'Analysis' Articles
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.
Inter-state reconciliation
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?’
December 21st, 2012 by Julien Maton
by Luka Misetic
A version with footnotes and references is available here.
Judges Fausto Pocar and Carmel Agius
On 16 November 2012, the International Criminal Tribunal for the former Yugoslavia (ICTY) established that Ante Gotovina and Mladen Markac are innocent as a matter of law, and that there is insufficient evidence of a Joint Criminal Enterprise to remove the Serb population from Croatia during and after Operation Storm. The Judgement has been criticized in certain limited circles, including Serbian government officials, Serbian academics (Milena Sertio, Miroslav Baros, Marko Milanovic), lawyers representing the Republic of Serbia (Marko Milanovic), former employees of the Office of the Prosecutor (including Carla Del Ponte and Anton Nikiforov) and persons affiliated with former Deputy Prosecutor David Tolbert (Paul Seils, Refik Hodzic). All of these individuals cite the dissenting opinions of Judges Pocar and Agius to justify their criticism of the ICTY in the Gotovina case.
I decided to write this blog post in order to set the record straight. The dissenting opinions of Judges Pocar and Agius are based upon incorrect interpretations of the law, the evidence and the positions of the parties in this case. As I will explain below and in subsequent blog posts, the Majority’s Judgement in this case was grounded not only in the law and the evidence, but also in traditional notions of fair play and substantial justice. Continue reading ‘Dissenting From the Dissenting Opinions of Judges Pocar and Agius’
December 17th, 2012 by Julien Maton
by Rupert Abbott and Stephanie A. Barbour - Amnesty International
- The Extraordinary Chambers in the Courts of Cambodia
Over two years ago, Cambodia’s Prime Minister Hun Sen reportedly told UN Secretary-General Ban Ki-moon that the Khmer Rouge Tribunal’s second trial (Case 002) would be its last. Since then, investigations in Cases 003 and 004 – which involve five individuals suspected of genocide, crimes against humanity and war crimes – have barely progressed.
Mark Harmon, a seasoned prosecutor of war crimes at the International Criminal Tribunal for the former Yugoslavia, has recently been appointed as the new International Co-Investigating Judge at the Extraordinary Chambers in the Courts of Cambodia (ECCC), as the UN-backed Tribunal is officially known. His arrival provides a window of opportunity for prompt, thorough, independent and impartial investigations in Cases 003 and 004.
But should Judge Harmon be obstructed, as his predecessors were, it may not just be Cases 003 and 004 that are undermined. Rather, the entire Tribunal, and its role in strengthening the rule of law in Cambodia will be put at risk.
The saga of Cases 003 and 004
The Cambodian government opposes investigations in Cases 003 and 004 on the grounds that this could fuel “national instability”. Some suspect that the reason for this opposition is concern about what could be revealed during further investigations and potential trials, particularly about the role of current Cambodian government officials during the Khmer Rouge period.
Such political interference – and any resulting impunity – is the antithesis of justice and a breach of the agreement between Cambodia and the UN to establish the Tribunal. Continue reading ‘Khmer Rouge Tribunal: Last Chance to Salvage Justice?’
December 3rd, 2012 by Julien Maton
by Max du Plessis
Associate Professor, University of KwaZulu-Natal, Durban; Senior Research Associate, International Crime in Africa Programme, Institute for Security Studies, Pretoria; Barrister, South Africa; Associate Tenant; Doughty Street Chambers, London
It has become fashionable to criticize the International Criminal Court (ICC) for its exclusive focus on African cases. The critical perception of the ICC and its work in Africa is a problem of history and international politics. Developing nations, particularly from the South, now repeatedly and rightly complain about the skewed power relations reflected in the Security Council. Those power relations – and the imbalance of power within the Council – have come sharply into focus in the case of the ICC. That is because of the role reserved for the Security Council, through the Rome Statute that created the ICC, within the ICC regime.
