Letpadaung Convictions Taint the Legal System in Myanmar

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

Letpadaung Copper Mine

Letpadaung Copper Mine, Myanmar

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

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

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

Whistleblower Protection at the UN: Reasons for Despair or Hope?

By Rishi Gulati*

[The author has had no involvement in the cases mentioned below; this entry should not be construed as legal advice in any way or form whatsoever]

Anders Kompass United Nations

Anders Kompass, the director of field operations for the Office of the High Commissioner for Human Rights

In a recent article in the Guardian, it was disclosed that French authorities thanked a senior UN official, Mr Anders Kompass for disclosing sexual abuse by French troops. That article says in part:

Sources close to the case say Kompass, director of field operations for the Office of the High Commissioner for Human Rights (OHCHR) in Geneva, disclosed the report to the French because of the UN’s failure to act quickly to stop the abuse identified in its own internal report.

Hinting that the allegations represented just a fraction of what had taken place, a UN spokesman said on Friday: “It is possible, it’s horribly possible” that more allegations of sexual abuse of children by French and other soldiers in the Central African Republic could come to light.

The same report says that: “The official, Anders Kompass, has been suspended by the UN and faces dismissal for what the organisation says is a “breach of protocols” in releasing a confidential internal UN document.” I will return to the Kompass case shortly. But before that, some points on the UN whistleblower protection system, or the lack of it.

Problems facing whistleblower protection at the UN

The internal rules of the UN contain several layers, one of these layers is known as the Secretary-General Bulletins. These possess binding force. Under the Secretary-General’s Bulletin on protection against retaliation (ST/SGB/2005/21) the UN Ethics Office protects staff from being punished for reporting misconduct or for cooperating with an official audit or investigation – commonly known as “whistleblower protection.”

But are whistleblowers rights at the UN actually protected? There are some very disturbing findings. Continue reading

Can International Law Change the World?

By Shehzad Charania

International Court of Justice

The International Court of Justice

This week, at the Residence of the British Ambassador to the Netherlands, Ambassador Sir Geoffrey Adams opened the British Embassy Annual Lecture Series on International Law.  The guest speaker for the Inaugural Lecture was Judge Sir Christopher Greenwood of the International Court of Justice.

Ambassador Adams explained that the lecture marked the occasion of the Global Law Summit, which took place this week in London, as well the year in which we commemorate 800 years since the signing of the Magna Carta of 1215.

Judge Greenwood’s lecture was entitled “Can International Law Change the World?”.  He began by referring back to the Magna Carta itself.  He explained that Magna Carta had changed “a world”: the law of England, albeit slowly and tentatively.  It established equality before the law; in particular, that even the King was subject to the law; and that justice was not to be sold or denied to anyone.  These principles form the foundation of the rule of law.

So could international law change the world in a similar way, Judge Greenwood asked.  He used as his point of reference the First and Second Hague Peace Conferences of 1899 and 1907.  The inspiration for those conferences had been a belief that international law could indeed change the world.  Specifically, the hope was that these conferences would legislate on the way war was conducted, including the reductions of certain armaments and prohibition of others, and set up an international court, the Permanent Court of Arbitration, which would enable States to settle their differences by law rather than war. Continue reading

Is the International Community Abandoning the Fight Against Impunity?

by David Tolbert*

Court HammerTwenty-five years after the fall of the Berlin Wall, and more than a decade after the establishment of the International Criminal Court, shockingly little is being done to stop massive human rights abuses. The prospects of victims receiving justice, let alone bringing perpetrators to account, seem ever more remote.

In recent days, we have witnessed horrific atrocities by Boko Haram, with only a limited response by the international community. The bloody handiwork of ISIL is grabbing headlines, and there seems to be no coherent strategy to address its barbarity. In Syria conflict rages, with untold civilian casualties as a divided UN Security Council sits on the sidelines. Gaza is struggling to recover after its umpteenth destruction. Eastern Ukraine is rocked by daily attacks on civilian targets, and very few seem to remember the downing of a civilian airplane there, in which 295 people died. This somber list could go on and on.

In my view, the response by the international community to these horrors is one primarily of lip service and well-worn shibboleths. Indeed, powerful states often seem to be casting support to whichever group of killers best suits their interests, with only faint rhetorical nods to human rights.

