November 2nd, 2013 by Julien Maton
by Sergey Vasiliev*
In late July 2013, the Guardian reported that the Simon Wiesenthal Centre (SWC), a global Jewish NGO, had launched a poster campaign in Germany requesting the public to assist in identifying and bringing to justice the last surviving alleged perpetrators of crimes under the Nazi regime. Two thousand posters were hung in the streets, featuring a sinister black-and-white image of the most horrific dead-end the modern-era humankind has seen: the snow-covered rail tracks approaching the gate of the Auschwitz II-Birkenau extermination camp. The inscription underneath the photo reads, in German:
‘Late but not too late. Millions of innocents were murdered by Nazi war criminals. Some of the perpetrators are free and alive! Help us take them to court.’
In our information age, news about this publicity campaign was quickly overflown by the deluge of stirring updates from the hectic world of international criminal justice, preoccupied with events far more recent than the Nazi crimes. But the campaign should give us a reason for retrospection.
International Criminal Law (ICL) enforcement finds itself at the turn of institutional generations and in the throes of a ‘mid-life crisis’. Twenty years into the project’s renaissance, the tribunals continue to experience a daunting reality: the accomplishment of their mandate to achieve limited accountability for (some) international crimes is held hostage to the vagaries of politics, which demarcate the playing field. To an even greater extent than its United Nations Security Council (UNSC)-sponsored predecessors, the International Criminal Court (ICC) depends on the bona fide cooperation of states for evidence and arrests. This cooperation is in many situations faltering or not forthcoming for exactly the same reasons why the Court becomes seized with a matter in the first place: inaction by states or their unwillingness or inability to genuinely investigate and prosecute crimes themselves. In Kenya and elsewhere, the Court is struggling to do its job amid clamorous accusations of illegitimacy and a sharp decline in political support. This state of affairs does not project bright prospects for the effectiveness and viability of the system, and its less patient proponents may soon be pushed to feel disillusioned, cynical, or even demoralized. Continue reading ‘´Operation: Last Chance´, Dilemmas of Justice, and Lessons for International Criminal Tribunals’
October 31st, 2013 by Julien Maton
by Max du Plessis*
Hissène Habré was the president of Chad from 1982 until he was deposed in 1990. He has been living in exile in Senegal since 1990. He was indicted there in 2000 and is under house arrest at the close watch of elite Senegalese armed forces.
During more than two decades of exile, Habré has been the target of numerous parties seeking justice for crimes against humanity, torture and war crimes allegedly committed by him in Chad during his period in office, with recourse sought in a multitude of regional, national and international tribunals.
Matters have now culminated in a decision of the World Court, the International Court of Justice (‘ICJ) sitting in The Hague. In Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment of 20 July 2012, the ICJ ruled on Belgium’s application to the Court to end a long dispute with Senegal over the duties upon Senegal in respect of Habré and the crimes that he has been accused of committing. The entire chronology of the Habré dispute has not been dissected here; only the tipping points most relevant to Belgium’s application to the ICJ are discussed.
Belgium’s application against Senegal in the ICJ brings to the fore many pressing issues around the interpretation and application of the international law and policy relating to human rights abuses, the fight against impunity and the enforcement of international criminal norms. It also highlights questions more generally about commitment to the international legal order, and compliance with decisions of the ICJ. Continue reading ‘The Slow-Grinding Wheels of International Criminal Justice: the Hissen Habré Dispute’
October 30th, 2013 by Julien Maton
By Mahomed Jivraj
Kenyan Deputy President William Ruto
On Friday 25 October, the Appeals Chamber unanimously reversed the decision of the Trial Chamber, which had ruled that Kenyan Deputy President William Ruto could be excused from continuous presence during his trial for crimes against humanity. The Trial Chamber had held that Ruto could be absent from the court room for the entirety of the proceedings, with the exception of the opening and closing statements, victims testimonies, the delivery of judgement; and, if convicted, the sentencing, victims impact hearing, and reparation hearing; as well as any other attendance the Chamber ordered.
The Appeals Chamber found that the majority in the Trial Chamber was correct in finding that “in exceptional circumstances the Chamber may exercise its discretion, on a case-by-case basis, to excuse an accused person from continuous presence at trial”. Article 63(1) – which states that “the accused shall be present during the trial” – did not, therefore, act as an “absolute bar in all circumstances to the continuation of trial proceedings in the absence of the accused”. Continue reading ‘ICC Appeals Chamber Rules Ruto Must Attend Trial’
October 29th, 2013 by Julien Maton
by Dr Miša Zgonec-Rožej
At the African Union (AU) extraordinary summit on 11 and 12 October 2013, convened to discuss the AU’s relationship with the International Criminal Court (ICC), no decision was taken on the withdrawal of African States from the Rome Statute of the ICC. AU member States, however, agreed that Kenya, with the support of African States, should ask the UN Security Council to defer the trial of Kenyan President Uhuru Kenyatta which is scheduled to start on 12 November 2013.
