Author Archives: Raphaëlle Rafin

John Kerry: IS is Committing Genocide in Iraq and Syria

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John Kerry delivering his statement on IS on 17 March 2016

John Kerry delivering his statement on IS on 17 March 2016

United States Secretary of State John Kerry today officially determined the Islamic State group (IS) is committing genocide and crimes against humanity against Christians, Yazidis and Shiite groups in Iraq and Syria. His statement meets a congressional deadline for a decision that was long expected. Though the declaration is not related to any obligation of the United States (US) to take further action against IS or to any prosecution against members of this group.

On 14 March, the US House of Representatives passed by 393 to 0 a non-binding resolution that declared that “the atrocities perpetrated by ISIL against Christians, Yezidis, and other religious and ethnic minorities in Iraq and Syria constitute war crimes, crimes against humanity, and genocide.” Continue reading →

South Africa “disgraceful” for Not Arresting Al-Bashir

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Yesterday, the Supreme Court of Appeal of South Africa ruled the government had shown unlawful conduct “in failing to take steps to arrest and detain, for surrender to the International Criminal Court, the President of Sudan, Omar Hassan Ahmad Al Bashir.” The Appeal Court has ruled that South Africa had therefore failed to comply with its obligations under the Rome Statute and section 10 of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002.

Sudanese President Omar al-Bashir during the 25th AU Summit in South Africa ©KIM LUDBROOK / EPA

Sudanese President Omar al-Bashir during the 25th AU Summit in South Africa ©KIM LUDBROOK / EPA

Omar Al Bashir visited South Africa on 13 June 2015 to attend the 25th Assembly of the African Union.  The South African government took no steps to arrest Omar Al Bashir, claiming he benefited from immunity as a head of State. The South African Litigation Centre brought in response an urgent application on Sunday 14 June to the High Court of Pretoria, “seeking orders declaring the failure to take steps to arrest President Al Bashir to be in breach of the Constitution and to compel the Government to cause President Al Bashir to be arrested and surrendered to the ICC to stand trial pursuant to the two warrants.” While the Government opposed the application and sought to obtain a postponed until the next day, the High Court made an order prohibiting President Omar Al Bashir of Sudan from leaving the South African territory “until a final order is made in this application, and the respondents are directed to take all necessary steps to prevent him from doing so.” When an emergency order was eventually obtained the following day from the High Court ordering Bashir’s arrest, government lawyers admitted he had flown out of the country just a few hours earlier. Continue reading →

ADC-ICTY Advocacy Training

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Date: 16 April 2016

Location: training will take place at the premises of an international court

ADC-ICTY-300x300The Association of Defence Counsel practising before the ICTY (ADC-ICTY) will be holding an Advocacy Training day conducted by Ms. Colleen Rohan. Ms. Colleen Rohan has been practicing criminal defence for over 30 years. She has acted as defence counsel at the ICTY, the EULEX courts in Kosovo and domestically in the USA. She is a founding member of the International Criminal Law Bureau and a member of 9 Bedford Row International.

The topics which will be covered include drafting motions, final briefs and appeals.

Registration is open to all. Places are limited and are allocated on a first come, first served basis. The registration form is available here. 

For more information, see the flyer or visit the ADC-ICTY website.

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

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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 →

Landmark Rape Convictions of Militaries in Guatemala

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Mayan Women pictured at the trial ©CNN

Mayan Women pictured at the trial ©CNN

Two former militaries were found guilty by a Guatemala court of murder, rape and sexual enslavement of indigenous women and were respectively sentenced to 240 and 120 years imprisonment.

The ruling is the first successful prosecution for sexual violence committed during Guatemala’s troubled decades. The facts date back to the 1980s, during Guatemala’s 36 year-long civil war that only ended in 1996 with the signig of Peace accords. At the time, armed forces repeatedly attacked the village of Sepur Zarco and Mayan communities were caught in the opposition between the army and the leftist rebel groups. As a result, several men were killed and soldiers considered the women as being “available”. It was reported that women were required to report every third day to the base for “shifts” during which they were raped, sexually abused, and forced to cook and clean for the soldiers.

Former Lt. Col. Esteelmer Francisco Reyes Giron, who was the commander of the Sepur Zarco military base, and former military commissioner Heriberto Valdez Asij were found guilty of holding 15 women in sexual and domestic slavery and for killing one woman and her two daughters.

