The Day AU Leaders Justified the Existence of the ICC!

by Arnold Tsunga and Wayne Jordash QC

African leaders

African Union Summit, July 2014

There is a general notion that the law is like a spider’s web. It only catches the weak.

The decision adopted by the AU heads in Malabo, Equatorial Guinea, to grant immunity from prosecution for serious human rights violations to heads of state and senior government officials at the African Court of Justice and Human and Peoples Rights only serves to reinforce this perception.

Heads who faced justice

Few African heads of state have been tried for serious human rights violations of their own people. Those that come to mind are Charles Taylor (Liberia) and Hosni Mubarak (Egypt).  Charles Taylor was tried by a hybrid tribunal set up under the auspices of the UN in Sierra Leone (sitting in The Hague, a city that has become the seat of international justice). After being overthrown in a revolution, Mubarak was tried by domestic courts in what some view as flawed victor’s justice. The AU was not involved in either of these proceedings.

Others await or are going through trial. These are Laurent Gbagbo (Cote D’Ivoire), Omar Hassan Ahmad Al-Bashir (Sudan), Uhuru Kenyatta and his deputy, William Ruto (Kenya) at the ICC, and Hissène Habré (Chad) at an AU sponsored tribunal in Senegal. The Hissène Habré case has been awaiting trial since shortly after the millennium. Legitimate concerns have been raised about the willingness of the AU leaders to see Hissène Habré face justice and the completion of the trial. Omar Hassan Ahmad Al-Bashir has been largely protected by the AU heads that have refused to cooperate with the ICC to effect his warrant of arrest. Continue reading

Immunity under Pressure: The Case of Hugo Carvajal

by Philippa Webb

Hugo Carvajal

Hugo Carvajal © Reuters

A recent legal flurry on the island of Aruba (population: 100,000) has raised interesting questions about the nature and scope of diplomatic/consular immunity.

Hugo Carvajal, the former chief of Venezuelan military intelligence and retired General whose nickname is ‘el Pollo’ (the Chicken), was detained in Aruba on 23 July. He had been admitted to the island on a diplomatic passport and had been named Consul-General to Aruba by Venezuela earlier in the year.

According to news reports, he was detained at Aruba’s international airport pursuant to a request from the United States. He is accused of conspiring with Colombian drug traffickers to export cocaine to the US. In 2008, the US Treasury Department put him on a blacklist, alleging he had protected drug shipments from FARC and provided them with weapons and logistical assistance.

Venezuela’s Ministry for Foreign Affairs rejected the ‘illegal and arbitrary detention of [a] Venezuelan diplomat’ and invoked the 1961 Vienna Convention on Diplomatic Relations. A local judge in Aruba, however, rejected the claim of diplomatic immunity on 25 July. The judge pointed out that Carvajal’s nomination of Consul General had not yet been accepted by the Dutch authorities, which was required since Aruba is part of the Kingdom of The Netherlands. The judge ordered Carvajal to be held pending extradition proceedings. 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

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

Increasing the Efficiency of the Criminal Process at the International Criminal Court, While Preserving Individual Rights

by Shehzad Charania and John Doyle*

International Criminal Court

The International Criminal Court

In operation for more than a decade, the International Criminal Court is often the subject of criticism for its lengthy trials and inefficient procedures.  The Court has completed three trials in that time, all of which have taken more than six years from the point of arrest to conviction or acquittal.  International criminal justice does, of course, throw up numerous complex challenges not found in domestic proceedings.  But 12 years of practice at the Court have confirmed that unnecessary delays occur in a number of areas, which have the potential to interfere with the rights of the accused, and, more broadly, the perception of the trial process among victims and affected communities, and the public at large.  Finally, delays have financial, logistical as well as other legal implications.

Last week, Sweden, the United Kingdom and Japan convened an all-day seminar, in conjunction with the Hague Institute for Global Justice.  The seminar, entitled “Increasing the Efficiency of the Criminal Process, while Preserving Individual Rights”, and moderated by Professor Håkan Friman, provided a unique opportunity for interaction, and discussion of radical ideas, between representatives of the Court, including over a third of the Court’s Judges, and senior members of the Office of the Prosecutor, the ad hoc tribunals, ICC States Parties, members of the Bar, NGOs and academia. Continue reading

UK NCP Accepts LPHR’s Complaint Against G4S’ Activities in Israel and the OPT: “Oh to be a fly on the wall of that mediation!”

by Maria della Porta Rodiani (of Globalrightscompliance LLP)

Credit-Stop-G4SOn 22 May 2014, the United Kingdom (‘UK’) National Contact Point (‘NCP’) for the OECD Guidelines for Multinational Enterprises (‘the Guidelines’) rendered its initial assessment (‘IA’) on  the issues raised in a complaint submitted by the Lawyers for Palestinian Human Rights (‘LPHR’) against G4S, a UK company providing security equipment and services to the Israeli authorities in the Occupied Palestinian Territories (‘OPT’).

The Complaint

In November 2013, LPHR had submitted a complaint under the OECD Guidelines for Multinational Enterprises to the UK NCP, concerning G4S’ provision of equipment and services in the Israeli Separation Barrier (‘the Wall area’) – predominantly within the West Bank including East Jerusalem, to the Erez crossing between Israel and the Gaza Strip, and to Israeli Prison Services (IPS) facilities in several locations.