UN Security Council deferral
Article 16 of the Rome Statute of the ICC provides that the Security Council may adopt a resolution under Chapter VII of the UN Charter requesting the ICC to suspend an investigation or prosecution for a period of 12 months. A Chapter VII resolution can be adopted after the Security Council has determined, in accordance with Article 39 of the UN Charter, the existence of a threat to peace and security and provided that a deferral is necessary for the maintenance of peace and security. A deferral may be renewed by the Security Council under the same conditions.
The AU and Kenya have previously requested the UN Security to defer the proceedings against Kenyan leaders but their requests have so far not been acted upon. Given the increasing international support for Kenya following the attack on the Westgate shopping mall, and Kenya’s important role in regional security and stability, it is possible that the Security Council members will agree that suspending the prosecutions would serve the interest of international peace and security. The deferral, however, even if it were renewed, would not terminate the trials indefinitely but could only postpone them. Continue reading ‘Kenya Cases: Tensions Between the AU and the ICC’
October 16th, 2013 by Julien Maton
by Michael Shank and Vani Sathisan*
Aung San Suu Kyi giving a press conference in Singapore last September
Last week, the Elders, led by ex-U.S. president Jimmy Carter, called for an end to impunity over the anti-Muslim attacks in Myanmar and the “meaningful realization of the right to freedom of religion.” But their three-day visit with reformist President Thein Sein, religious leaders and civil society groups was not the only international appeal for increased attention.
In her first visit to Singapore, this month Nobel Peace Prize Laureate and Myanmar opposition leader Aung San Suu Kyi also offered up a solution to current problems of sectarian violence, corruption, a crippled judicial system and illegal land grabs that plague her resource-rich but impoverished country: the rule of law.
It makes sense that Suu Kyi would say this. She is, after all, the Chairperson of the Lower House Committee for Rule of Law, Peace and Tranquility in the Myanmar Parliament. Changing the constitution to “provide the military with a privileged space in national politics,” cleaning up the courts, properly training law enforcement officials and helping judges to “enhance their integrity,” she said, were prerequisites to firming up the rule of law.
Law wasn’t the only order of the day. Business was being held accountable too, an appropriate nod for market-friendly Singapore. While citing the importance of the rule of law in wooing foreign capital investments into Myanmar, Suu Kyi also had a straightforward message to would-be investors: “I would like you to continue your investments. But make them as responsible as possible.” Continue reading ‘The Next Step for Myanmar’
October 10th, 2013 by Julien Maton
by Max du Plessis and Sivu Maqungo*
The International Criminal Court
On 13 October 2013, the African Union (AU) will debate accountability for heads of state accused of genocide, war crimes and crimes against humanity. But instead of discussing how to bring such individuals to justice for their crimes, it seems the AU’s debate will consider how to ensure that some accused escape accountability, at least insofar as any trial before the International Criminal Court (ICC) is concerned.
For anyone who has missed the saga to date, the ICC is the world’s first permanent international criminal court, situated in The Hague. Since its inception in 2002, the ICC’s cases have been exclusively focused on African atrocities (sadly, there is an abundance of them on this continent). This reality is not however entirely of the Court’s own making. There are three ways in which cases can come before the ICC, two of which are beyond the control of the Court: states can ask the ICC prosecutor to investigate a case; or the prosecutor can initiate an investigation in a state that is a member of the ICC’s Rome Statute; or the UN Security Council can refer a case for investigation to the prosecutor.
Despite the fact that most African cases before the ICC were referred by African states themselves, the Court’s apparent focus on Africa has drawn the ire of the African leaders and the AU. It has also, worryingly, raised legitimate concerns about the ICC’s commitment to seeking justice beyond Africa.
The AU’s relationship with the ICC turned sour when, in 2008, the ICC prosecutor announced the Court’s intention to seek an indictment of President Omar al-Bashir of Sudan for alleged genocide in Darfur. The relationship has hit rock bottom with the ICC’s recent efforts to hold Kenyan leaders responsible for crimes committed during Kenya’s post-election violence in 2007-8. Continue reading ‘Africa Must Strengthen the International Criminal Court for its Own Sake’
September 14th, 2013 by Raphaelle Rafin
by Dr Miša Zgonec-Rožej
Shorter version of this comment is published at Chatham House
On Tuesday, 10 September 2013, the trial of Kenya’s Deputy President, William Ruto and his co-accused, former radio presenter, Joshua Sang, began before the International Criminal Court (ICC). The trial of Kenya’s President, Uhuru Kenyatta, is scheduled to start on 12 November 2013. Just a week ago, on 5 September 2013, the Parliament of Kenya approved a motion for the withdrawal of its membership from the ICC. If the bill is adopted, Kenya will become the first State Party to withdraw from the Rome Statute of the ICC.
