Latest News and Events

Former ICTY Judge TV Interview

Judge Kwon O-gonFormer ICTY Judge Kwon O-gon gave a TV interview this month during which he shared his story of bringing justice for the victims of one of the most atrocious and devastating wars since World War II.

After sitting in the Korean court of law for more than two decades, Kwon O-gon became the first Korean judge to preside over the International Criminal Tribunal for the former Yugoslavia (ICTY), where he served for the past 15 years.

Judge Kwon was one of the judges in the trial of Slobodan Milošević, the former President of Serbia.

Judge Kwon was also the Presiding Judge for the case of former Bosnian Serb leader, Radovan Karadžić, handing him a 40-year sentence last March.

Judge Kwon resigned from the ICTY and returned home earlier this year. Now, he is opening a new chapter in his life and career, as the president of a research institute that specializes in international law.

If you wish to watch the interview, click here.

First Trial Over Cultural Destruction to Open at the ICC

Ahmad Al Faqi Al MahdiThe trial in the case of The Prosecutor v. Ahmad Al Faqi Al Mahdi is scheduled to open tomorrow at the seat of the International Criminal Court (ICC) in The Hague.

Mr Al Mahdi is an alleged Islamic extremist charged of war crime through his involvement in the intentional destruction of religious buildings in the city of Timbuktu in Mali between about 30 June 2012 and 10 July 2012.

In 2012, Tumbuktu would have been under the control of armed groups, Al Qaeda in the Islamic Maghreb (“AQIM”) and Ansar Eddine, a mainly Tuareg movement associated with AQIM.

The Prosecution alleges that Al Mahdi was linked to those groups. His alleged orders consisted in the destruction of historic buildings including mausoleums and a mosque in Timbuktu. They were specifically identified, chosen and targeted precisely in light and because of their religious and historical character. Their destruction was considered as a serious matter by the local population.

Due to Mr Al Mahdi’s announced intentions to make an admission of guilt, the trial is expected to last for about a week, after which the judges will deliberate and in due course pronounce a decision on the guilt or innocence of the accused and the possible sentence.

If the accused does not plead guilty at the opening of the trial, the hearings will be reported to another date.

This is the ICC first case concerning the destruction of buildings dedicated to religion and historical monuments, which the ICC Prosecutor has called “a callous assault on the dignity and identity of entire populations, and their religious and historical roots”.

Mali’s government asked the Court in 2012 to investigate crimes committed on its territory. Prosecutors opened an investigation in 2013. Mr Al Madhi is the first suspect detained.

Abbas: Palestine plans lawsuit against the UK over the 1917 Balfour Declaration

Mahmoud Abbas, the president of Palestine, announced his intention on Monday to sue the government of the United Kingdom over the 1917 Balfour Declaration which paved the way for the creation of Israel.

Balfour Declaration published in The Times of London - 9 November 1917

Balfour Declaration published in The Times of London – 9 November 1917

The statement of Abbas was delivered by foreign minister Riyad al-Maliki at the opening of this week’s Arab League summit in Mauritania, in the absence of Abbas.

It is said that the 1917 Balfour Declaration, named after then UK Foreign Secretary Lord Arthur Balfour, pledged to support the establishment of a “national home” for the Jewish people in Palestine. The Declaration is seen as a key milestone for the Zionist movement.

The document formed the basis of the British Mandate for Palestine, which was formally approved by the League of Nations in 1922.

Al-Maliki said that the Balfour Declaration led to mass Jewish immigration to British Mandate Palestine. According to al-Maliki, the Declaration “gave people who don’t belong there something that wasn’t theirs”.

In the statement it was further said that the United Kingdom was responsible for all “Israeli crimes” since the end of the British mandate in 1948.

According to the statement, the lawsuit would be filed “in an international court”, but no further details on the planned lawsuit were provided. Gulf News reported that Dr Hanna Eissa, part of the Palestinian team preparing the lawsuit, mentioned the International Court of Justice, which can issue non-binding advisory opinions.

African Union Approves Regional Force in South Sudan

4. Ilawyer Image - African Union Approves Regional Force in South SudanSouth Sudan conflict was one of the main concerns of the last African Union (AU) Summit held in Kigali (Rwanda) on 17 and 18 July 2016, where the African leaders made it official that they were willing to deploy troops in South Sudan.

UN chief Ban Ki-moon expressed his support for the AU deployment.

South Sudan just emerged from the 2013-2015 civil war which displaced 2.2 million people. Notwithstanding, the recent fighting between rival forces which left hundreds of people dead jeopardizes the Peace Deal signed in August 2015.

Even if a 12 000-strong UN peacekeeping force is already in South Sudan, the African leaders want to put into order a stronger mandate. According to Smail Chergui, the AU Peace and Security Commissioner, “the UN doesn’t have the mandate to impose peace“.