This is not only a professional reaction to these disturbing trends; it is also born of deep personal concerns and experiences. I joined the United Nations in 1993 to work on issues in Palestine and started my new job on the very day the Oslo Accords were signed, marveling at both the apparent breakthrough and my seeming good fortune to be part of an era of peace building. Several years later I joined the International Criminal Tribunal for the former Yugoslavia and later sat across a jail cell desk from one of the principal architects of the Balkan tragedy, Slobodan Milosevic, whose prevarications were then being made from behind bars, far from the halls of power. In 1998, I was in Rome for negotiations on the International Criminal Court; I was both awed by the apparent flowering of international justice and a bit nervous that the world perhaps did not understand fully the implications of such a groundbreaking step. Continue reading

Palestine’s ICC Accession: Risks and Rewards

By Dr Miša Zgonec-Rožej

Handout picture showing Abbas signing international agreements in the West Bank city of Ramallah

Palestinian President Mahmoud Abbas signs 20 international treaties, including the Rome Statute of the ICC, in Ramallah on 31 December 2014

On 6 January, the UN secretary-general confirmed that Palestine will accede to the Rome Statute of the International Criminal Court (ICC). Palestine’s accession has, unsurprisingly, prompted certain countries – including Israel, the US and a number of European states – to warn of potentially grave consequences. It is certainly a risky venture for Palestine given political tensions in the region, but it may deter future war crimes in the Israeli-Palestinian conflict, and marks another step towards statehood for Palestine.

Palestine’s accession will confer jurisdiction on the Court in relation to crimes committed within the territory claimed by Palestine. Although Israel has not ratified the Rome Statute, crimes allegedly committed by Israeli nationals in the territory claimed by Palestine will fall within the ICC’s jurisdiction. The ICC will also have jurisdiction over crimes committed by Palestinians outside the territory claimed by Palestine, including in Israel. Crimes falling within the ICC jurisdiction are limited to genocide, war crimes and crimes against humanity. But the accession can only confer on the Court jurisdiction over crimes committed after the Rome Statute enters into force for Palestine on 1 April. And until the borders of Palestinian territory are clearly defined and the status of occupied territories resolved, the ICC’s territorial jurisdiction will remain contentious.

In order to bring past crimes within the ICC’s jurisdiction, Palestine, on 1 January, lodged a declaration under Article 12(3) of the Rome Statute, retroactively accepting the Court’s jurisdiction. Although in principle such declarations can extend to crimes committed after 1 July 2002, when the Rome Statute entered into force, Palestine decided to limit it to crimes committed since 13 June 2014. The declaration, if accepted by the ICC, would therefore bring into the ICC’s jurisdiction last summer’s conflict in Gaza but not earlier military operations. Continue reading

After Torture Report, Rights of Victims and Accountability for Perpetrators Must Not Be Denied

By David Tolbert*

Torture ReportWith the publication of the much-delayed US Senate Intelligence Committee’s partial report on the CIA’s Detention and Interrogation Program, at long last the truth is out. Put simply, the abuses it details are sickening. The report documents a period of lawlessness by the US Central Intelligence Agency. It shows that officials at the highest levels of the US government committed very serious and atrocious crimes, including systematic torture in violation of the UN Convention on Torture (of which the United States is a party) and US law.

The Senate report corroborates the findings of the International Center for Transitional Justice (ICTJ), in a series of reports dating back to 2008, as well as other rights groups: that the systematic practice of torture against detainees in secret overseas prisons was approved and overseen at the most senior levels of the US government. Moreover, as Senator Dianne Feinstein aptly notes in the report’s foreword, these practices were in direct “violation of U.S. law, treaty obligations, and our values.”

While we have known for over a decade about many of the details of illegal US detention and interrogation practices, the “Torture Report” establishes beyond a shadow of a doubt that the US government engaged in widespread and brutal use of torture and other criminal acts against a long list of individuals without a shred of due process or even the semblance of justice.

The full 6,700-page report has not been released yet, but its lengthy, heavily redacted executive summary nonetheless paints a repulsive picture of criminal and immoral practices far beyond what had been previously made known to the public. It also exposes the facile lie that torture somehow disrupted terror plots or saved American lives. The report, based on over 5 million pieces of evidence sourced from the CIA itself, decisively debunks this claim, and under the weight of direct evidence the CIA’s contorted claims fall like a house of cards. Moreover, it establishes in clear terms that the CIA’s torture program was perpetuated through misinformation to the public, Congress, and even the White House. Continue reading

The Impact of the ECCC

by Youk Chhang*

ECCC

The Extraordinary Chambers in the Courts of Cambodia

We have come a long way in forging a number of valuable instruments and policies to meet the challenge of responding to and punishing violence and mass atrocity. Recognising that the root causes of mass atrocities often stem from the inequalities between identity groups, we have put emphasis on the legal and governmental aspects of violence prevention. In terms of punishment as well, a variety of courts have been created to shed light on the atrocious acts of criminal regimes, and punish leaders who were most responsible.