Implications of the withdrawal for Kenyatta and Ruto’s trials
Walkout as Kenyan MPs vote to withdraw from Rome Statute ©Standard Digital News
The Rome Statute of the ICC allows a State Party to terminate its ICC membership by written notification addressed to the Secretary-General of the United Nations, who acts as a depository of ratifications. The withdrawal, however, takes effect one year after the date of the receipt of the notification. Article 127 of the Rome Stature clarifies that a State Party is not discharged, by reason of its withdrawal, from the obligations arising from the Statute while it was a Party to the Statute.
Kenya’s withdrawal would thus have no effect on the criminal proceedings against Kenyatta and Ruto which commenced prior to the date when the withdrawal might become effective. Kenya would continue to be under the obligation to fully cooperate with the ICC in connection with the trials of its two leaders. But as soon as the withdrawal would come into effect, it would preclude any investigation and prosecution of future international crimes by the ICC. Continue reading ‘The start of the trial in Prosecutor v. Ruto and Sang at the ICC has been overshadowed by Kenya’s decision to withdraw from the ICC’
July 4th, 2013 by Julien Maton
The authors requested anonymity.
On 24 June 2013, Mr. Serge Brammertz, on behalf of the Office of the Prosecutor (‘OTP’), issued a statement suggesting that it was not “appropriate or helpful to enter in the debate” concerning the propriety of Judge Harhoff’s correspondence to his 56 friends (describing his disenchantment with recent acquittals at the ICTY). Issuing this “non-statement”, whilst at the same time expressing trenchant discontentment with the same three judgments as those critiqued by Judge Harhoff – accompanied by a blunt exhortation to the ICTY to “through its remaining work… convincingly demonstrate the legitimacy of its processes, the high quality of its verdicts and its capacity to secure justice for victims” – might be thought an ambiguous approach to the important legal issues raised by the controversy. At the least, and as must have been plain to those who drafted this carefully worded statement, such mixing of issues was never likely to put any meaningful distance between the OTP as an institution and the content of Judge Harhoff’s email. Be that as it may, it appears that on 1 July 2013 Mr Šešelj filed a motion to disqualify Judge Harhoff for a lack of impartiality. Šešelj may have forced the OTP to come off the proverbial fence. The Prosecution must now comment and cannot afford the luxury of their curiously ambiguous “laissez faire” approach to the legal issues at hand.
Of course, this approach was unsustainable even prior to the filing by Mr Šešelj. The legitimacy of the ICTY’s processes in the face of such a forceful (albeit wholly unsubstantiated) critique by Judge Harhoff required that the issues were dealt with transparently and decisively to ensure that the damage that has been done to the perception and legacy of the ICTY may be limited. If the ICTY is to inspire confidence in the high quality of its verdicts and its capacity to secure justice for victims, as urged by the Prosecution, then it needs to act to investigate Judge Harhoff’s claims and the Prosecution, as ministers of justice in the proceedings, should lead the way. Discretion is not always the better part of valour, least of all in a judicial process that relies upon justice not only being done but, as importantly, being seen to be done. Continue reading ‘Judicial Disquiet at the ICTY: Discretion Is Not Always the Better Part of Valour’
June 10th, 2013 by Julien Maton
by Wayne Jordash and Scott Martin
The International Criminal Tribunal for the former Yugoslavia
On 2 June 2013, an Op-Ed in the New York Times discussed the International Criminal Tribunal for the former Yugoslavia (‘ICTY’) and its purportedly damaged legacy. The catalyst for this contribution was recent acquittals at the ICTY, latterly in the case of Prosecutor v. Stanišić & Simatović. As counsel for Mr. Stanišić, we read with interest the emotive views expressed in response to the acquittal and the concerns advanced by this contributor and others concerning what the acquittal meant, not just for the ICTY, but also for international criminal justice as a whole.