After a decade of the ICC’s work, we have witnessed as the Security Council referred two African situations to the ICC (Sudan, and Libya) – but has repeatedly failed to do so in respect of equally deserving situations (in relation to crimes committed by Israel, and most recently in respect of the crimes unfolding before our eyes in Syria). Geographically we now have ten years of the ICC’s work, and the reality that all the cases opened by that Court are in Africa. Continue reading ‘Time for Universalizing International Criminal Justice’
November 26th, 2012 by Julien Maton
by Dr Miša Zgonec-Rožej
This analysis is an expanded and modified version of the Chatham House expert comment. If you wish to see it, click here.
The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), on Friday, 16 November 2012, overturned the convictions of two Croatian generals, Ante Gotovina and Mladen Markač, acquitting them of all and any crimes against the Serb civilian population in the Krajina region of Croatia. Two iLawyers, Guénaël Mettraux and John R.W.D. Jones, were members of the Gotovina and Markač defence teams, respectively.
1. Background
Mladen Markač and Ante Gotovina
In 1995, Croatia carried out “Operation Storm”, a military operation to take control over the territory in Croatia’s Krajina region. An estimated 20,000 ethnic Serbs fled their homes and allegedly 150 were killed during the military operation. Before being recaptured by the Croatian Army forces in 1995, the region of Krajina was under the control of the self-proclaimed Republic of Serbian Krajina that had existed since 1991. Two Croatian Serb leaders of the Republic of Serbian Krajina, Milan Babić and Milan Martić, were convicted by the ICTY for their roles in the forcible removal of Croats and other members of the non-Serb population from the Krajina region.
Gotovina, the commander of the Split Military District of the Croatian Army, was the overall operational commander of Operation Storm, while Markač was the Assistant Minister of the Interior and Operation Commander of the Special Police in Croatia. In its judgement delivered on 15 April 2011, the Trial Chamber found that Gotovina and Markač were part of a joint criminal enterprise led by late Croatian President Franjo Tuđman whose common purpose was to permanently remove the Serb civilian population from the Krajina region by force or threat of force. Continue reading ‘Prosecutor v. Gotovina & Markač: Tribunal Acquits Croatian Generals’
October 30th, 2012 by Julien Maton
by Mariya Nikolova
A version with footnotes and references is available here.
Sir David Baragwanath, Judge and President of the Special Tribunal for Lebanon
On 24 October 2012, the Appeals Chamber (AC) of the Special Tribunal for Lebanon (STL) delivered its decision on the Defence challenges to the jurisdiction and legality of the STL.
The AC dismissed the appeals, confirming the Trial Chamber’s (TC) previous ruling that the STL was established as an independent institution (i.e., not a UN subsidiary organ, and not a treaty-based hybrid jurisdiction) by SC Resolution 1757 (2007). The AC adopted the view of the TC ruling that the Security Council did not abuse its powers when adopting Resolution 1757 creating the STL. By virtue of this Resolution, the AC said, the Security Council effectively integrated the provisions of a draft agreement, previously negotiated between the UN and Lebanon but not ratified by the latter.
According to the AC, the Security Council did not therefore impose an agreement on Lebanon (which would have probably been ultra vires), but rather gave its provisions binding effect by virtue of Resolution 1757. Finally, the AC held by a majority that the STL cannot judicially review the Security Council’s actions, not even when they pertain to the question of the legality of the Tribunal.
This followed the somewhat disappointing reasoning of the TC, which had also summarily set aside the Tadic precedent of limited incidental authority to review UNSC resolutions (as well as a host of subsequent international judicial practice). The practical effect of the AC majority’s view is to put beyond the scope of judicial review the actions of the Security Council. From the point of view of persons subjected to its jurisdiction, this directly affects and undermines their rights to access to justice and to an effective remedy in relation to any violation of their rights which might have resulted from the actions of the Council. The majority’s position on that point could also affect the appearance of independence and impartiality of the Tribunal vis-à-vis its political creator.
