Posts Tagged Crimes Against Humanity
For those who are looking for it, the link to watch the ICC Prosecutor’s Press Conference regarding the investigations and prosecutions in the situation in Kenya is the following: http://livestream.xs4all.nl/icc5.asx
The ICC website seems to be down at the moment of writing, but hopefully they’ll get it fixed within the 8 next minutes.
UPDATE: The ICC website is still down, but the livestream is alive and kicking.
UPDATE II: At 12.34 CET, the conference is now over.
UPDATE III: For those who missed the Conference but wish to listen to it nonetheless, RNW has made it available at the following address: http://www.rnw.nl/international-justice/article/ocampo-names-kenyan-suspects.
Twitter will never cease to surprise me. How can 140-character messages be so thought-provoking and generate such pertinent and interesting debates? It’s a mystery, but it’s also a fact.
Today’s post relates to one of Daveed Gartenstein-Ross‘s tweets and the debate that followed. Here is the tweet:
Daveed was referring to Juan Cole’s story on the current violent attacks carried out against Christians in the Middle East, most notably in Iraq but also in Egypt. More specifically, Daveed was commenting Mr. Cole’s concluding paragraph:
The attacks on Christians in Iraq are serious, and hold the danger of ethnically cleansing that community. The threats against Copts, while they cannot be discounted, are less credible and may well backfire.
Juan Cole’s conclusion and Daveed’s reaction ask interesting questions for international criminal lawyers – does ethnic cleansing apply to religious group? And if it doesn’t, then does “religious” cleansing amount to genocide?
International lawyers who are familiar with the debates these notions generate within the international legal community will know what Juan Cole and Daveed Gartenstein-Ross have stepped in, namely how complex and endless these debates are, starting with the question of whether ethnic cleansing is not a form of genocide (recently shut down at least in part in the ICJ’s 2007 Decision in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide – §190), and not to mention the general confusion between “social” and “legal” definitions of such crimes.
Without being so ambitious as to engage in these debates, I would like to clarify a certain number of these notions from a legal perspective.
As promised last week, I am giving you a rapid commentary of the Appeals Chamber’s decision in the Lubanga Trial at the International Criminal Court. I was in the media center of the ICC when Judge Sang-Hyun Song read out a summary of the decisions (the full, authoritative written version of which you can find here and here), furiously taking notes to send to my employer. I am also sharing a slightly modified version of these with you below.
It was an interesting experience, listening to Judge Song reading the summary of the judgment, surrounded by journalists begging for Lubanga to be released in order to “have a story” – that is, be given a free field day to tear the ICC down in articles in order to sell more papers. Needless to say, they were disappointed by the time Judge Song finished reading the summary of the decision. Read the rest of this entry »
I apologize for not having posted anything in what appears to be way too long, even though from my perspective it feels as if it was just yesterday. I have been busy here and there, with work, The Hague, and finishing my LLM dissertation. Now that most of that is behind me, I can get back to this blog, and boy, there’s been plenty to talk about these past few weeks: the UN Mapping Report regarding crimes committed in the Democratic Republic of the Congo in the 1990s, a delicate political situation in Sudan, and some worrisome news from the front lines of the global struggle against terrorism. And let’s not forget the Pope’s visit to the UK, and the temptation by a certain number of people to put him on trial for crimes against humanity.
I will write on some, if not all, of these issues in the following days (again, forgive me for my lateness in reacting to these events), but I want to start off with a post on a NGO project called Darfurian Voices that I came across a few weeks ago. Read the rest of this entry »
In October 2007, John Holmes, United Nations Under Secretary-General for Humanitarian Affairs, told the New York Times:
“The sexual violence in Congo is the worst in the world. The sheer numbers, the wholesale brutality, the culture of impunity – it’s appalling.”
It seems as though not much has changed over the last three years.
Last month, civilians were brutally attacked and raped by armed elements of the Mai-Mai and the Forces Démocratiques de Libération du Rwanda (FDLR), in the North Kivu province of the Democratic Republic of the Congo (DRC). According to Will F. Cragin, the International Medical Corps’ coordinator for the region, between 200 and 400 men entered the village of Ruvungi and systematically raped more than 150 women. The victims, most of whom were raped by two to six men at a time, were often violated in front of their families.