In this Op-Ed, the author challenged the institutional integrity of the ICTY on the basis of a handful of trial and appellate (acquittal) judgments over the past year. He wrote that these judgments have set too high a standard for conviction, one that fails to “bring justice to the victims, peace to the region, and a measure of truth to the story”. While unclear what the author considers is the right legal threshold (the author appeared to argue for a conviction in the case of Prosecutor v. Stanišić on the basis of a mode of criminal liability (superior responsibility) that was not even alleged and, in the latest contribution, that associating with perpetrators of crimes is the same as committing crimes), we respectfully disagree with the premise underlying the piece – that acquittals must be based on an erroneous approach to the law and are bad for the business of international justice. Continue reading ‘Acquittals at the ICTY: “Shows the Health of the System”’
June 2nd, 2013 by Julien Maton
by Christian Axboe Nielsen
In my previous article on this blog, I argued that both international criminal justice and the international public would benefit if the ICC and other international criminal courts and tribunals had an office of the historian. While writing that article, I began to wonder whether it might not also be advisable for there to be a Freedom of Information Act for international criminal justice institutions. After all, it is in many, if not most, cases easier to obtain documents from governments in Western Europe and North America than it is to do so from international organizations. Transparency is one of the hallmarks of the judicial process in the modern world, and international criminal courts and tribunals are in principle committed to openness in court proceedings. Yet in practice, they often fall far short of this goal.
Part of the problem begins already at the investigative stage. Eager – and sometimes desperate – to get an investigation going, the Office of the Prosecutor (OTP) sometimes agrees to accept large collections of information under conditions of confidentiality and restricted use. During the early years of the ICTY, national governments, nongovernmental organizations and international organizations provided vast quantities of documentation to the Tribunal under Rule 70 – “Matters Not Subject to Disclosure.” Although the drafters of Rule 70 must surely have envisaged its use for sensitive intelligence or other confidential material used only for lead purposes, it quickly became apparent that some of the generous providers of information to the ICTY provided information subject to Rule 70 by default. Much of this material should never have been confidential in the first place but now risks remaining so.
Perhaps the best example of this were the thousands of pages of digests of Yugoslav media reports provided by the US government from its Foreign Broadcast Information Service (FBIS). Now (somewhat ironically) renamed the Open Source Center, the collections of translated Yugoslav media reports were invaluable to the nascent Tribunal – but the information they contained was anything but confidential. All of these reports had previously been freely transmitted by various media outlets in Yugoslavia. Nevertheless, the entire collection of FBIS material was provided subject to Rule 70. Only in its latter years did the ICTY become somewhat more assertive and selective in its willingness to accept documents under Rule 70. Continue reading ‘A Freedom of Information Act Is Needed for International Criminal Courts and Tribunals’
May 26th, 2013 by Julien Maton
by Wayne Jordash, Scott Martin and David Martini
On 17 April 2013, the Supreme Court of the United States (“Supreme Court” or “Court”) issued its long awaited Kiobel opinion. In a 9-0 ruling, the Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”) was narrowly construed to limit the extraterritorial reach of US federal courts. Human rights activists fear the decision closes the door on a variety of cases that could have relied upon the ATS to access US federal courts in obtaining civil remedies against multinational corporations operating overseas.
However, this opinion needs to be carefully scrutinised before gloomy predications about the future might be allowed full vent. Whilst the Court was clear that the presumption against extraterritorial application applies to the ATS, the decision still “leave[s] open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute”. According to the reasoning of Court, there may still be room for human rights litigation if the interests “touch and concern” the US with “sufficient force”. Justice Breyer’s concurring opinion, although only persuasive, reinforced this potential, noting that the ATS may apply where American interests are “substantially and adversely affected”.
Kiobel v. Royal Dutch Petroleum Co. was a class action lawsuit brought by Esther Kiobel, a Nigerian national, and other Nigerian nationals residing in the US (“Petitioners”) against Royal Dutch Petroleum, a foreign corporation, and its subsidiaries (“Respondents”) for alleged violations in Nigeria under the ATS. The Petitioners were claiming health, environmental and other human rights violations within Nigeria arising from the Respondents’ oil exploration activities. The Petitioners accepted that the Federal Republic of Nigeria (“Nigerian Government”) was responsible for the exploration and development rights, but alleged that the Respondents colluded with the Nigerian Government in the use of military force upon protesters, including beating, raping, arresting and killing residents and destroying or looting their property. Accordingly, it was alleged that the Respondents aided and abetted the Nigerian Government, particularly its military, in violation of the Petitioners’ human rights, including through the commission of crimes against humanity: extrajudicial killings; torture and cruel treatment; arbitrary arrest and detention; violations of the rights to life, liberty, security and association; forced exile; and the destruction of property. Continue reading ‘The Kiobel Judgement: Pirates and Modern Day Torturers – What a Conundrum!’
May 4th, 2013 by Julien Maton
by Jennifer Holligan & Vani Sathisan*
An Internationalised Cambodian Court
The Extraordinary Chambers in the Courts of Cambodia
Between 1975 and 1979, the ultra-Maoist Khmer Rouge forcibly evacuated Cambodia’s urban centres and enslaved the population in rural cooperatives that were designed to transform the nation into an agrarian society. To this end, the regime separated families, prohibited religion, shut down educational institutions, abolished all human rights, and adopted policies to eliminate intellectuals and ethnic and religious groups, such as the Vietnamese, Khmer Krom, and Cham minorities. These policies resulted in the execution and death of almost a quarter of the population.