LPHR argued that as a consequence of the 2004 International Court of Justice advisory opinion concluding that the Wall was built in breach of international humanitarian and human rights law, G4S’ facilities and operations in these areas are considered to be in breach of international human rights, and part of an unlawful regime. Thus, LPHR alleged that G4S’ activities may (1) be generally involved with human rights abuses, (2) cause or contribute to them, or (3) be linked to them by a business relationship. In addition, LPHR argued that G4S had not carried out appropriate human rights due diligence. Continue reading

The Guatemalan Genocide Case and the Upcoming Amnesty

By Sander Wirken - PhD candidate at the University of Amsterdam, Sander Wirken is making the documentary Burden of Peace about Guatemala’s former Attorney General Claudia Paz y Paz. Watch the embedded video to find out how you can become part of that project.

A Guatemalan trial court wrote history on 10 May 2013 when it convicted former president general Efraín Ríos Montt to 80 years imprisonment for his role in the genocide and in war crimes committed by the army. It was the very first time that a national court convicted its own former head of state for genocide. Lawyers all over the world applauded Guatemala for the apparent achievement of its national judicial system. Ten days after the conviction, however, the Constitutional Court declared that a procedural error had been committed. The procedural error in question did not amount to a breach of a constitutional right and should hence have been addressed by an Appeals Chamber and not by the Constitutional Court, as one of the dissenting opinions in the 3-2 majority decision pointed out. But the majority opined differently and the conviction was declared invalid on that technicality.

            What followed was a concerted backlash to all forces that had supported the genocide trial.

Continue reading

Saif Gaddafi Must Be Tried in The Hague

by Miša Zgonec-Rožej*

Seif-al-Islam GaddafiOn 21 May, the Appeals Chamber of the International Criminal Court (ICC) in The Hague rejected Libya’s bid to prosecute Saif Gaddafi domestically and confirmed that he should be tried by the ICC. The ICC’s decision is the correct one and hopefully Libya will comply with it.

According to the Rome Statute, the ICC cannot try a case where the same case is being investigated or prosecuted by a state which has jurisdiction over it, unless the state is unable or unwilling genuinely to carry out the investigation or prosecution. The Appeals Chamber confirmed that Libya had not provided enough evidence to demonstrate that it was investigating the same case as the one before the ICC.

The decision comes as no surprise. The situation in Libya has been in a state of near-anarchy, characterized by lawlessness, insecurity, and an ineffective police and judicial system. UN and human rights organizations report widespread abuses, and the government has been unable to control the militias who continue to exert their influence and pressure on Libyan authorities, including the judiciary. Continue reading

ICC and The Netherlands: Free the Three Congolese Witnesses NOW!

by Göran Sluiter

ICC detention Centre

The ICC detention Centre

This blog is generally the place for academic reflection and analysis, but this posting -I am aware- also may be perceived as having the nature of an (emotional) appeal to both the ICC and the Netherlands.

Representing the three Congolese witnesses in their asylum procedure in the Netherlands -together with colleagues Van Eik and Schüller- I fully and openly declare an interest. That said, it is my conviction that the fate of the three Congolese witnesses in ICC detention has reached the level of absurdity and requires urgent attention.

Those who are not very closely following the ICC express great suprise when I inform them that there are witnesses being detained at the ICC Detention Unit. The starting point and legal basis for the witnesses’ detention lies in art. 93 (7) of the Statute. It is indeed a logical and welcome arrangement to facilitate the testimony of witnesses detained in a State party to have their detention temporarily continued at the ICC.

However, in respect of three Congolese defence witnesses an unprecedented situation arose when they applied for asylum in the Netherlands, because, among other things, they fear reprisals by DRC President Kabila in case of return to the DRC. The witnesses had in their testimonies in the Katanga and Ngudjolo trials implicated Kabila in the commission of international crimes in the DRC. Continue reading

Hackers Groups And Enforcement Of The Law Of Armed Conflict

by Nicolò Bussolati

cyberwarOver the past few years, the laws of war have evolved in all sorts of ways. Before international criminal tribunals, for instance, the law of war crimes has been re-shaped and specified. Another significant trend in recent years has been the growing relevance of that body of law to digital technologies. In the cyber warfare context, of particular interest is the increasing role of non-state actors. Whilst the issue of the conditions under which the laws of war could come to apply to hacker groups is left for another day, the present paper considers some of the practical issues that would arise should one seek to enforce the laws of war onto them.

In March of this year, for instance, the hacker group Anonymous launched operations (OpRussia and OpUkraine) striking Russian cyberspace with digital attacks – including distributed denial of service (DDoS) attacks – in reaction to the Russian maneuvers in Crimea. On the opposite side, a pro-Russian hacker group named Cyber Berkut repeatedly attacked NATO and Ukrainian websites.

This was, of course, not the first time that hacker groups got implicated in armed frictions involving states. During the 2008 South Ossetia military campaign, Georgian digital systems suffered intensive cyber attacks: analysis of these incidents suggested the likely involvement of patriotic hacker collectives, very possibly under the direction of the Russian government. In 2012, as a response to the Israeli military operation in GazaPillar of Defence, Anonymous launched a DDoS attack against several Israeli websites and posted online names, ID numbers and personal emails of 5,000 Israeli Defence Force officials.

The substantial involvement of non-state actors in the past cyber events underlines their growing ability and willingness to engage in cyber warfare alongside actual military efforts. To the extent that such groups actually participate in a war or military effort, should they be expected and regarded as being subject to the laws of armed conflict? A brief analysis of the structural features of hacker groups might suggest that they cannot be or not effectively so. Continue reading