Monthly Archives: October 2015

How Africa Can Fix the International Criminal Court

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By John Dugard*

ICCThe ruling African National Congress’s demand that the South African government should pull out of the International Criminal Court is defeatist, naïve and reactionary. African states have largely themselves to blame for the fact that the continent has been singled out by the court, and rather than withdraw they should use their political muscle to ensure that prosecutions are brought against non-African leaders too.

Africa occupies a key position in the International Criminal Court (ICC). It is the largest regional group with 34 member states; the present prosecutor of the court is an African woman – Fatou Bensouda of The Gambia – and four of the 18 judges on the court are from Africa, including the vice-president, Joyce Aluoch of Kenya. Africa is not therefore a marginal player in the ICC.

Despite this the ICC is more criticised in Africa than any other continent. In large measure this criticism comes from the leaders of non-member states, such as Zimbabwean President Robert Mugabe and Sudanese President Omar al-Bashir, who are themselves accused of committing international crimes.

But the leaders of member states, whose judges serve or have served on the court, have given support to the criticism and condemnation of the court. Perhaps the three most vocal leaders of this group are Kenyan President Uhuru Kenyatta, Ugandan President Yoweri Museveni and South African President Jacob Zuma. Continue reading →

Investigation Reveals ‘Strong Evidence’ of Genocide against Rohingya

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FILE - In this June 13, 2012 file photo, a Rohingya Muslim man who fled Myanmar to Bangladesh to escape religious violence, cries as he pleads from a boat after he and others were intercepted by Bangladeshi border authorities in Taknaf, Bangladesh. She is known as the voice of Myanmar's downtrodden but there is one oppressed group that Aung San Suu Kyi does not want to discuss. For weeks, Suu Kyi has dodged questions on the plight of a Muslim minority known as the Rohingya, prompting rare criticism of the woman whose struggle for democracy and human rights in Myanmar have earned her a Nobel Peace Prize, and adoration worldwide. (AP Photo/Anurup Titu, File)

Rohingya People who fled Myanmar to Bangladesh to escape violence (AP Photo/Anurup Titu)

According to a news article by Al Jazeera of Tuesday the 27th of October, there is ‘strong evidence’ that a genocide against the Rohingya people at the hands of the Myanmar government is, and has been, taking place.

The Lowenstein Clinic of Yale Law School, a clinic that undertakes a wide variety of projects involving students of Yale Law School and which is working on behalf of human rights organisations and individual victims of human rights abuses, spent eight months assessing evidence from Myanmar.

The clinic concluded that it was hard to avoid a conclusion that intent to commit genocide is present, given the scale of the atrocities and the way politicians in Myanmar talk about the Rohingya muslim minority of the country.

Al Jazeera’s Investigative Unit and the advocacy group Fortify Rights provided documents and testimonies to the study. According to this evidence, “the government has been triggering communal violence for political gain by inciting anti-Muslim riots, using hate speech to stoke fear among the Myanmarese about Muslims, and offering money to hardline Buddhist groups who threw their support behind the leadership.”

Al Jazeera has also published a new documentary, Genocide Agenda, which consults legal and diplomatic experts on whether the government‘s campaign amounts to systematic extermination. Continue reading →

Srebrenica Families Sue the Netherlands Before the ECHR

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Srebrenica MassacreThe families of three Bosnian Muslims filed a complaint to the European Court of Human Rights (ECHR) against the Netherlands for failing to investigate whether its peacekeeping commanders in Srebrenica allowed Bosniaks to be killed.

The move came after a Dutch appeals court ruled in April that Dutch Battalion (“Dutchbat”) commander Thom Karremans, his deputy Rob Franken and personnel officer Berend Oosterveen should not be prosecuted.

The appeal was brought by Hasan Nuhanovic, a Srebrenica survivor and former translator for the UN peacekeepers, and the family of Rizo Mustafic, who was killed by Bosnian Serb forces.

The three former UN Dutchbat commanders led the Dutch soldiers during the fall of the Muslim enclave. About 8,000 Muslim men and boys were slaughtered and buried in mass graves in mid-July 1995 at Srebrenica by Serb forces commanded by Ratko Mladic, now on trial for genocide and war crimes before the Hague-based International Criminal Tribunal for the Former Yugoslavia (ICTY).