By an Agreement between the Royal Government of Cambodia and the United Nations, the Extraordinary Chambers in the Courts of Cambodia (ECCC) was established in 2003 as an internationalised tribunal to hold perpetrators of the Khmer Rouge regime accountable. The ECCC has jurisdiction over certain crimes set out in its National Penal Code such as murder, religious persecution and torture, as well international crimes of genocide, war crimes and crimes against humanity.
These crimes are included in the Closing Order and Indictment against the defendants in ‘Case 002’, which charge former senior leaders of the regime for their involvement in the atrocities. However, the trial proceedings for this case – commonly referred to as first mini trial ‘002/01’ – and related judicial decisions have fallen short of victims’ expectations in several respects.
Impossible to Make Case 002 ‘Representative’?
22 September 2011 Severance Order
Since the beginning of the current trial proceedings, which many feel may be the first and last mini trial for Case 002, its scope has been arbitrarily limited by a decision issued by the Trial Chamber (“Severance Order”) on 22 September 2011. This Severance Order has profoundly limited the evidence put forward by witnesses and civil parties at trial. Continue reading ‘Have a Trial by Relevance, Not Severance – The ECCC’s Case 002′
April 30th, 2013 by Julien Maton
by David Tolbert
The Constitution Project’s bipartisan Task Force on Detainee Treatment has found that the United States government engaged in the widespread use of torture against suspects detained during the “War on Terror.” Its 577-page report documents widespread abuses against detainees, including prolonged, arbitrary detention; physical and sexual abuse; enforced disappearance by way of secret transfer to undisclosed locations (“extraordinary rendition”); and other cruel, inhuman, and degrading treatment or torture.
The independent panel of distinguished legal and security experts, former members of Congress, academics, and diplomats concluded that there had never before been “the kind of considered and detailed discussions that occurred after September 11, directly involving a president and his top advisers on the wisdom, propriety and legality of inflicting pain and torment on some detainees in our custody.” And yet, “despite this extraordinary aspect, the Obama administration declined, as a matter of policy, to undertake or commission an official study of what happened, saying it was unproductive to ‘look backwards’ rather than forward.”
This posture, if maintained, runs contrary to the US government’s repeated assertions of its commitment to human rights as well as its obligations under law, including as a signatory of the United Nations Convention against Torture. To regain its creditability in the eyes of the world, the government must take steps to acknowledge and address past violations and provide redress to victims of US-sanctioned abuses. This is the minimum that international law demands. Decades of American discourse in support of human rights ring hollow in the silence of US inaction on these abuses.
The International Center for Transitional justice, through its Accountability Project, and other human rights groups have consistently advocated for an official inquiry into allegations of US-sanctioned torture. Senator Patrick J. Leahy, of Vermont, proposed the establishment of a truth commission to examine allegations of detainee abuse following the September 11 attacks as far back as February 2009; but Congress, shamefully, has failed to act. Continue reading ‘United States Must Ensure Accountability for “War on Terror” Abuses’
April 17th, 2013 by Julien Maton
Reconciliation should focus on what it takes to restore the trust of citizens in each other – and in the state itself.
by David Tolbert
The UN General Assembly (Photo: AFP)
Today, on April 10*, the UN General Assembly (UN GA) is holding a thematic debate on the role of international justice in reconciliation processes. The debate was called by UN GA President Vuk Jeremic, of Serbia, in the wake of the recent acquittal of Croatian General Ante Gotovina by the International Criminal Tribunal for the Former Yugoslavia (ICTY). Unfortunately, it has become clear that the real purpose of this debate is directed at undermining the ICTY, rather than to discuss an important issue, not only in the Balkans, but in a growing number of countries.
Experience shows that by holding to account those who have committed serious crimes, criminal justice processes demonstrate that no one is above the law and mark a break with a past of abuse and horrendous crimes. Through prosecutions, a number of societies have shown that human rights are to be taken seriously and victims can feel genuinely protected.
However, the relationship between criminal justice mechanisms, like the ICTY, and reconciliation has been blurred by loose discussion by court officials and others. Claims that these judicial institutions can contribute in some ill-defined way to reconciliation are not always anchored in a clear understanding of criminal justice, nor do they have a normative basis.
While the UN Security Council did mandate the ICTY to “contribute to the establishment and maintenance of a lasting peace” in the former Yugoslavia, it never defined – how? How was a court that was established as a deadly inter-ethnic conflict raged on (and was yet to see its worst atrocities, including the Srebrenica genocide) to act as a tool for reconciliation? And just as importantly, what conception of reconciliation did the Security Council have in mind? These questions deserve serious examination, as we have seen similar expectations set for other international courts, including the International Criminal Court (ICC). Continue reading ‘Can International Justice Foster Reconciliation?’