It is precisely on the issue of judicial review that the Separate and Partially Dissenting Opinion by Judge Baragwanath provides some interesting reflections. While not questioning the “uniquely high status of the Security Council […] and the fact that [it] has primary responsibility for the maintenance of international peace and security, coupled in particular with its expansive powers under Chapter VII” , Judge Baragwanath appropriately asked the question “whether the rule of law requires any, and if so what, scope for some limited review” by the STL? Continue reading ‘STL Judge Baragwanath’s Separate and Partially Dissenting Opinion Contributes to the Ongoing Debate on Judicial Review Powers Over Security Council Resolutions’
October 24th, 2012 by Julien Maton
by Mariya C. Nikolova
A version with footnotes and references is available here.
Introduction
It has been commonly noted that the United Nations and European Union mandated missions in Kosovo lack proper accountability mechanisms for human rights violations committed in the course of their mandate. One of the main criticisms has been that victims of such violations are effectively deprived of a forum before which they can bring their claims, which in itself undermines the goals and aspirations of the organizations and violates their right to have access to justice.
Based on extensive consultations, and taking into account the need for providing redress for possible violations, the European Union established the Human Rights Review Panel (HRRP) in 2009. The HRRP is a non-judicial accountability mechanism endowed with the power to review alleged human rights violations by European Union Rule of Law Mission in Kosovo (EULEX) in the conduct of its executive mandate. The HRRP can make non-binding recommendations on the basis of its findings, and follow up on the implementation of its recommendations with the Head of EULEX.
As such, the HRRP complements other already existing accountability mechanisms in EULEX and is inspired by other recently established accountability bodies – the Human Rights Advisory Panel of the United Nations Mission in Kosovo (UNMIK) and the Ombudsperson Institution in Kosovo. Continue reading ‘The European Union Human Rights Review Panel: A Unique EULEX Accountability Mechanism’
September 26th, 2012 by Anna Bonini
by Philippa Webb
On 25 September, Equatorial Guinea sought to institute proceedings against France at the International Court of Justice. It is the latest in a series of cases brought by African countries against France for purported violations of the immunity of State officials.
Equatorial Guinea's Teodoro Nguema Obiang, for whom the French authorities have issued an arrest warrant (Photograph: Abdelhak Senna/AFP/Getty Images)
Equatorial Guinea claims that France has breached international law through proceedings and investigative measures taken against the President of Equatorial Guinea and the Vice-President, who is also the Minister of Agriculture and Forestry and the son of the President. Guinea makes references to an arrest warrant being issued against the Vice-President and the seizure of property and premises by French judges during an investigation. This is related to the French ‘ill-gotten gains’ investigation targeting three African leaders and their families for alleged embezzlement of State funds, including €160m worth of assets located in France invested in bank accounts, Riviera villas and luxury cars.
The first challenge that Equatorial Guinea faces is establishing the ICJ’s jurisdiction since there is no basis in the Optional Clause nor in the compromissory clause of a treaty. Equatorial Guinea has therefore brought its claim on the basis of Article 38(5) of the Rules of Court, whereby the Applicant State asks the other State to consent to the Court’s jurisdiction solely for the purpose of that case (forum prorogatum).
This provision of the Rules has been invoked three other times in cases against France. The first time was in Certain Criminal Proceedings in France, where the Republic of the Congo complained about French proceedings against its President, the Minister of the Interior and the Inspector-General. France consented to the Court’ s jurisdiction under Article 38(5), but the case was withdrawn by the Republic of the Congo in November 2010 before a judgment could be rendered:
In Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Djibouti alleged that, inter alia, witness summons against the President, the Procureur de la République and the Head of National Security breached international law. France consented to the proceedings and the Court issued its Judgment in 2008, finding that the dignity of the President had not been harmed by the summons and that the required steps for invoking the immunity of the other two officials had not been taken.