When the Bosnian Serb Army overran Srebrenica, Nuhanovic’s relatives and Mustafic, along with several hundred others, sought refuge inside the Dutch peacekeepers’ base in Potocari.

Instead of finding safety however, they were handed to the Serbs by Dutch soldiers and subsequently killed.

Nuhanovic’s lawyer, Liesbeth Zegveld, said that she was optimistic about the case because the Dutch authorities should have at least brought the case before a criminal court, instead of just briefly dealing with it through a military prosecution.

“We think it is clear the Dutch authorities should have opened a criminal investigation and not just read historical records. The military prosecution said they read the historical records and found the three commanders were not criminally complicit. This was not at all for them to decide,” said Zegveld.

Why Myanmar Needs to Stop Prosecuting People Over Facebook Posts

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By Vani Sathisan*

facebookTo say that Facebook and other internet-based social media networks have revolutionized modern day communication would be an understatement. According to a report by the Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the global number of internet users has reached more than two billion. One million log onto Facebook every month. Twitter claims 500 million users and YouTube is viewed about 4 million times per day. After ideas expressed online have had an instant “viral” spread, revolutions  have unfolded .

And so have the prosecutions.

Judiciaries worldwide have had to struggle with what content is defamatory and what is self-expression.

The US Supreme Court, in Elonis v. United States [2015], considered the case of a defendant who had written, and posted on Facebook, apparently violent rap lyrics, including “I want to kill my wife” while he was undergoing a divorce. The court had to weigh up whether convicting a man of threatening another person requires proof of subjective intent to threaten or whether it would suffice to show that a “reasonable person” would regard the statement as threatening. It ruled in favour of the defendant stating that “negligence is not sufficient to support a conviction.” The defendant’s lawyer argued that his client was exercising his First Amendment rights and that governments may not prohibit the expression of an idea simply because certain factions of society find it offensive. Continue reading →

ICTY: Judge Agius and Judge Liu Elected President and Vice-President

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Judge Agius

Judge Carmel Agius

Judge Carmel Agius (Malta) and Judge Liu Daqun (China) were elected by acclamation as President and Vice-President of the International Criminal Tribunal for the former Yugoslavia by the permanent judges in an Extraordinary Plenary Session yesterday, 21 October 2015. Judge Agius and Judge Liu will succeed President Meron and Vice-President Agius and will serve for a two year term starting November 17, 2015.

Judge Carmel Agius is currently the Tribunal’s Vice-President and has served in this role since 2011. He is also an Appeals Chamber judge of both the Tribunal and the ICTR. He was first elected to the Tribunal in 2001 and re-elected in 2004. Between 2003 and 2010, he was Presiding Judge of Trial Chamber II of the Tribunal during which time he presided over the Brđanin, the Orić and the multi-accused Popović trials. He was also engaged in the initial appearance and pre-trial preparation and disposal of several other cases.

Since 2010, he has been dealing with appeals from both the Tribunal and the ICTR. Presently, he is presiding over multiple appeal matters. Since 2003 he has chaired the Rules Committee of the Tribunal and has served as a member of the Tribunal’s Bureau. In 2010 and 2011, on behalf of the Tribunal he has coordinated and brought to a conclusion the drafting of the Rules of Procedure and Evidence of the Mechanism for International Criminal Tribunals which were submitted to and accepted by the UN Security Council, and later adopted by the judges of the Mechanism. In 2011 he was elected a Judge of the Mechanism. Continue reading →

Sri Lanka: Judge Says War Crimes Claims Are Credible

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Sri Lanka Civil WarA government-appointed Sri Lankan judge, Maxwell Paranagama, says allegations the army committed war crimes during the long conflict with Tamil Tiger rebels are “credible”.

The judge was leading the first government inquiry into the atrocities, one month after the UN released its own findings.

The President of Sri Lanka, Maithripala Sirisena, has already vowed to set up a truth and reconciliation commission to investigate further.

In his report, the judge said there were “credible allegations which […] may show that some members of the armed forces committed acts during the final phase of the war that amounted to war crimes giving rise to individual criminal responsibility”.

