IJCentral: International Justice Central

El Salvador did not sign the International Criminal Court (ICC) Statute, but participated actively in the Rome Conference in 1998. Since the ICC came into effect, El Salvador has not participated in the meetings and has adopted a negligent attitude towards the Court, including the adoption of a bilateral agreement with the U.S. by which both parties agreed that their nationals would not be transferred to the ICC if they commit crimes under the Court’s jurisdiction.
But, in 2010, things began to change: mid and high level officials of the Salvadorian government participated in official meetings, a number of events were organized within the country and ICC officials paid several visits. This provoked such remarks from the Salvadorian Minister of Foreign Affairs, who stated that the visits of ICC officials served “to continue the phase of consultation and technical input from experts, interested organizations and institutions that specialize in the subject in order to enrich the discussion and allow a period of more fruitful legislative discussions and with stronger evidence to establish the necessary consensus concerning membership or non-membership of El Salvador to this important instrument in guaranteeing human rights worldwide.”
Salvadorian officials argued that in order to become party to the ICC, the National Constitution had to be amended. NGOs and academics worked on different proposals and submitted them to the government. The most important challenge identified by NGOs was related to the statute of limitations for international crimes, the amnesties and immunities.
However, a few weeks ago, the Minister of Foreign Affairs stated that the ratification bill- currently at the Executive Branch- was going to be sent to the Legislative branch for vote. The Minister said that the country would join the ICC, but will make some “reservations”. What the Minister did not know is that the Statute does not accept reservations: states must accede ‘entirely’ to the Statute.  He highlighted that the ‘reservations’ that will be made are related to the retroactivity of the ICC statute and to life imprisonment. Another mistake: the ICC Statute is crystal clear on article 24. The ICC jurisdiction is non-retroactive. In terms of life imprisonment, that punishment is currently being discussed by the judicial branch, because, although it is not legal under the Salvadorian system, people do spend their lives in prison.
Therefore, the reservations highlighted by the Minister are not legally accurate.
Willingness

We aknowledge the willingness of the government to become party to the Rome Statute and the momentum: a few years back, it would be been unthinkable to see a Salvadorian official speaking highly of the ICC. It was simply ignored. Still, education and training on the Rome Statute is a must- do in the country.

The Rome Statute system is an exceptional mechanism. The Court will only act against the most serious crimes and it’s the duty of the national courts to address crimes committed within their territory. The Court will only act, if national courts are unwilling or unable- the ratification can serve as a step and a contribution to strengthen the judicial system and the Rule of Law.

Hopes are high, and 2012 will be remembered as the twentieth anniversary of the adoption of the peace agreements, which ended the 12-year long armed conflict. It also marks the first time a Salvadorian president asked for forgiveness for the crimes committed in the Mozote Massacre.

Belissa Guerrero Rivas is a Salvadorean Lawyer.
Mariana Rodriguez Pareja is the Director of the Human Rights Program at Asuntos del Sur (ADS) Twitter handle: @maritaerrepe

This year is very signitifative for the International Criminal Court (ICC): the tenth anniversary of the entry into force, the beginning of the term-in-office of the new Chief prosecutor Fatou Bensouda, who will replace Argentine-born Luis Moreno Ocampo; and the first ruling in history for the case against Thomas Lubanga, for the recruitment of child soldiers in the Democratic Republic of the Congo was rendered in March.

As of today, 121 countries have ratified the treaty and the ICC is currently investigating 14 cases in 7 different countries. Regardless all the advances, we believe that there are many challenges to be faced and other obstacles to be undercome. One central issue of the ICC is cooperation, something that could seem superfitial for those who are not familiar with the ICC, but it is fundamental for the ICC. Without cooperation, the ICC cannot act effectively.

The ICC and the OAS

Both the ICC and the IACHR (Inter-American Commission on Human Rights)  pursue one common goal: the erradication of impunity for human right violations. After the adoption of the Rome Statute of the ICC in 1998, several resolution promoting and supporting the ICC have been adopted by the OAS, as well as a draft model-legislation to contribute OAS member States in the implementation of principles and cooperation mechanisms. The adoption of a Cooperation Agreement on April 26, 2012 is a significant push towards the strengthening of this relationship.

According to the information provided by the IACHR, the agreement “provides for the possibility that each party will provide the other with information on decisions, resolutions, judgments, reports, and documents, which could prove useful in processing cases and carrying out the mandates of both institutions. 

Why is cooperation central to the ICC? The ICC is a judicial institution and the jurisdition is complementary to the one of the States parties to the Statute. The ICC does not have its own police or armed forces and it does not have its own prisons. Therefore it is critidal for the ICC to be able to rely and count on States or international institutions in order to carry out its mandate effectivetly. Cooperation implies much more than the signing of an agreement with the IACHR. When the ICC signs a cooperation agreement with a State, it involves the adoption of cooperation laws at the moment of implementing the Rome Statute in the local system.