The details on the force are not agreed yet, but it will involve soldiers coming from Ethiopia, Kenya, Rwanda, Sudan and Uganda and the model used will probably be similar to the intervention deployed within the UN’s mission in Democratic Republic of Congo held in 2013. Smail Chergui explained that “African troops are ready to engage in very difficult situations“.

The Kosovo Peacekeeping Mission, a “Total Failure”?

OLYMPUS DIGITAL CAMERA

On Wednesday, 13 July, the Human Rights Advisory Panel submitted a report about the United Nation Interim Administration Mission in Kosovo (UNMIK). In this report, the Panel, whose role is to issue recommendations to the UNMIK, described the Kosovo peacekeeping mission as a “total failure”.

The report strongly criticizes the UNMIK’s handling of civilian grievances in Kosovo, including its failures to investigate disappearances and killings as well as negligence in the mass poisoning of hundreds of displaced Roma which were left in squalid United Nations camps built on land contaminated with lead.

According to the panel, “now that the Panel has concluded its mandate, putting an end to an eight-year process of issuing admissibility decisions, opinions, and recommendations, the Panel is forced to proclaim this process a total failure”.

This conclusion is a source of embarrassment for the United Nations, which regularly assails governments for a lack of accountability and defends victims whose human rights have been violated in conflict zones around the world.

The Panel ends its report  apologizing « profusely to the complainants for its role in this sham ».

The United Nations Peacekeeping Department, which oversees UNMIK, said that UNMIK « values the work of its advisory panel » but emphasizes the fact that the Panel is not a Tribunal.

UNMIK officials had no immediate comment on the report.

Latest Analysis

Iraqi Civilians v. Ministry of Defence: Denial of Justice in Cases Involving International Torts

UK Soldiers Iraqby Rishi Gulati and Matthew Nelson*

The decision of the United Kingdom Supreme Court in Iraqi Civilians v. Ministry of Defence (No. 2) [2016] UKSC 25 (“Iraqi Civilians”) demonstrates how public and private international law concepts interact and affect the rights of individuals allegedly subjected to grave breaches of rights to access a remedy before courts of law.

 Iraqi Civilians: Background

The claimants, hundreds of Iraqi civilians represented by 14 lead claimants, brought claims under the Human Rights Act 1998 and in tort against the UK Ministry of Defence, for damages arising out of alleged unlawful detention and/or physical maltreatment by British soldiers between 2003 to 2008 in Iraq. After the cessation of the major combat operations in May 2003, the UK became an occupying power and began exercising the powers of the Iraqi Government on a temporary basis.

The Supreme Court’s brief decision, delivered by Justice Sumption, concerned the application of limitations to the claimants’ suits that operated as a matter of Iraqi law. Accepting, as the parties did, that Iraqi law applied in relation to questions of the Ministry’s liability in tort, the claimants were, by operation of Article 232 of the Civil Code of Iraq (the “Civil Code”), barred from commencing their applications (though their rights were not extinguished) by virtue of the operation of limitation periods to claims of this kind. Consequently, the claimants sought to invoke an order of the Coalition authorities, Coalition Provisional Authority Order 17 (the “Order”), that operated to suspend the taking of proceedings in Iraqi courts against the UK Government, such that it conferred state immunity on the UK Government from legal process in Iraqi courts. It is this order, the claimants’ argued, that had the effect of suspending the limitation periods, as envisaged in Article 435 of the Civil Code. Continue reading

Authorities and Courts Complicit in Eroding Rule of Law in Kachin State

by Vani Sathisan and Sean Bain*

“The scale and severity of human rights violations in Kachin State is one of the worst in Myanmar,” a lawyer told the International Commission of Jurists during a meeting in Myitkyina last month.

Myitsone Kachin State

Visitors walk along the riverbank at the Myitsone in Kachin State in December 2015. (Wa Lone / The Myanmar Times)

Illegal large-scale land grabbing, harassment of landowners by government and business officials, and a lack of access to justice were the central complaints heard by the ICJ during the discussions with human rights defenders and civil society groups in Kachin State.

Senior state-level judicial officials signalled increased readiness to discuss ways to improve the effectiveness and independence of the courts. Yet meaningful reform also requires revising laws to bring them in line with international human rights standards, respecting judicial independence by government officials, and securing corporate legal compliance through consistent application of the law and access to fair and effective judicial review.

The conflict in Kachin State and northern Shan State, where over 100,000 people remain displaced since fighting between the government and ethnic armed groups re-started in 2011, is partly fuelled by the abundant natural resources.

Eighty percent of Myanmar’s mining operations are located in Kachin State and neighbouring Sagaing Region. Timber, rubies and gold are plentiful. A report by international watchdog Global Witness estimated the value of illegal jade mining at around US$31 billion in 2014 alone. Yet hazardous mining practises are rampant while law enforcement is haphazard. Continue reading

Myanmar: New Government Inherits Problems and Promise of Special Economic Zones

By Vani Sathisan (International Legal Advisor, International Commission of Jurists) and Bobbie Sta. Maria (Senior Researcher for Southeast Asia, Business & Human Rights Resource Centre)

Myanmar Special Economic ZoneWhile SEZs are supposed to be a driver for Myanmar’s economic growth, their impacts on the rights of affected communities indicate that this growth is reserved for businesses and investors.