April 12th, 2013 by Raphaelle Rafin
Une opinion de Jérôme de Hemptinne, Juriste au Tribunal spécial pour le Liban*
Box des juges à la Cour pénale internationale. Illustration Jean Harambat
Un consensus semble émerger au sein de la communauté internationale pour que la CPI (Cour pénale internationale) exerce toujours plus de responsabilités. Elle est aujourd’hui saisie d’exactions perpétrées dans huit pays dont le Congo, la Côte d’Ivoire, la Libye ou le Mali. D’autres États, comme l’Afghanistan ou la Géorgie, pourraient bientôt rejoindre cette liste. Le nombre d’accusés déférés devant cette cour devrait donc inévitablement s’accroître, comme l’illustre la récente reddition de l’ancien chef rebelle congolais, Bosco Ntaganda. Par ailleurs, des gouvernements militent pour un élargissement de la compétence de la CPI à des crimes comme le terrorisme ou à la piraterie.
Cette évolution s’inscrit dans la continuité d’une conception ambitieuse du rôle de la CPI prônée depuis sa création. En effet, des responsabilités, non seulement judiciaires, mais également politiques et réparatrices lui ont été attribuées. Ainsi, avant de se saisir d’une affaire, au terme d’échanges complexes avec l’État compétent – qui s’inscrivent dans le mécanisme dit de “complémentarité” -, la CPI doit-elle prendre la décision politique de déterminer si les juridictions de cet État ne sont pas aptes à juger cette affaire par elles-mêmes et, le cas échéant, de se dessaisir en leur faveur. Continue reading ‘Hemptinne: “Il faut réformer la Cour pénale internationale”’
April 8th, 2013 by Julien Maton
Splitting the hairs between corporate responsibility in Myanmar and Cambodia
A comment by Mahdev Mohan and Vani Sathisan
People sit on top of their inundated homes, along Boeung Kak Lake, Cambodia.
To many, Cambodia and Myanmar are at different points on the arc towards democracy and development. Hun Sen’s Cambodia is often viewed as an authoritarian state mired in endemic corruption. Myanmar is regarded as an emerging success story, transitioning from military dictatorship to democratic rule.
But the similarities in both countries regarding business-related human rights abuses are striking. Two high profile land-grabbing cases concern the stalled development of Phnom Penh’s Boeung Kak Lake and the confiscation of farmlands in Myanmar’s western Rakhine state.
Shukaku Inc – owned by Cambodian ruling party senator Lao Meng Khin – reportedly filled the historic lake and acquired vast tracts of protected land in the area for a real estate development project with a Chinese state-owned enterprise. More than 4,000 families around Boeung Kak Lake, since 2008, have been forcibly relocated without adequate compensation. Today, Boeung Kak evictees remain under close surveillance by Cambodian authorities and are routinely subject to malicious prosecutions. In December 2012, human rights defender and Boeung Kak Lake evictee Yorm Bopha was sentenced to three years for ‘committing intentional violence’, despite the apparent absence of credible evidence to support the charges against her.
In Myanmar’s Rakhine state, traditionally cultivated agrarian land has also been unjustly confiscated. Myanmar’s armed forces have seized these farmlands to make way for the Shwe Gas Project, a joint venture between China National Petroleum Corporation and Myanmar’s Oil and Gas Enterprise. The project envisions the construction of oil and gas pipelines that will span 800 kilometres across Myanmar and that will cut across 21 townships. Besides displacing vulnerable communities and affecting their livelihoods, such relentless land acquisition will also have a detrimental environmental impact. Continue reading ‘Land Grabs Still Plague Myanmar and Cambodia’
April 6th, 2013 by Julien Maton
by Amy Sheils*
After gaining independence from France in 1960, Mali endured decades of droughts, rebellions, and military dictatorship following a coup in 1968. The latest rebellion started in January 2012 when the National Movement for the Liberation of Azawad (MNLA) – a secular group representing nomadic Tuareg and other ethic groups from northern Mali – began an insurgency to reclaim land and cultural rights.
After a military coup in the south in March 2012, the MNLA took control of the north and proclaimed Azawad’s independence from Mali. The African states and the international community rejected the partition of Mali. With greater financial backing, the Islamist groups Ansar Dine, The Movement for Unity and Jihad in West Africa (MUJAO), and Al Qaeda in the Islamic Maghreb (AQIM) soon ousted the MNLA from the main northern cities and imposed sharia law in the areas they controlled.