(Photograph: www.trekearth.com)
Finally, in 2007, Rwanda tried to institute proceedings against France under Article 38(5) with respect to arrest warrants issued by French officials against Rwanda’s Chief of General Staff of its Defence Forces, the Chief of Protocol attached to the Presidency and the Ambassador of Rwanda to India. It also challenged a request apparently from France to the UN Secretary-General that President Kagame should stand trial at the ICTR.
France did not consent to the ICJ’s jurisdiction under Article 38(5) so the case was never entered onto the docket or ‘General List’ of the ICJ. France apparently lifted the arrest warrants in 2010.
It will be interesting to see how France will react to Equatorial Guinea’s request. If France consents and the case proceeds to Judgment, it will raise fascinating issues of international law, including whether the ICJ’s views on the scope of the immunity of State officials has changed since the Arrest Warrant Judgment of 2002 and the limits on the pre-judgment attachment of property. It will be a complementary case to Germany v Italy, which looked at these issues from the perspective of the immunity of the State itself.
September 9th, 2012 by Julien Maton
In a recent article in The Guardian, Richard Dicker discusses the stark contrast between the Nuremberg trial and Guantánamo’s Camp Justice, in light of the politics of the US Government in terms of fair trial rights.
The US government’s willingness to offer a fair trial, as it was the case at Nuremberg, is not reiterated at Guantánamo. On the contrary, the US government restricts the exercise of basic fair trial rights guaranteed by international and US domestic law.
The author states that the Nuremberg trial marked a stunning turning-point in using law to punish the most egregious crimes and laid the foundation for the still-evolving system of international justice. On the other hand, Guantánamo is unlikely to create such a powerful positive precedent.
For instance, anything detainees or their lawyers say in the courtroom is presumed classified, so that none of what they say will ever appear in the public record, explains the author.
Moreover, the prosecutor can unilaterally veto a defense attorney’s decision to call a witness. If this is the case, the lawyer must debate with the prosecutor in front of the judge. For Richard Dicker, this constitutes an unfair allocation of power between prosecution and defense which directly violates the “equality of arms”, and locks in a prosecutorial advantage that undercuts a vigorous and effective defense.
Based on the growing awareness worldwide of the efforts that have succeeded in bringing some of those accused of the world’s worst crimes to justice, Richard Dicker urges policymakers in Washington to raise due process guarantees at Guantánamo if they don’t want to undercut US credibility in pressing for justice elsewhere but also to devalue Nuremberg’s achievements.
September 4th, 2012 by Anna Bonini
by Rachel Lindon
For the English version of this post, click here.
Deux procès se sont tenus à ce jour en France, à l’encontre de somaliens accusés d’actes de piraterie au large des côtes somaliennes.
Lors du premier procès, qui s’est tenu en novembre 2011, dans l’affaire dite du Carré d’As, sur les six personnes accusées, une a été acquittée, et les cinq autres ont été condamnées à des peines de 4 à 8 années d’emprisonnement. Le Parquet ayant interjeté appel, cette décision n’est pas définitive.
Lors du deuxième procès, qui s’est tenu en juin 2012, dans l’affaire dite du Ponant, sur les six personnes accusées, deux ont été acquittées, et les quatre autres ont été condamnées à des peines de 4 à 10 années d’emprisonnement. Cette décision est devenue définitive, en l’absence d’appel des parties.
Ainsi, à ce jour, quatre somaliens se retrouvent libres en France : trois qui ont été acquittés et souffert pendant plusieurs années de détention provisoire indue et arbitraire, et un dont la détention provisoire abusivement longue de quatre années a couvert sa peine (la France, régulièrement condamnée par la Cour Européenne des Droits de l’Homme pour des durées de détention trop longues, a établi un funeste record mondial en matière de détention provisoire de supposés pirates somaliens…).