This is a long form version of this article published by Reuters on 1st April 2016.

More than half a century of military rule ostensibly comes to a close on April 1, when Daw Aung San Suu Kyi’s National League for Democracy (NLD) officially takes over Myanmar’s government and the first civilian President since 1962 starts leading the nation. Despite these extraordinary developments, daunting challenges remain in Asia’s second poorest country. Myanmar’s military still controls key governmental functions; the country is barely emerging from decades of civil conflicts; rule of law and institutions are weak; the economy is fragile and dominated by crony companies; corruption, and human rights abuses remain stubbornly persistent.

The outgoing government initiated a number of significant changes, including efforts to encourage economic development through foreign trade and investment. This strategy included heavily promoting foreign investment through three major special economic zones (SEZ): a Japanese supported zone focused on manufacturing in Thilawa, near Yangon; a Thai supported zone initially focused on heavy industry including petrochemicals in Dawei in the south; and a Chinese supported zone in Kyaukphyu in the northwest, envisioned as a trade corridor connecting the Chinese, Indian and ASEAN economies. These were said to build on Myanmar’s strategic location and low-cost production base for export destinations in the region.

The NLD recently announced that while it supports the zone in Thilawa, it will reconsider the continuation of the Dawei and Kyaukphyu SEZs, study commitments made by the former government to investors, and speak with relevant stakeholders. This is a crucial process and many hope that the NLD does not lose sight of its commitments in its Election Manifesto, including encouraging “foreign investment in line with the highest international standards”, and laying down “paths for economic cooperation that can bring sustainable long-term mutual benefits”. Continue reading

The Yugoslavia Tribunal also Engages in Debt Collection

by William A. Schabas*

ICTYAlongside yesterday’s very important judgment of the International Criminal Tribunal for the former Yugoslavia was a rather more pathetic manifestation of the fight against impunity. While the judgment was being issued, Security officials of the Tribunal, with the apparent assistance of the Dutch police, arrested French journalist Florence Hartmann. She is now in detention at the Tribunal’s prison. For a photo of her arrest, look here.

Florence Hartmann served as press officer at the Tribunal about a decade ago, When she left, she published a memoir entitled Paix et châtiment. The book referred to decisions of the Tribunal’s Appeals Chamber that were supposed to have remained confidential. After being tried and convicted of contempt of court, she was sentenced to pay a €7,000 fine. When she failed to pay the fine, the Tribunal converted the sentence into one of seven days’ imprisonment. She now has six more days to go, that is, unless the Tribunal applies its policy of early release after service of two-thirds of the sentence.

All of the international tribunals have wasted a lot of resources on prosecuting so-called ‘offences against the administration of justice’. The time and money these matters have consumed could have been usefully devoted to more serious cases involving genocide, crimes against humanity and war crimes.

It doesn’t have to be this way. In the early 1990s, the International Law Commission conceived of an international court that would not concern itself with issues like contempt of court, perjury and tampering with witnesses, leaving thus to the national courts. If Florence Hartmann, or the others, really committed an offence against the administration of justice, it would make a lot more sense for them to be dealt with by domestic justice systems. Continue reading

Myanmar: Rule of law depends on reform of Union Attorney General’s Office

By Daniel Aguirre and Vani Sathisan*

Recent political discussion in Myanmar revolves around the formation of a new government and selection of a president, but not enough attention is focused on the position of the attorney general, who holds a critical function in upholding rule of law and respect for human rights.

Students arrested in a police crackdown on their peaceful protests against the education law in March 2015 arrive for a court hearing on May 12, 2015. Lawyers and activists complain the trial is taking too long. Photo: Aung Myin Ye Zaw / The Myanmar Times

Students arrested in a police crackdown on their peaceful protests against the education law in March 2015 arrive for a court hearing on May 12, 2015. Lawyers and activists complain the trial is taking too long. Photo: Aung Myin Ye Zaw / The Myanmar Times

The attorney general is Myanmar’s most powerful legal officer: As a member of the executive, the AG provides legal advice to the President and the hluttaw, analyses international treaties, drafts and amends laws, and represents the government in judicial proceedings. The attorney general also directs the prosecutors’ office and ensures that cabinet actions are legally valid, in line with the constitution and international human rights law.

The International Commission of Jurists (ICJ), international donors and development partners discussed the attorney general’s powerful role on the sidelines of the launch for the Union Attorney General Office’s (UAGO) Strategic Plan 2015-19 in Nay Pyi Taw last week. All expressed hope that the incoming National League for Democracy (NLD) government will appoint an attorney general committed to reform, the rule of law and human rights, in line with their election manifesto promise to ensure that executive and judicial systems support the rule of law. Continue reading