He called on the government to set up an internationally-backed judicial inquiry, which was also recommended in the UN report in September.

The UN report found that the sheer number of allegations, their gravity, recurrence and the similarities in their modus operandi, as well as the consistent pattern of conduct they indicated, all pointed towards system crimes. It emphasised that violations of international human rights law, serious violations of international humanitarian law and international crimes were allegedly committed by all parties to the conflict.

Among the crimes that were identified were unlawful killings, enforced disappearances, and arbitrary arrests of civilians by Sri Lankan security forces and paramilitary groups as well as brutal use of torture, particularly in the aftermath of the armed conflict when former. The report also says that there are reasonable grounds to believe that rape and other forms of sexual violence by security forces personnel was widespread against both male and female detainees.

The Sri Lankan war started in 1983 when the Liberation Tigers of Tamil Eelam (the LTTE) started an insurgency against the Sri Lankan government in order to create an independent Tamil state in the north and east of the country. In 2009, the Sri Lankan military defeated the LTTE, bringing the 26-year civil war to an end. The UN estimates that 40,000 Tamils died in the final army offensive.

Radislav Krstic Wins £50k After Suing British Government

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Radislav KrstićRadislav Krstic has won more than £50,000 from the British government for failing to protect him from a savage prison attack.

Krstic, who is serving 35 years after being convicted by the International Criminal Tribunal for the former Yugoslavia for his part in the Srebrenica massacre, was being held at Wakefield prison when he was slashed with a razor blade.

Three Muslim extremists stormed his cell at the high security prison and cut his throat before leaving him for dead in the 2010 assault.

They held Krstic down and used a razor blade embedded in a tooth brush handle to cut his throat, neck and face.

Krstic claimed he has been left physically and mentally scarred and accused the prison authorities of negligently failing to protect him from the threat of attack by prisoners.

A judge, sitting at Central London County Court, has now ruled that the Ministry of Justice was negligent and awarded him £52,500 damages.

At the time of the attack, Krstic was being held in Britain under an agreement with NATO.

His attackers were all later convicted of causing grievous bodily harm with intent.

In his ruling, the judge said that Wakefield Prison had no appropriate facilities for protective confinement and Krstic should never have been transferred there.

Radislav Krstic serves now his sentence in a Polish jail.

ECHR: Turkish Politician Had Right to Deny Armenian Genocide

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Dogu Perinçek

Doğu Perinçek

Yesterday, the Grand Chamber of the European Court of Human Rights (ECtHR) delivered its judgment in the case of Perinçek v Switzerland. The Grand Chamber held by majority that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights (ECHR).

Mr Doğu Perinçek, a Turkish politician, had been convicted in Switzerland for publicly expressing the view that the mass deportations and massacres suffered by the Armenians in the Ottoman Empire in 1915 and the following years had not amounted to genocide. At a press conference in Switzerland in May 2005, he stated that the allegations of the ‘Armenian genocide’ were an international lie. In two further public events in Switzerland he made further statements of a similar nature.

Mr Perinçek was finally convicted by the Swiss Federal Court on 12 December 2007. He lodged an application to the ECtHR to complain about his criminal conviction in June 2008. In a judgment of 17 December 2013, a Chamber of the Court held that there had been a violation of Article 10 of the Convention. The Swiss Government requested the case to be referred to the Grand Chamber. In the Grand Chamber proceedings, third-party comments were received from the Turkish Government, the Armenian Government, and the French Government.

The Court concluded that it had not been necessary, in a democratic society, to subject Mr Perinçek to a criminal penalty in order to protect the rights of the Armenian community at stake in the case. According to an official press statement of the Court, the Grand Chamber particularly took into account the following elements: Continue reading →

ICC to Open Investigation Into Russia-Georgia Conflict

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Russia Georgia 2008 ConflictOn 13 October 2015, the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, requested the judges of Pre-Trial Chamber I of the Court for authorisation to open an investigation into the alleged war crimes and crimes against humanity in relation to the August 2008 armed conflict in Georgia.