Après avoir été interpellés en territoire somalien (territoire maritime ou terrestre selon les cas), transférés en France, quelles ont été les conditions des détentions provisoires des somaliens pendant les longs mois d’enquêtes, et qu’a-t-il été prévu à leur sortie ?
A courtroom sketch made on May 22, 2012 in Paris, shows the six Somalis, charged with taking the crew of sailing ship Le Ponant hostage in the Gulf of Aden in 2008 during their trial at Paris’ courthouse. (AFP)
Continue reading ‘Le traitement par la France des somaliens accusés de piraterie’
September 2nd, 2012 by Julien Maton
by Guénaël Mettraux
This blog was commenting yesterday on the strange indictment of 270 South African miners on charges of “murdering” 34 of their co-workers who were killed by South African police. The BBC is now reporting that charges against the miners have been “provisionally dropped”.
It might be that a Prosecutor has woken up today to his better judgment and that he remembered the wise words of Glanville Williams that “the lawyer is interested in the causal parentage of events, not in their causal ancestry”. Or it may be that yet another jurisdiction has started rejecting a legal instrument (the “common purpose” doctrine or “joint criminal enterprise” theory) that is so hard to reconcile with principles of individualized justice and almost impossible to fit into the idea of personal culpability. Either way, it is a good step in the right direction…
September 1st, 2012 by Anna Bonini
by Guénaël Mettraux
The doctrine of “Joint Criminal Enterprise” also known as “common purpose” doctrine has sometimes been lauded as the tool that would end impunity. The flip side of the doctrine is a darker thing however.
Because it is so broad, so extraordinarily flexible and so all-encompassing in its reach, it is capable of spreading criminal liability far and wide, almost indistinguishably to anyone associatedde près ou de loin with a criminal endeavor. When applied to individuals charged with war crimes and other mass atrocities, this fact is generally regarded as a valuable prosecutorial tool capable of reaching into the far corners of organized criminality. Trigger something violent and unlawful and you might be held criminally responsible for all of its natural and foreseeable consequences, regardless of the identity of the perpetrator of those criminal consequences, regardless of the fact that you did not intend these consequences and regardless of the fact that you made no demonstrable contribution to these consequences. Now to an illustration of how such a flexible doctrine may apply in practice…
In one of the strangest ever cases of JCE or common purpose doctrine, South African prosecutors have now dusted off this Apartheid-era instrument and used it to charge 270 miners who were present during a violent demonstration in the course of which 34 fellow miners were shot and killed by South African police officers. The charges? Murder, 34 counts of it.
(Photo: Siphiwe Sibeko/Reuters)
Weird and unfair? Yes and yes. But also strangely valuable as a lesson in legal (in)sanity. Nothing makes the point better about the dangers of a particular rule of law than a good case of abuse of prosecutorial discretion. What shocks, of course, is that these miners did not kill their fellow demonstrators and that they did not intend such a result. These facts are not, however, relevant to that doctrine. Nor is the fact that they did not contribute to the death of any of them other. Their willful participation in an unlawful demonstration in the knowledge that death or injury could result would have been enough. So maybe what should shock our conscience is not the fact that prosecuting authorities acted as they did but that the law itself allowed them to do so and allowed them to drag into the net of the criminal law individuals so remotely connected to the criminal consequences for which they are now charged?
Our willingness to be appalled by prosecutorial or judicial unfairness is of course often first triggered by the sympathy that we may feel towards the accused (Pussy Riot over Mikhail Khodorkovsky; South African miners over Bosnian Serb wartime leaders). But there is another sort of unfairness that we should perhaps also concern ourselves with: the unfairness of letting some being prosecuted and convicted under certain legal standards when we are not ready to see us all being held to the same exacting and expansive standards. Next time a “great advance” is made in international criminal law, we should, I dare suggest, pause and wonder whether that law is really one that we are content to see apply to all, in particular to ourselves.
