Tunisia’s “Reconciliation Bill” Threatens Gains of the Revolution

by David Tolbert*

Tunisia RevolutionTunisia has until now inspired the region and the rest of the world by taking the democratic path after its 2011 revolution. But the current dysfunction of the political system, the deep poverty in the country’s marginalized rural interior and the brutality of extremism are tying a vicious knot that threatens to destroy the transitional process. With the government’s proposed “Reconciliation Bill,” the promises of the revolution are in danger of being crushed. The gains of the revolution are at stake.

In this worrying situation, what is needed is more support for the rule of law, not less. What Tunisians deserve and what the revolution sought was the end of dictatorship and the pursuit of accountability for large-scale corruption and human rights violations, not authoritarian measures and entrenched impunity.

The government of Tunisia, regrettably, is responding to the current security crisis with measures that could make the situation worse. The now-departed dictator Zine el-Abidine Ben Ali pointed to extremism to justify policies that led to torture, prolonged detention, sexual violence, and forced exile as well as extreme restrictions on the right to education, religious worship and livelihood. That climate of repression could well return with new draconian provisions. Continue reading

For All Kenyans to Be Equal, Kenyatta Must Move Beyond Words on Justice

by David Tolbert*

President Kenyatta (c) AP

Kenyan President Uhuru Kenyatta (c) AP

President Obama’s historic visit to Kenya came at an important crossroads for the country. While much of the attention of the press was directed at Obama’s Kenyan roots, for many, Obama’s emphasis on justice for all Kenyans is what will be remembered. This is particularly true given that Obama’s visit came four months after President Kenyatta’s official apology to, and announcement of reparations for, the many victims of the 2008 post-election violence, as recommended by Kenya’s Truth, Justice and Reconciliation Commission (TJRC).

The issue of justice, as well as endemic corruption and the stalled reform process in Kenya, will remain long after the cheers for the U.S. President have faded. President Kenyatta has, however, an opportunity in the wake of Obama’s historic visit to go beyond rhetoric and both deliver on his apology and the issues Obama has raised. Kenyatta and the Kenyan authorities should not miss this opportunity.

Kenyatta’s promising announcements require concrete steps and actions without further delay. His four-month old decision to establish a fund to provide relief to victims was followed and confirmed by the inclusion of the first tranche of resources-one billion shillings (almost $10 million U.S. dollars) in the new annual budget. Now is the time to design a comprehensive and gender-sensitive reparations program that starts with the most vulnerable victims. Opening space for the participation of victims and listening to their needs and demands must be the first step. Concurrently, an efficient and transparent administrative system and infrastructure for the program must be created. Continue reading

The Principle of Ne Bis in Idem in International Law: European Inspiration?

By Myron Phua*

European LawRecent developments in the jurisprudence of both the Court of Justice of the European Union (“CJEU”) and the European Court of Human Rights (“ECtHR”) have demonstrated how international tribunals can collaboratively act to develop the international law principle of ne bis in idem to increase its clout. The ne bis in idem principle exists in Public International Law not as a monolithic rule capable of universal enforcement, but as a rule specific to the jurisdictional regime in which it operates – each differing from the others in scope and content.

The CJEU in Criminal Proceedings Against M. (C-398/12, 5 June 2014) had held, at [37], that ne bis in idem under Article 50 of the European Charter of Fundamental Rights had “… the same meaning and the same scope as the corresponding right” under Article 4, Protocol 7 of the European Convention of Human Rights. This enabled the Court to make two conclusions on the merits of the case in relation to the application of ne bis in idem within EU law under Article 54 Convention Implementing the Schengen Agreement (“CISA”).

First, the Court ruled that, referencing the position under the ECHR as established in Sergey Zolutukhin v. Russia, (no. 14939/03), a ‘non lieu’ ruling by the courts of a given EU Member State was capable of being a final decision which triggered the protection under Article 54 CISA prohibiting subsequent prosecutions in another Member State, regardless of whether “… the exceptional bringing of separate proceedings based on different evidence” remained a possibility. Continue reading

For Hissène Habré, a Trial by Refusal

by Thierry Cruvellier*

DAKAR, Senegal — Surrounded by 10 muscular prison guards, Hissène Habré, his frail body entirely swathed in white, looked smothered in his chair. He was sitting in the front row of the immense courtroom, fingering Muslim prayer beads. His boubou covered all but his eyes, and they were partly hidden by his glasses.