The situation in Georgia has been under preliminary examination by the Office of the Prosecutor since August 2008, when armed clashes between South Ossetian separatists, supported by Russia, and Georgian forces turned into an armed conflict.

While Russia is non-member state after signing, but not ratifying, the Rome Statute, Georgia became a member of the ICC in 2003, providing the ICC with jurisdiction over Rome Statute crimes committed on its territory from 2003 onwards.

The Prosecutor found a reasonable basis to believe that war crimes and crimes against humanity were committed in the context of the armed conflict. This includes alleged crimes committed as part of a campaign to expel ethnic Georgians from South Ossetia as well as attacks on peacekeepers by Georgian forces, on the one hand, and South Ossetian forces, on the other.

According to the Prosecutor between 51 and 113 ethnic Georgian civilians were killed as part of a forcible displacement campaign conducted by South Ossetia’s de facto authorities, with the possible participation of members of the Russian armed forces. Between 13,400 and 18,500 ethnic Georgians were forcibly displaced and more than 5,000 dwellings belonging to ethnic Georgians were reportedly destroyed as part of this campaign.

Until recently, the competent national authorities of both Russia and Georgia were engaged in conducting investigations against those who appeared to be most responsible for crimes which are the subject of this application. However, more recently, national proceedings in Georgia have stalled, thereby making the potential case admissible due to State inaction. Some investigations may nevertheless be underway in Russia, meaning that the ICC might not have full jurisdiction over crimes covered by those probes.

If the Pre-Trial Chamber authorises the Prosecutor to open the investigation, this would be the first ICC investigation that is not involving an African country. The request comes amid plans of South Africa to leave the International Criminal Court which sparked fears that this might lead to a broader African withdrawal.

However, it is argued that the Prosecutor’s decision to move forward on Georgia is not made in light of a prosecution strategy to move cases out of Africa, but that after seven years the case simply demanded to be taken forward.

Le Tribunal spécial pour le Liban, cet énergumène judiciaire: Observations d’un expert avisé

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Compte-rendu d’entrevue avec Me Philippe Larochelle

par Pascale Langlais*photo_tsl

En 2009, la justice pénale internationale a mis au monde un petit nouveau, une entité judiciaire bien spéciale et unique en son genre : le Tribunal spécial pour le Liban (ci-après « TSL »). Né de la résolution 1757 du Conseil de Sécurité des Nations Unies à la suite des attentats terroristes ayant coûté la vie à l’ancien premier ministre du Liban, Rafiq Hariri, en 2005, le TSL se distingue des autres juridictions internationales à plusieurs égards et semble parfois évoluer en orbite des autres tribunaux phares de la justice internationale. À ce sujet, on doit notamment souligner le fait qu’il s’agit du premier tribunal international pénal à juger de crimes uniquement définis en droit national, à savoir le terrorisme selon le Code pénal libanais (pour plus d’information). Il s’agit également du premier tribunal international pénal à prévoir dans son Statut la possibilité de tenir des procès in absentia, donc en l’absence de l’accusé. Autre innovation, le TSL est aussi le premier tribunal en son genre à se reconnaître une compétence en matière de responsabilité de personnes morales[1].

Malgré toutes ces caractéristiques que certains considèrent comme une avancée du droit international pénal, il n’en demeure pas moins que le TSL essuie son lot de critiques non seulement en ce qui a trait à sa légitimité et à son fonctionnement, mais également en rapport avec la place qu’il occupe dans la sphère de la justice internationale pénale. Ses détracteurs sont nombreux, tant dans la société libanaise que dans la communauté internationale. Parmi ceux-ci, on peut notamment citer Philippe Larochelle, avocat de la défense fort d’une grande expérience devant les tribunaux internationaux. Me Larochelle se montre très dubitatif quant à l’existence de ce tribunal et porte un regard très critique sur la justice internationale pénale de manière générale. Il a d’ailleurs su exposer ses opinons très tranchées sur la question lors d’une conférence présentée à l’Université Laval le 28 mai 2015 dans le cadre de la première édition de l’École d’Été sur la Justice internationale. Il a plus amplement précisé sa pensée lors d’une entrevue accordée à la suite de cette conférence. Continue reading →