On 20 December 2012 the United Nations Security Council Resolution 2085 was adopted unanimously, authorising the deployment of the African-led International Support Mission to Mali. When the Islamists advanced southwards and captured the town of Konna, the Malian government requested military intervention from France, which began on 11 January 2013. French and Chadian troops, with the support of the MNLA, overran Islamist strongholds in the north. Continue reading ‘Non-State Armed Actors Respect International Criminal Law: MNLA’
February 19th, 2013 by Raphaelle Rafin
by Wayne Jordash – iLawyer
The concept of a court’s legacy has been defined by the United Nations (UN) as the “lasting impact on bolstering the rule of law in a particular society, by conducting effective trials to contribute to ending impunity, while also strengthening domestic judicial capacity.” Unless we are supposed to extrapolate from the word “effective”, this UN definition curiously fails to mention the most critical platform for a meaningful and sustainable legacy – the requirement that the trials are, and are perceived to have been, fair in their inception and process. Effective, but selective and unprincipled, trials might not quite deliver the lessons in the rule of law or provide the demonstration effects that are presumed to play their part in ending impunity. As the current crop of international or hybrid courts complete their work, is this not the critical criterion upon which any long lasting or otherwise robust legacy must rest?
Women’s rights activists meet in Kenema, eastern Sierra Leone, November 2012. Glenna Gordon/ICTJ
The limitation of this UN definition and the need for the ongoing legacy conversations to be embedded in these considerations was apparent at the recent ICTJ sponsored conference “Exploring the Legacy of the Special Court for Sierra Leone” held in Freetown on the 6-7 February 2013. Attended by a range of international humanitarian and criminal law actors, many with considerable experience of working at the Special Court for Sierra Leone (SCSL). These were accompanied by an equally impressive array of Sierra Leonean civil and academic society, including Marie Bob-Kandeh from the “Sierra Leonean Association of Market Women”, Sulaiman Jabati, the Executive Director of the “Coalition for Justice and Accountability” and Joe D. Alie from the once- famous Sierra Leone Fourah Bay College, as well as a range of other academic and interested parties. Of the subjects that gave rise to the most vigorous debate within the largely Sierra Leonean audience was the discussion concerning fair ‘case selection’ – viewed as an integral aspect of a broader enquiry, namely, whether those who were selected had received a fair trial. Continue reading ‘Case Selection in ICL and the Legacy of Anomalies’
February 11th, 2013 by Raphaelle Rafin
by Dr. Miša Zgonec-Rožej
On Friday, 8 February 2013, Senegal officially inaugurated the Extraordinary African Chambers that has been set up within the Senegalese judicial system to try the former president of Chad, Hissène Habré. Habré is allegedly responsible for international crimes committed during his reign in Chad, including thousands of political killings and systematic torture. Habré, who came to power in 1982, fled to Senegal after being ousted in 1990 by the current president of Chad, Idriss Déby Itno, and has since been living there in exile.
Victims of former Chadian dictator Hissène Habré ©2007 Klaartje Quirijns
Despite the victims’ attempt to bring Habré to justice, Senegal has continually avoided instituting any criminal proceedings against the former dictator. In July 2012, the International Court of Justice (ICJ) in the case concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) ordered Senegal to submit the case to its competent authorities for the purpose of prosecution, if it did not extradite him to Belgium which has been seeking his extradition since 2005, as required by Article 7(1) of the UN Convention against Torture. Continue reading ‘Opening of the Extraordinary African Chambers to try the former president of Chad, Hissène Habré’
February 9th, 2013 by Julien Maton
by Daniel Robinson*
The United Nations (“UN”) Human Rights Council has issued a report warning Israel to cease settlement activity in the West Bank or potentially face legal action at the International Criminal Court (“ICC”).
The report, released on 31 January 2013, states that Israel is in violation of international law and calls for both a cessation of all settlement activity ‘without preconditions’ and the initiation of ‘a process of withdrawal of all settlers’. Turning to the ICC, the report highlights the court’s jurisdiction over the settlements under the Rome Statute, stating: “Ratification of the statute by Palestine may lead to accountability for gross violations of human rights law and serious violations of international humanitarian law and justice for victims”.
The report follows an historic vote in November by the UN General Assembly (“the Assembly”) recognising Palestine as a non-member observer state, a step up from its former status. Its timing had agreeable symmetry, occurring as it did on the 65th Anniversary of the United Nations vote for a plan of partition of British-mandated Palestine into what would become Arab and Israeli states. Although Palestine cannot vote at the Assembly as a non-member and enjoys the same status as the Vatican, the only other non-member observer state, the change of designation to ‘state’ may prove of more than simply symbolic importance. Continue reading ‘Legal Avenues for Palestine?’