It cannot be ignored that the international financial crisis has an impact at every level, including the ICC- so, in order to maximize efforts and resources, cooperation must be pursued and put into practice. The Court should be able to rely on existing effective both infrastructure and mechanisms.

The Inter American System

The Inter American system has been understimated for many countries. Other countries, simply forget it exists or do not follow the rulings. Even in many Law schools in the region, the IA system is excluded from the syllabus, leaving the matter to experts only, when it should be a system widely known by every person- since the Inter American Convention for Human Rights serves as one of the basic HR instruments for all States parties to the OAS.

Despite the lack of comprehensive legislation on International Criminal Law in most of the OAS states, many of its core principles are already binding on them through the 1969 American Convention on Human Rights and the rulings of the Inter-American Court of Human Rights. This regional tribunal has significantly contributed to the prosecution of crimes against humanity, especially enforced disappearances and torture.
Although the cases examined by the Inter-American Court are different from those that fall within the jurisdiction of the ICC, the Rome Statute has been a valid interpretative tool to determine State duties regarding the protection of human rights.

The ICC and the IACHR is definitely a good match: now let’s make sure all the OAS states become parties to the ICC system and that they both commit and achieve their goal to put an end, prevent and/or punish to the worst crimes and bring justice to victims.

*Mariana Rodriguez-Pareja. Director of the Human Rights Program at Asuntos del Sur (ADS). Twitter handle: @maritaerrepe

Salvador Herencia-Carrasco. LL.M. University of Ottawa, legal adviser to the Andean Commission of Jurists. Email: (JavaScript must be enabled to view this email address)

Mariana Rodriguez Pareja and Salvador Herencia Carrasco join JiC again with this fascinating guest-post on Guatemala’s ratification of the Rome Statute and the country’s ongoing legal and political struggles to address the past and achieve justice.

Ratification done, implementation next?

On April 2, 2012, the Guatemalan government filed the depository instrument of the Rome Statute before the United Nations, becoming the 121 State Party of the International Criminal Court (ICC). With this ratification, Cuba, El Salvador and Nicaragua are the only Latin American countries that are yet to be a part of the ICC. The good news is that El Salvador has publicly announced its intention to ratify the treaty by the end of the year.

In 2002, the Guatemalan Constitutional Court rendered an Advisory Opinion concluding that the Rome Statute was compatible with the Political Constitution. Since then, objections towards the treaty have been political, rather than legal. With the ratification of the Rome Statute, the long road towards implementation begins. Indeed, we it is important to bear in mind that countries like Bolivia, Ecuador, Mexico and Peru (to name a few) have ratified the treaty many years ago but have yet to fully implement the Rome Statute.

In the case of Guatemala, the importance of this ruling resides in the fact that the Constitutional Court determines that the Rome Statute is a human right treaty which, according to Article 46 of the Constitution, has the highest legal standing, forming part of the bloc de constitutionalité. This means that the Rome Statute and the principles it stands for have Constitutional standing in Guatemala. In a country that is dealing with the prosecution of international crimes perpetrated during its Civil War, principles such as non-statutory limitations, the non-applicability of amnesties or the validity of immunities might contribute in the local judicial proceedings.

Like many Latin American countries, the Guatemalan Criminal Code criminalizes torture and enforced disappearances. These crimes were adopted in 1995 and concern the fight against organized crime, rather than the fulfillment of International Human Rights Law or International Criminal Law. The Criminal Code also has a section on international crimes including genocide, where racial groups are excluded and a generic norm called ‘offenses against duties to humanity’ (deberes contra la humanidad), which seeks to regulate all violations of the Geneva Conventions and International Humanitarian Law.

(Photo: RNW/Flickr)

National Prosecution of Dos Erres Massacre: slowly but surely

On 2 August 2011, a local tribunal in Guatemala City sentenced four former soldiers from an elite unit of the Armed Forces Kaibil to 6006 years each for the massacre of Las Dos Erres. This was welcomed by the victims, their families and the international community and it served to advance the country’s process of recovery and set an important precedent for justice in Guatemala.

Nevertheless, setting another important precedent, in March 2012 a fifth soldier was sentenced for the same massacre. Pedro Pimentel Ríos was sentenced to serve 30 years of prison for each victim killed in the attack and 30 years for the perpetration of crimes against humanity.

The process against Pimentel, who was deported from the United States as an illegal alien in 2009, was advanced separately from the first mega trial. Although Guatemala’s criminal laws allows inmates to serve a maximum of only 50 years, these sentences play a symbolic role.

