Posts Tagged Internal Conflicts

Lubanga’s Release by ICC Trial Chamber I: Good News or Bad News for International Criminal Justice?

ICC LogoAs many of you probably have heard by now, Trial Chamber I of the International Criminal Court has ordered the release of Thomas Lubanga Dyilo in an oral hearing following a decision last week imposing an unconditional stay on the proceedings of the case. Mr. Lubanga is a Congolese warlord who was put on trial in the ICC on charges of war crimes committed in the rich Ituri region of Congo, war crimes related to the enrollment of children in his armed group. Arrested in March 2005, his trial started on 26 January 2009. He is the first accused to face trial before the ICC, and so far it’s looking like it’s heading towards a complete fiasco. The Trial Chamber gave the OTP 5 days before it implemented its decision and Mr. Lubanga can walk free, in order to give the Prosecutor a chance to appeal, which it probably will do (UPDATE: Prosecutor announced that he has appealed).

The issue at hand. So why did the Court decide to stay the proceedings of this case and a few days later order the release of Mr. Lubanga? Apparently, the OTP (Office of the Prosecutor) committed a series of procedural irregularities by trying to conceal documents, and in particular the name of a key witness – only known as ‘intermediary 143’, from the defense and the judges, and this despite several orders by the Trial Chamber to release such information.

Clearly, there’s something of a problem when the Prosecutor refuses to abide by the orders of the Chamber. As Kevin Jon Heller writes (in the comments sections): “Prosecutors do not get to ignore court orders.  Period.  If they do, they should be held in contempt and, if the relevant rules provide, removed.

The OTP, for its defense (there’s some irony in there…), claims that it is bound by an “independent statutory obligation” to Protect Witnesses, on the grounds of article 54 of the Rome Statute. According to the OTP’s position, it has a statutory obligation to protect witnesses from foreseeable risk, independently from whether the Chamber itself considers that the circumstances do not pose a risk to the said witness. To which the Chamber answered rather dryly  (from Dov Jacobs’ post): “No criminal court can operate on the basis that whenever it makes an order in a particular area, it is for the Prosecutor to elect whether or not to implement it, depending on his interpretation of his obligations.” (§27).

For a deeper discussion on the validity (or lack thereof) of the OTP’s claim that it is bound by an “independent statutory obligation,” see another one of Kevin Jon Heller’s post at Opinio Juris, where he considers that there is no such obligation.

My expertise in ICC Procedural Rules is still rather limited (hoping that will change in the future), but on principle I have to agree with the Court and Professor Heller. A Prosecutor must obey the Court. End of story, no discussion. Any exception to that rule opens a Pandora’s box that could lead to some serious judicial dysfunctionality.

The difficulty of protecting witnesses in a conflict zone. That being said, I think this situation raises the issue of protecting witnesses within the framework of the recent international criminal justice system that are still located in conflict zones. The purpose of international criminal justice is to bring law and order in lawless and chaotic situations, protecting victims from their tormentors, but as we have observed again and again since the 1990s, there’s only so much Justice can do without the international community’s backings, especially in terms of logistics and soldiers to enforce their decisions. International criminal justice has to make do with this reality, which won’t change anytime in the near future. This gives us the opportunity I believe to reflect a bit further on how far international criminal justice can go to protect its witnesses without causing the trial to be unfair.

How this is also good news for International Criminal Justice. So, how is this a good thing for international criminal justice? On a first approach, it looks bad. The trial of the first accused before the ICC, who was on trial for the past 18 months, is appearing to crash and burn due to errors by the OTP. The Court’s detractors and doubters (and there are many of them out there) will probably have a field day with this.

But there’s also good news involved. As Mark Kersten writes in his blog,

“The decision illustrates the effective working of procedural law at the ICC. (…) This decision flies against popular assertions by the Court’s detractors that it’s a Western, imperial Court meting victor’s justice. The decision to uphold important procedural law at the Court by its judges in the favour of the alleged war criminal severely weakens  claims of victor’s justice.”

There has been a lot of muttering, in Africa and elsewhere, that the International Criminal Court is really the “African Criminal Court”, as it has so far only operated in Africa, and that it is, as Mark mentions, a neo-colonialist or imperialist European-based Court and the latest weapon white men found to dominate the Continent. This decision proves otherwise: the Judges of the ICC are independent, honest and rigorous. They will uphold procedural rules in order to guarantee a fair trial, even at the risk of letting a known warlord walk. And that’s, believe it or not, a very good thing for the credibility of the international criminal justice system.