January 21st, 2013 by Raphaelle Rafin
by David Tolbert* – President of the International Centre for Transitional Justice
(c)Pep Montserrat for The National
Recent proposals on using transitional justice as a means of stabilising Syria in the aftermath of the eventual fall of the Assad regime – including by providing incentives for loyalists to give up a possible “fight to the death” in Damascus – are a significant development in the debate on Syria.
As someone who deeply believes in the importance of justice as the basis for recovery and sustainable peace in any society confronting a legacy of mass atrocity and repression, such as Syria, the proposals confirm that the concepts of transitional justice have ceased to be seen simply as idealistic and philosophical notions, but are credibly making their way into the politics of peacemaking.
Still, we must proceed with a great deal of caution and examine the preconditions necessary for measures of justice to have their desired effect. What levels of consultation and infrastructure will be needed for justice to have a genuine role in restoring trust between the state and its citizens? What will be needed for victims to feel that justice means something more than a short-term move in the chess game of post-war politics? Continue reading ‘After war, Syrians will need justice and forgiveness. It will not be easy’
January 16th, 2013 by Julien Maton
by John RWD Jones* - iLawyer and Co-Counsel to Mustafa Amine Badreddine before the STL
The Special Tribunal for Lebanon
The Special Tribunal for Lebanon (STL) was created by the UN Security Council (UNSC) to try those responsible for killing former Lebanese Prime Minister Rafiq Hariri and 22 others in a bomb blast on 14 February 2005. The trial is scheduled to start on 25 March 2013, but with the significant absence of any defendants, the only trial which will be held before the STL will almost certainly be a trial in absence.
Four defendants have been indicted – Badreddine, Ayyash, Oneissi and Sabra – all allegedly members of Hezbollah, and counsel have been assigned to each of them. A number of significant motions have been filed by defence counsel to date, including challenges to the legality of the STL and to the decision to proceed to hold trials in absentia. The STL Trial and Appeals Chamber have ruled on these motions, holding that the tribunal was established lawfully and affirming the decision to hold trials in absence.
However, the Appeals Chamber’s reasons for rejecting the challenge to the STL’s legality are unconvincing, given in particular the chamber’s refusal (president Baragwanath (NZ) dissenting) to recognise any power on its part to review the legality of UNSC resolutions at all, and thus to entertain any serious challenge on the issue. Continue reading ‘The STL’s First Steps’
January 10th, 2013 by Raphaelle Rafin
by Alexis Demirdjian* – Legal Officer at the Office of the Prosecutor, ICTY
A version with footnotes and references is available here.
In early 2012, the French Assemblée Nationale adopted a bill criminalizing the denial of genocides, amongst others that of the genocide committed by the Ottoman Empire against Armenians living on its territory, between 1915 and 1918 (hereinafter “the French Law”). Whilst the good will of the French nation and its friendship with the Armenian community is well received by the descendants of one of the most gruesome chapters of the 20th century, one should handle with caution any attempt to hamper freedom of expression.
The Armenian Genocide, Alep 1915 (c)AFP
For several decades, the Armenian community sought recognition from the Turkish government, as the successor or continuing State of the Ottoman Empire, that genocide was committed by the Ottoman leadership during the course of the First World War against its Armenian subjects. The movement bases its claim on the widespread and systematic deportation and killing of civilians which led to the death of a considerable portion of the Armenian population on Ottoman territory, coupled with letters, telegrams and other documents arguably demonstrating the genocidal intent of the leaders at the time of the events. Several States, academic institutions, scholars and writers have supported this movement and, in academic circles, these events are now largely recognized as genocidal acts. Continue reading ‘The French Bill Criminalizing the Denial of the Genocide of Armenians in 1915′
January 7th, 2013 by Julien Maton
by Dr. Guénaël Mettraux
The International Criminal Tribunal for the Former Yugoslavia (ICTY)
The recent acquittals of Messrs Haradinaj, Gotovina and their fellow defendants have been greeted by very public expressions of disapproval from past and present ICTY Prosecutors.
Before she had even read the Gotovina Judgment, a former ICTY Prosecutor expressed the view that the Judgment was wrong and that she had been right all along. More recently, the current ICTY Prosecutor went on record in the Serb media to suggest that the Gotovina Appeals judgment was effectively questionable and that there was enough evidence to convict the acquitted Generals.
Maybe because I am puritanical when it comes to the law or maybe because I was General Gotovina’s appeals counsel, I could not but wonder why Prosecutors would go to the media to contest a judicial decision to which they were a party. Personal vendetta? A way to blame on others misguided decisions to prosecute? Bad judgment?
Assuming for present purposes that these Prosecutors had the best intentions and that they truly believe these judgments to be wrong, were they well-advised to publicise their disapproval? I would suggest not. Continue reading ‘Somewhere Between Revisionism and Reconciliation: Prosecutors Take Issue with ICTY Judgments’
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?’