Posts Tagged War Crimes

The War Against Rape

This is a post to praise UN Security Council Resolution 1960, passed on December 16 2010, which constitutes a step further to stop sexual assaults against women.

It finally allows public shaming of armed groups who have been proven to sexually abuse women. It also spells out instructions to end the practice and avoid future shaming. However most importantly sends a clear message that using rape as a weapon of war can lead to sanctions. The reason I bold rape as a weapon of war, is because I find it to be an under looked point, and one of the most serious war crimes. This type of sexual abuse is man’s lowest quality, and the worst form of obsession. No woman should be degraded in this manner.

So I would like to congratulate the UN Security Council for this strong step to stop these harness abuses, and quote Marianne Mollmann, women’s rights advocacy director at Human Rights Watch.

“Today is a big day for women worldwide.”

Of course as a side point which I often mention at the end of my posts, the question that arises is: why has this taken so long to be achieved?

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A Late Reaction on Omar Khadr, the United States, and Child-Soldiers

I came across this interesting piece of information today: France pressed U.S. on Khadr as Ottawa stood silent: WikiLeaks. According to this article:

France’s foreign minister asked the United States to consider releasing Omar Khadr from Guantanamo Bay even though the Harper government adamantly refused to intervene, according to leaked U.S. diplomatic cables.

The memo, released by WikiLeaks, shows that Bernard Kouchner, who was French President Nicolas Sarkozy’s foreign minister until three weeks ago, personally asked U.S. Secretary of State Hillary Clinton to review the case in a meeting in February of 2009.

Oddly enough, France, a country which has, to my knowledge, no relation whatsoever with Mr. Omar Khadr, tried to plead his case before the American authorities even though the country of Mr. Khadr’s nationality, Canada, refused to.

Aside from the oddity of it all, that’s not really what made me jump to the ceiling. It turns out – and I do realize I’m about seven years late into this debate – that Mr. Khadr was “arrested” on the battlefield in Afghanistan, wounded, at age 15:

Khadr is the last Western prisoner at the Guantanamo Bay detention centre. He has been held at the American naval base since October 2002, accused of killing a U.S. soldier in Afghanistan.

The Pentagon said that after a July 2002 attack by U.S. forces on a suspected al-Qaeda compound, Khadr threw a grenade that killed one soldier, Sgt. Christopher Speer, and wounded another.

Khadr was 15 at the time. His defence team argued that their client was a child soldier and should be treated as a victim.

No kidding. I have heard of the Khadr case, like everyone else, for a long time, but bizarrely enough, that piece of information had escaped me until today. Read the rest of this entry »

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A Rapid Commentary of the Appeals Chamber’s Decision in the Lubanga Case

Thomas Lubanga, left, and Judge Song, on the right. Photo ICC.

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 »

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The “Peace versus Justice” Debate: Views From the Darfurian Refugee Camps

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 »

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What Legal Response To Mass Rape in the Congo?

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 »

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The David Bosco v. Julian Ku Debate on the ICC, and I’m disagreeing with both

The International Criminal Court, photo from the Coalition for the ICC's website

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 »

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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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Good News for the ICC and ICL: Second Arrest Warrant Issued for Omar Al-Bashir

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.

See also Jurist.org’s summary of the news. For a very interesting, but less legal perspective, see Mark Kersten’s Kolumn’s post on this.

Finally, on the arrest warrant and the question of  head of state immunity, see Dapo Akande’s post over at EJIL: Talk!

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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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