“This is historic, it is a great step for women and above all for the victims,” said Nobel Peace Prize winner Rigoberta Menchu, who attended the hearing.

Event: The War on Terror, Part II: International Law after Paris

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Guest Lecture co-organized by the International Law department of the Graduate Institute of International and Development Studies and the Geneva Academy of International Humanitarian Law and Human Rights as part of the Geneva Academy Wednesdays (GAW) series.

Paris

Date: Wednesday 16 December I 17:30

Venue: Auditorium A2 I Maison de la Paix (Chemin Eugène-Rigot 2 - 1202 Geneva, Switzerland)

Marko Milanović - Associate Professor at the University of Nottingham and Visiting Professor at the Geneva Academy - will explore the key legal issues and challenges arising from the recent attacks carried out around the world by the Islamic State’s followers. In particular, Professor Milanović will address:

  • The interplay between international humanitarian law (IHL), human rights law and terrorism;
  • The geographic and temporal scope of IHL;
  • The law on the use of force, in light of the recent strikes by France, UK and other countries on Syrian soil.

Antonio Coco and Patryk Labuda will serve as discussants, after which the floor will be opened up to comments and questions.

If you plan to attend, please register here.

Victims of US Drone Strike Against The Netherlands

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©AFP

©AFP

Two Somali citizens have taken legal action against the Netherlands for war crimes. The two nomads represented by Dutch lawyers Göran Sluiter and Liesbeth Zegveld, claim that they were hit and lost their two young daughters because of an American drone strike in January 2014. The US operation was meant to eliminate Ahmed Godane and resulted in the killing of several Al Shabaab members. At the time, no civilian casualties were reported by any media or Western officials.

The two victims claim that the Netherlands are co-reponsible for the attack since the Dutch intelligence has been providing crucial information on Somali communications to the US. The Intercept has revealed documentation stating that more than half of US interventions in Yemen and Somalia are informed by meta data, which is often provided by foreign partners. The use of these telecommunication data by the US army is the basis of the case brought by the two Dutch lawyers.

Sluiter, one of the lawyer, criticized the so-called precision of targeted done killings: “Drone strikes are only allowed if there are no innocent victims in the area. But obviously the drones are not controlled with due care”, Sluiter said. Controversies have recently became stronger around drone attack.  According to The Intercept, only 35 out of 200 killings by drone from 2012 to 2013 in Afghanistan were intended targets.

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 →

Russia Opposes France Proposal on Limited Veto Power

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Image1Yesterday, Ambassador Vitaly Churkin held a press conference assuming Russia’s presidency of the United Nations Security Council for September during which he commented on the UNSC reform and proposals on veto limitations. Commenting on the proposed initiative by France to limit UNSC permanent members veto powers, Churkin said it was a “populist” idea and that a compromise on a UNSC reform was nowhere in sight.

Ambassador Churkin has first addressed negotiations around the admission of new permanent members, introducing a third-category of long-term non-permanent members: “We want a historic compromise to be reached between the two main camps: Those who want to have new permanent members and those who don’t want to have permanent members, and advocate a reform with a new category of intermediate countries which will be elected for a longer period of time than the current two years for the current non-permanent members.” Continue reading →

Russia vetoes UNSC Resolution on a Tribunal for Downed Flight MH17

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Debris at the crash site of Malaysia Airlines Flight MH17, near the village of Grabovo, Ukraine ©AP

Debris at the crash site of Malaysia Airlines Flight MH17, near the village of Grabovo, Ukraine ©AP

At the last UN Security Council meeting, held on Wednesday 29 July, the Russian federation vetoed draft Resolution S/2015/562 on the creation of an International Criminal Tribunal for Malaysia Airlines Flight MH17 (ICTMH17). The resolution included a draft Statute providing for the prosecution of suspects accused of downing flight MH17 on 17 July 2014, killing 298 people including 193 Dutch citizens. Eleven countries on the 15-member council voted in favour of the proposal by Malaysia, Australia, the Netherlands and Ukraine, while three countries abstained: China, Angola, and Venezuela.

Earlier on the day, Dutch Prime Minister Mark Rutte had called Vladimir Putin to appeal on him directly to support the creation of the ICT. Based on the Law on International Crimes, Dutch prosecutors have opened an investigation into the crash of Malaysia Airlines flight MH-17 on suspicion of murder, war crimes and intentionally downing an airliner. Russia said discussions on a dedicated ICT should be postponed until the two Dutch-led investigations into the crash release their reports.