Mr. Habré, the 72-year-old former president of Chad, is accused of crimes against humanity, war crimes and torture regarding the deaths of an alleged 40,000 people during his rule between 1982 and 1990. July 20 was the first day of his trial before the Extraordinary African Chambers, a special court he has repeatedly denounced as “illegitimate and illegal.” And almost as soon as it started, it stopped: Mr. Habré, and his lawyers, refused to participate, and on the next day the proceedings were suspended.

The Habré trial is the event of the year in the field of international criminal law. With tensions growing between the African Union and the International Criminal Court — which African states accuse of being biased against them because it prosecutes mostly crimes committed in Africa — the E.A.C. was being touted, at least by Senegal’s justice minister, as the advent of an “Africa that judges Africa.”

Hissène Habré after a court hearing in Dakar in June. Credit Seyllou/Agence France-Presse — Getty Images

Hissène Habré after a court hearing in Dakar in June. Credit Seyllou/Agence France-Presse — Getty Images

But on the first day of what may be the court’s only trial, Mr. Habré derided the E.A.C., or C.A.E. in French, as the “Comité administratif extraordinaire,” the Extraordinary Administrative Committee. He called the judges — two from Senegal, one from Burkina Faso — “simple functionaries tasked with carrying out a political mission.” As the hearing was about to begin, Mr. Habré stood up and shouted, “Down with imperialism! Down with traitors! Allahu Akbar!” A dozen of his partisans rose from their seats nearby and chanted: “Long live Chad!” “Long live Habré!” “Mr. President, we are with you!” Continue reading

Blasphemy Statutes Deny Human Rights

By Vani Sathisan, Sanhita Ambast and Reema Omer*

Blasphemy prosecutions are undermining the rule of law in Myanmar, India and Pakistan.

Hdtin Lin Oo

Writer and National League for Democracy information officer Htin Linn Oo (right) arrives at Chaung Oo Township Court in Sagaing Region on March 24. (Than Naing Soe/The Myanmar Times)

Blasphemy laws, such as section 295(a) of these countries’ penal codes, are inconsistent with human rights, including freedom of opinion and expression; freedom of thought, conscience and religion; the right to liberty; and the right to equality before the law without discrimination. They are also applied arbitrarily, and accused people are often punished after unfair trials.

Section 295(a), enacted by colonial authorities in 1927 to curb communal tension, is the same in all three countries. It states that “deliberate and malicious intention of outraging the religious feelings of any class by insulting its religion or religious beliefs” shall be punished with imprisonment, a fine or both.

In a litany of recent cases, however, courts have convicted individuals in the absence of evidence of any deliberate and malicious intent to insult a religion. People have been severely punished simply because their acts of expression without such intent were perceived to be at odds with conservative interpretations of a religion. In Myanmar, at least, statements offensive to minority religions go unpunished. Continue reading

Silence on Investment Projects Is not the Answer

By Vani Sathisan and James Tager*

Letpadaung Copper MineOver the past three months, the International Commission of Jurists (ICJ) has written to investors, developers, an international audit company and an environmental research institute to ask for the public disclosure of information relating to two of Myanmar’s largest economic development projects: the Dawei and Kyauk Phyu Special Economic Zones (SEZs). The ICJ asked for information regarding environmental impact assessments (EIA), environmental management plans, and financial audit reports. The ICJ received no substantive responses.

The Dawei and Kyauk Phyu SEZs, two of Myanmar’s three proposed SEZs, are key elements of the country’s economic development plans. Transparency about the proposed projects is vital to ensure the protection of those whose rights will be affected by these massive investment projects. The Myanmar government, and interested investors, must remove the secrecy around these projects and provide the basic information requested regarding these projects.

In a country where businesses normally proceed without input from local communities, such secrecy has fostered serious human rights abuses, including land misappropriations, loss of livelihoods, serious environmental damage, and violent curtailments of freedom of expression and association. Continue reading

Yugoslavia Tribunal: Legacy of War

By Eduardo Reyes*

ICTYThe end is near for the groundbreaking international tribunal established to try alleged crimes committed in the conflicts of the former Yugoslavia. Eduardo Reyes travelled to The Hague to assess its achievements.

There was a time in the mid-1990s when it seemed the main legacy of the International Criminal Tribunal for the former Yugoslavia (ICTY) would be the fact that it had been constituted and issued indictments.

The first court of its kind since the Nuremberg and Tokyo tribunals, it faced an enormous obstacle that those predecessor tribunals did not. In many cases, its indictees remained politically powerful, well connected and at large.