Fairness is essential for international criminal justice. In the words of Judge Richard Goldstone: “the success of international tribunals will be tested by whether the trials were fair.” (in M. Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Beacon Press, Boston 1998), p. 26)

What future for ICC Chief Prosecutor Luis Moreno-Ocampo and Mr. Lubanga? This could put Luis Moreno-Ocampo on the hot seat. After several blunders as Chief Prosecutor, some legal scholars, such as previously mentioned Opinio Juris’ Kevin Jon Heller, are starting to call for his removal by the Assembly of State Parties, as is made possible by article 46 of the Rome Statute. As for Mr. Lubanga, maybe he will be having dinner with Professor William Schabas, while the rest of us hope he will not be going back to Congo and return to his former activities.

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Latest News on Conflict Minerals – Victory in U.S. Congress

After writing about Congo’s conflict minerals and NGOs such as the Enough! Project‘s efforts to alert public opinion, good news recently came out of the United States Congress.

From the Enough! Project’s website:

Today, Congo activists, U.S. consumers, and the people of Congo won an incredible victory against long odds. Congress passed the Wall Street reform bill with the inclusion of a key provision on conflict minerals. The conflict minerals language requires companies that use tin, tungsten, tantalum, or gold in their products to file a disclosure report with the Securities and Exchange Commission detailing whether these materials originated in Congo or its adjoining countries. And thanks to you, the bill requires companies to audit these reports to actually prove whether they are sourcing from conflict mines or not.

While passage of the conflict minerals provision is not a cure-all for completely ending the war in Congo, it is a huge step forward. This new law – once it is signed by President Obama – begins to eliminate the source of funding that allows armed militias to continue to terrorize and humiliate communities, cause countless deaths, and commit widespread sexual violence and rape.

While the fight is not over, activists should be very proud of this impressive victory and deserve to relish in this moment. Across the United States, Congo activists, members of the diaspora, and concerned consumers – the growing movement across America that sees the urgency in ending the world’s deadliest war – rallied around the passage of this legislation. They overran the Facebook pages of elected officials, followed up with phone calls, met face-to-face with their representatives, and called on industry leaders to clean up their supply chain.  Senators Sam Brownback (R-KS), Dick Durbin (D-IL), and Russ Feingold (D-WI), Representatives Jim McDermott (D-WA), Howard Berman (D-CA), and Donald Payne (D-NJ), Chairmen Chris Dodd (D-CT) and Barney Frank (D-MA), and many other brave members of Congress also deserve special praise for taking a major step to ending the neglected conflict in eastern Congo. These are just some examples of the creative advocacy that has helped elevate the issue of conflict minerals to reach today’s tipping point.

From the day President Obama signs the bill, the Securities and Exchange Commission will have nine months to promulgate regulations implementing the new law. It will be up to us to ensure that these regulations are as strong as possible. While the jewelry and manufacturing lobbyists were caught off guard by the conflict minerals language and weighed in too late to remove the language, you can be sure industries will fight to make sure the regulations implementing the law are as weak as possible. As this story continues to develop, we’ll be coming to you with new ways of getting engaged. Please stick with us.

Congratulations on today’s exciting victory!

Good news indeed.

A little reminder video on what’s wrong with conflict minerals and consumer electronics:

UPDATE: A nice piece about this in Newsweek: The Genocide Behind Your Smartphone.

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Sri Lanka vs. UN: 1 – 0

As international lawyers, we are made well aware from the beginning that the “international rule of law” that we work and hope for is a fragile and imperfect concept, constantly challenged by realpolitik and the Westphalian State-centric international system. The current situation in Sri Lanka is a testament to the difficulty of establishing that international rule of law.

So what is going on in Sri Lanka? This week, hundreds of protesters, under the leadership of a (now former) government minister, have laid siege to the United Nations compound in Colombo, refusing to let workers out until the U.N. cancels its investigation of alleged abuses (second edit: Bad choice of words, the UN is not investigating abuses, only thinking of ways to punish the alleged crimes. The UN has no direct jurisdiction over war crimes: they’d have to refer it to the ICC, or create a new ad hoc tribunal) committed during the 25-year civil war there. Demonstrators burned effigies of Secretary General Ban Ki-moon and blocked the police’s attempt to free the workers.

