seventh wealthiest country, Brazil’s human rights record is faltering at best. However, this year’s 2014 FIFA World Cup has brought some overdue international attention, as well as stirring up large internal protests. The contrasts could not be starker. Despite its impressive economic development and the enormous expenditure associated with the World Cup, government corruption, poor public services and police violence continued to blight the lives of ordinary Brazilians and have given rise to understandable public outrage. For over a year, Brazil has experienced waves of protests with around a million people on the streets. However, as tens of thousands of tourists descended upon the 12 hosting cities, little appears to have been done to answer Brazilians’ call for justice or improvements. Given the police and military conduct, one might be mistaken for believing that the authorities care little for responses, except those that are accompanied by tear gas and violence.

Reporter Brasil (a Sao Paulo based NGO) identified six main categories of human rights abuses that are associated with the hosting of the World Cup: the right to decent work, the rights of children and adolescents, the right to protest, the rights of stakeholders, housing rights, and the rights of immigrants and temporary workers. Tellingly, rather than amending laws to address societal need, the Brazilian Congress instead enacted the General Law of the World Cup that, in the main, restricted rights guaranteed by the Constitution and other legislation. The changes mainly serve the interests of FIFA and its sponsors, meanwhile doing nothing to address the country’s human rights record. Continue reading