Where the areas in which the indictees lived had been pacified, such was the fragile nature of peace it was widely believed their apprehension risked restarting a conflict that had left more than 100,000 dead in Bosnia and Herzegovina alone. Continue reading

Bashir Flight Leaves ICC in Stalemate

By Dr Miša Zgonec-Rožej*

Omar Al Bashir

Omar Al Bashir

South Africa’s failure to arrest the Sudanese president is the latest incident in a troubled relationship between the court and African states.

Sudan President Omar Al-Bashir was allowed to leave South Africa on 15 June  in defiance of a temporary order issued a day earlier by the High Court in Pretoria, which required South African authorities to prevent him from leaving the country until an application submitted by a human rights group was heard by the court. Just hours after Bashir’s departure from South Africa after attending the African Union (AU) summit in Johannesburg, the court ordered that President Al-Bashir be arrested and surrendered to the International Criminal Court (ICC).

As a state party to the ICC, South Africa thereby breached its obligation under the Rome Statute to execute the ICC arrest warrant issued against the president. This highlights an ongoing problem for the ICC: without states’ cooperation, and lacking its own enforcement mechanisms, the court is forced to leave cases suspended indefinitely.

 Lack of immunity

President Bashir has been sought by the ICC for his alleged involvement in genocide, crimes against humanity and war crimes committed during the conflict in Darfur.  Sudan is not a party to the Rome Statute which established the ICC, but the ICC has jurisdiction as a consequence of a 2005 referral to it by the UN Security Council of the situation in Darfur. The African Union, however, has continually opposed the prosecution by the ICC of heads of states during their term of office. The AU has requested the suspension of proceedings against President Bashir and called upon AU members not to arrest and surrender him. Continue reading

Twenty Years Since Srebrenica: No Reconciliation, We’re Still At War

by Refik Hodzic*

Image: TOPSHOTS-BOSNIA-WAR-SREBRENICA-ANNIVERSARYRight now, people in the Balkan region are still living a war, this time for the ‘truth’ about ethnic superiority that will shape the attitudes of future generations.

Bosnia and Herzegovina is about to mark the twentieth anniversary of the Srebrenica genocide – a somber moment of remembrance, seen by many as an opportunity to promote the notion of reconciliation between the country’s ethnic groups. The United Kingdom seems to be the leading proponent of such an approach, with a draft resolution commemorating Srebrenica already circulating among the Security Council members and the ‘interested states,’ primarily Bosnia and Herzegovina and Serbia.

However, a brief glance at the public discourse around the anniversary paints a very different picture, one of no political agenda for reconciliation, of no social project aimed at overcoming the legacy of the conflict from the ‘90s, of a continuing struggle for ethnic dominance. Indeed, can we constructively talk about reconciliation in a country still gripped by war?

It is not a war for territory anymore, with the cannons having fallen silent 20 years ago with the signing of the Dayton Peace Accords, but it is a war nonetheless. A war fought by ‘other means,’ a vicious fight for the dominant narrative of the past, for the ‘truth’ as the foundation of political projects largely rooted in wartime goals of ethnic separation and dominance. This war is mainly fought out in political arenas, but also in the media, in classrooms, churches and mosques, at family dinner tables, and its consequences are bound to have a lasting impact on the region’s stability. Continue reading

Letpadaung Convictions Taint the Legal System in Myanmar

by Vani Sathisan, International Commission of Jurists (ICJ) International Legal Adviser, and Hayman Oo, ICJ Legal researcher, in Yangon

Letpadaung Copper Mine

Letpadaung Copper Mine, Myanmar

“They can imprison my body, but never my mind,” U Nay Myo Zin told us when we asked him whether he expected to be released, right before police led him into the Dagon Township courtroom for the verdict last week. The Court was teeming with police guards and supporters of the accused chanted slogans at the police, “not to kowtow to the military government” and that “the legal system lacks principle.” U Nay Myo Zin then added, “I will never surrender.”

He was one of the six human rights activists, besides Daw Naw Ohn Hla, Daw Sein Htwe, Ko Tin Htut Paing, Daw San San Win and U Than Swe, who were sentenced to four years and four months in prison with hard labour.

Their conviction, after a trial that didn’t meet basic standards of fairness and due process, highlights the tremendous pressure on the country’s judiciary at a time when Myanmar desperately needs to show improvements in the rule of law. Continue reading