The proceedings now under way at the Extraordinary Chambers in the Courts of Cambodia (ECCC), known as the Khmer Rouge tribunal, represent one example of how Cambodia has sought to address the horrible crimes perpetrated from 1975-79. The court’s work can be broken down into four cases. Case 001, which was completed in 2012, centred upon the prosecution of the notorious chief of a prison/security centre (S-21), who was sentenced to life imprisonment.

The trial court also recently issued its judgment for the accused senior leaders in the first set of charges in Case 002. Case 002, which has been broken up into separate trials reflecting different charges against the accused, holds importance in Cambodia’s struggle to understand what happened and why during the horrific Democratic Kampuchea (DK) period. Finally, cases 003 and 004 continue to be investigated. Continue reading

Decision on Flotilla Raid is Latest Turn in ICC’s Consideration of Israeli-Palestinian Conflict

By Dr Miša Zgonec-Rožej*

The decision to not investigate alleged war crimes during the raid on a Gaza-bound humanitarian flotilla in 2010 comes as no surprise, but it highlights the uncertain legal situation surrounding the Rome Statute’s applicability to the Israeli-Palestinian situation.

Mavi Marmara Passengers

Passengers look down from the Turkish passenger ship Mavi Marmara as the Israeli navy intercepts boats bound for Gaza on 31 May 2010 – ©Getty Images

On 5 November, the International Criminal Court decided not to proceed with an investigation into alleged war crimes committed by Israeli soldiers during their raid on a Gaza-bound humanitarian flotilla in 2010. Despite acknowledging a reasonable basis to believe that war crimes were committed on one of the vessels, the Mavi Marmara, the prosecutor concluded that the potential case was not of sufficient gravity to justify further action by the ICC. The decision comes as no surprise.

Due to its limited resources, the ICC was never intended to deal with all crimes falling within its jurisdiction. The assessment as to which case meets the threshold of sufficient gravity is based on the scale, nature, manner of commission of the crimes and their impact. Given that the court lacks jurisdiction to investigate any other alleged crimes committed in the context of the Israel-Hamas conflict or in the broader context of the Israeli-Palestinian conflict, the prosecutor concluded that the requisite threshold was not met because the potential case(s) would be limited to an event encompassing a small number of victims of the alleged war crimes. Continue reading

South Africa’s Police Must Investigate Zimbabwe Torture Allegations

By Max du Plessis*

10-11-2014-SAPS-Zimbabwe-Torture-ContentOn 30 October 2014, the Constitutional Court of South Africa handed down its judgment in a landmark case for international criminal justice.

The appeal related to the responsibilities of the South African Police Service (SAPS) under domestic and international law to investigate acts of torture, as a crime against humanity, that were allegedly committed in Zimbabwe.

The decision, by South Africa’s highest court, reaffirms the obligations set out in the South African Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (ICC Act) regarding investigation and prosecution of international crimes.

In March 2008, the Southern African Litigation Centre (SALC) submitted a dossier to the Priority Crimes Litigation Unit of the National Prosecuting Authority (NPA) detailing allegations of torture in Zimbabwe. The NPA took no action, indicating that they could only do so if the police investigated the allegations and laid charges. Continue reading

The Italian Constitutional Court’s Challenge to the Implementation of the ICJ’s Germany v Italy Judgment

by Dr Filippo Fontanelli

International Court of Justice

The International Court of Justice

With the decision no. 238 of 22 October 2014, the Italian Constitutional Court (the CC) produced the most spectacular display of dualism this side of Medellin. The CC declared the unconstitutionality of Italy’s compliance with the International Court of Justice (ICJ)’s judgment Germany v. Italy (Greece intervening). The CC’s ruling – briefly reported – invites speculation on two fronts: 1) What does it say about the application of international law in domestic courts? 2) Is the judgment reasonable by any relevant standards other than Italian constitutional law?

On the practical matters of the follow-up scenario before Italian ordinary courts, I take the liberty to refer to my discussion here (spoiler: Germany will not pay anyway).

In February 2012, the ICJ found that Italy breached its international obligations vis-à-vis Germany. Italian courts had exercised jurisdiction in tort proceedings against Germany, instituted by Italian plaintiffs for World War II war crimes of the Nazi occupation forces in Italy. These proceedings, resulting in Germany being ordered to compensate the victims, constituted internationally wrongful acts, since they disregarded the international custom whereby sovereign states are immune from civil suit in foreign courts, for acts jure imperii. The ICJ reached the same conclusion with respect to the ensuing enforcement proceedings and the exequatur granted by Italian judges to authorise execution of Greek judgments in similar disputes. Continue reading