To understand the reason behind this violence directly targeted at the United Nations, a brief summary of events is required. Sri Lanka, formerly known as Ceylon, is a large island off the coast of India in which a civil war that has lasted for more than 25 years was brought to a bloody end last year. The civil war, which has opposed since its start in 1983 the Sri Lankan government against the Liberation Tigers of Tamil Eelam (LTTE, but more commonly known as the Tamil Tigers) who fought to create an independent state on the island for the Tamil minority. During the first half of 2009, the Sri Lankan army defeated, at last, the LTTE by resorting to methods that involved heavy bombings, including of civilians and hospitals, torture, and the holding of everyone, combatants and non-combatants, in prison camps that were out-of-bounds to journalists and international non-governmental organizations. Edit: I should mention that government forces are not the only ones suspected of having committed war crimes. The LTTE are also accused of breaches of international humanitarian law such as the use of human shields (see below in comments).

The United Nations vs. Sri Lanka. Following the Sri Lankan victory, the United Nations was put under pressure for its passivity during the conflict, in particular by Louise Arbour, the head of the International Crisis Group (ICG). The ICG published a report in May 2010 in which it denounced the breaches of international humanitarian law by both the government and the LTTE during the final months of the conflict. In an interview with Foreign Policy editor and Washington Post U.N. correspondent Colum Lynch, Arbour – a well respected lawyer from Canada, who contributed to the success of the International Criminal Tribunal for ex-Yugoslavia as its Chief Prosecutor from 1996 to 1999, as well as a former UN High Commissioner for Human Rights and former Supreme Court Justice of Canada – directly criticized the UN for its inaction during the final months of the Sri Lankan conflict and its failure to push for an independent investigation into alleged war crimes afterwards.

Ban Ki-Moon has since named a three-member panel composed of Marzuki Darusman of Indonesia, Yasmin Sooka of South Africa, and Steven Ratner from the U.S charged with finding ways to punish the alleged war crimes. The creation of the panel has sparked criticism from international heavyweights Russia and China, which both wield veto power at the UN Security Council, and that may cause trouble in the future. The Non-Aligned Movement, composed of 188 developing countries, also support Sri Lanka‘s refusal to investigate war crimes.

It is in “protest” (if we can call it that) against this panel and its work that nationalist mobs have been holding U.N. employees prisoner in their own offices.

Epilogue? The end of the story, at least for now, is that the U.N. are retreating from Sri Lanka. Ban Ki-Moon has recalled the resident coordinator in Sri Lanka and decided to close the United Nations Development Programme (UNDP) Regional Center in Colombo. The Secretary General maintains however that the panel will continue with its work.

A dangerous precedent must not be allowed to be set. The situation in Sri Lanka, as it stands today, cannot be tolerated by the international community, and this for two reasons.

First of all, the United Nations is a respected, legitimate international organization concerned with international peace and security. It is unacceptable that a State, and a Member State at that, can bully the UN towards the door using methods worthy of thugs. Allow me to cite a short excerpt from the United Nations Charter that is unfortunately way too often forgotten:

Article 2(5): All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.

(Emphasis is mine)

Way to go on that one, Sri Lanka. Such actions only contribute to decredibilizing the UN’s actions when – for all its faults – millions of lives worldwide depend on it.

Second of all, and perhaps even more importantly, I concur with Mark Goldberg’s analysis over at UN Dispatch that accountability for war crimes matters. Not only does it matter, it is essential. In war, the means must never justify the end, and yet the Sri Lankan army has (allegedly) gone to great and bloody lengths to put an end to the civil war, defying elementary rules of international humanitarian law such as the principle of proportionality and the principle of distinction between civilians and combatants. As Mark Goldberg writes: “if these crimes go unpunished, what is stopping other countries with persistent insurgencies to adopt the “Sri Lankan method” of fighting terrorism? The answer is nothing.

Today’s international context is (at least in part) about the global fight on terrorism, and all the dangers that it involves, as has been often observed (Guantanamo Bay, Abu Ghraib, Bagram Air Base, etc.) It is the responsibility of the international community, and of the UN Security Council in particular, to guarantee global peace and security, and that is clearly under threat when we allow for such ruthless violence to go without consequences.

With the forced withdrawal of the United Nations from Sri Lanka due to an investigation into war crimes, the international rule of law has suffered a great blow and humiliation. It is the international community’s responsibility, and its interest, not to let that humiliation go unpunished. Will it rise to the challenge? Nothing is less sure.

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