UN Secretary-General Ban Ki-Moon is understandably outraged by the attacks, and has dispatched Assistant Secretary-General Atul Khare, Officer-in-Charge of the United Nations Department of Peacekeeping Operations, to the DRC, and has instructed his Special Representative for Sexual Violence in Conflict, Margot Wallström, to take charge of the UN’s response and follow-up to this incident. But will anyone actually be prosecuted for the atrocities? Read the rest of this entry »
Not that I want to do another blog review so soon, but a recent exchange between Opinio Juris‘ Julian Ku and Foreign Policy The Multilateralist‘s David Bosco on the International Criminal Court has caught my attention. It’s an interesting exchange between someone with a very American and conservative view on the ICC (Julian Ku), and another who’s closer to the center and apparently slightly more favorable – or perhaps “less unfavorable” being a more appropriate expression – to the Court (David Bosco).
You would probably think that I’d take Bosco’s side on this debate, and I wish I were, but – at the risk of not making many friends – I’m going to take neither.
My opposition to Julian Ku is clear, and is one I’m comfortable with. From what I’ve been reading, Julian Ku belongs to the American school of thought that considers the ICC to be a threat to American interests, that the adoption by the Assembly of States Parties at Kampala in June of a definition (PDF) for the Crime of Aggression (Article 5(1)(d) of the Rome Statute – PDF) is a failure for US diplomacy, and that US cooperation with the ICC will lead to nowhere. Read the rest of this entry »
Good news today for any international criminal lawyer interested in the International Criminal Court’s role in bringing perpetrators of mass atrocities in Darfur to justice: Omar al-Bashir, the recently re-elected President of Sudan, has been indicted by the Pre-Trial Chamber I on charges of genocide (here is the document, in PDF).
The Pre-Trial Chamber had refused the first time to charge al-Bashir with the crime of genocide, charging him “only” with crimes against humanity and war crimes, on the ground that the evidence presented by the Prosecutor concerning the crime of genocide did not meet the “reasonable grounds” standard defined by article 58(1)(a) of the Rome Statute. The Chamber considered at the time that the Prosecutor had not sufficient evidence indicating that Omar al-Bashir had specific genocidal intent, a required element of the crime of genocide.
For those unfamiliar with the Rome Statute or genocide as a legal, not social, matter, a brief explanation is I believe necessary. The crime of genocide is a very specific and strictly defined notion. Considered by many to be – in the words of Professor William A. Schabas – the “Crime of Crimes,” it is defined by article 6 of the Rome Statute, which states:
“For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:(a) Killing members of the group;(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.”
The keyword here which I emphasized is “intent”, which is the subject of much discussion among academics and of much misunderstanding between legal scholars and others who adopt a larger, more “social” definition of genocide. As far as international criminal law is concerned, to be guilty of genocide, an individual must have the specific intent to destroy a national, ethnical, racial or religious group. Destruction of such groups without the specific intent to eradicate is not – legally speaking – considered genocide, but falls into the “crimes against humanity” or “war crimes” categories. The former category is known informally among international criminal lawyers as the “bucket crime,” as anything that falls short of genocide ends up being considered as a crime against humanity.
Perhaps another subject of clarification for some but that should appear as obvious to many: under the Rome Statute just like most democratic Western-style judiciary systems, a Prosecutor must convince a Judge that his evidence is solid enough to justify an arrest warrant. In the case of the ICC, the Chief Prosecutor must convince 3 Judges composing the Pre-Trial Chamber, who may or may not issue an arrest warrant as demanded by the Prosecutor. The Prosecutor may, however, appeal the Pre-Trial Chamber’s decision before the – you guessed it – Appeals Chamber (article 57 and article 82 of the Rome Statute).
To return to the ICC and al-Bashir, the first decision by the Pre-Trial Chamber was hotly contested by certain scholars, such as Opinio Juris’ Kevin Jon Heller, who considered that the court’s interpretation of article 58’s “reasonable grounds” requirement was far too strict. The Appeals Chamber later on also sided against the Pre-Trial Chamber’s position in a decision dated on 3 February 2010, lowering the standard of proof initially required.
This led to today’s decision by the Pre-Trial Chamber I to issue an arrest warrant against Sudanese Omar Al-Bashir, this time on the count of genocide.
Battle’s not over yet, in any case. A lot still needs to be achieved. Although Mr. al-Bashir’s traveling plans have been disturbed, he has still not been arrested, has been recently re-elected (which politically always complicates things), and some still see him as taking part in a peace plan, a sad repeat of the “Milosevic Strategy” adopted by the U.S. State Department in the 1990s which had produced mitigated results.
That being said, it is still good news.
PS: I’m looking forward to read Kevin Jon Heller’s perspectives on the latest decision over at Opinio Juris.
Finally, on the arrest warrant and the question of head of state immunity, see Dapo Akande’s post over at EJIL: Talk!