Former President Rios Montt appeared for the first time in a Guatemalan court in January 2012, where he will be prosecuted for counts of genocide and crimes against humanity. He is accused of ordering killings of at least 1,700 innocent Maya indigenous people during a government crackdown on leftist insurgents. General Efrain Rios Montt, who ruled the country for 17 months during the height of the violence in 1982/1983, has since been placed under house arrest and the judge announced that there was sufficient evidence for him to stand trial in Guatemala.

This marked the first time that a Latin American court has charged a former president with genocide. The fact that he was placed under house arrest and that he might be tried has been widely viewed as a huge victory for those in Guatemala who have fought relentlessly for accountability for the crimes committed under Rios Montt’s command in the 1980s.

Guatemalans protesting the disappearance of relatives during the Civil War.

The challenges ahead

Despite these significant developments, the situation in Guatemala remains shaky. The problem of organized crime is jeopardizing security, forcing the (re)militarization of the country. The ratification of the Rome Statute will hopefully instigate an open debate about the proper domestic incorporation of international crimes, as well as the adoption of a National Human Rights Plan. Considering the security problems that Guatemala is facing, due to drug trafficking and organized crime, these legal and institutional reforms should be of the highest priority.

Check out this great new video from Urgence Darfour’s “Stop Bechir” campaign. Watch the video and then sign the petition here.

The Board of Directors is accepting applications for the position of Editor-in-Chief of Eyes on the ICC, CASIN’s flagship academic journal on the International Criminal Court. Junior faculty, postdoctoral fellows, PhD candidates, law school graduates, and advanced graduate students are especially encouraged to apply. The deadline for applications is April 20, 2012.

Eyes on the ICC is the only peer-reviewed, scholarly journal devoted to the study of the International Criminal Court. It has been published since 2004 by the Council for American Students in International Negotiations, a non-profit, non-partisan organization composed of a network of students and young professionals from around the world.

Eyes on the ICC is an interdisciplinary journal that invites submissions from any field that addresses the International Criminal Court or international criminal law more generally. Past editors have come from the fields of international law, international relations, and sociology. To view current and previous volumes, please visit the journal’s website: http://www.americanstudents.us/journals/eyesontheicc/.

JOB DESCRIPTION:

The Editor-in-Chief (EIC), with the assistance of the Managing Editor (ME) and 5-7 Assistant Editors (AEs), will be responsible for producing one volume per publication year, comprised of at least five articles, with a camera-ready manuscript due on December 1. Submissions are accessed via Expresso as well as through direct e-mail contact between authors and the EIC or the ME. The EIC reports to the Publications Committee of CASIN’s Board of Directors.

Additional obligations will include:

- Assisting in managing submissions received via Expresso as well as through direct e-mail contact with ME or EIC;

- Managing the peer review process;

- Making article selection decisions based on reviews of Editorial Staff;

- Assisting with final editing of all accepted articles and assisting with intermittent contact with authors throughout selection process as necessary;

- Supervising the ME;

- Maintaining regular contact with ME (who manages most of administrative editorial process);

- Maintaining regular contact with Publications Committee of the Board, Peer Reviewers, and Editorial Advisory Board;

Please note that this is a virtual position. Work is coordinated predominantly through e-mail and other forms of electronic communication. Please also note that this position is offered without compensation.

REQUIRED QUALIFICATIONS:

- Demonstrated knowledge of the International Criminal Court and international criminal law;

- Editorial/publication experience in an academic setting;

- Experience supervising and managing others.

- Strong writing, research, and interpersonal skills;

- Comfort working closely with virtual staff and board;

- Strong communications skills and availability to respond promptly to e-mail communications;

- Strong commitment to international human rights, criminal law, and/or social justice;

- Reliable, organized, team-oriented, and able to meet deadlines.

- Master’s degree or equivalent in a related field;

PREFERRED QUALIFICATIONS:

- Experience working directly with international criminal courts and/our tribunals;

- Contacts with academics and practitioners within the international criminal law field;

- Experience with the Chicago Manual of Style and The Bluebook system of citation;

Address all questions to (JavaScript must be enabled to view this email address). Only qualified applicants will be contacted by early May 2012.

The International Peace Institute (IPI) held a panel discussion on International Justice in Times of Transition, focusing on the relationship between peace and justice in the context of recent developments and transitions throughout the world. Welcome remarks were given by Jozias van Aartsen, mayor of The Hague, and Warren Hoge, IPI senior adviser for external relations, moderated the debate.

Video streaming by Ustream

In March 2012 in cities around the world, people sat anxiously in front of their computers to focus their attention on a 30-minute video. The face of one African man became more famous than ever before as the narrator detailed his use of children under the age of 15 for brutal hostilities in Central Africa. Celebrities watched on in awe, and social media erupted with the reactions of civil society.

I’m actually not talking about the controversial “Kony2012” video by Invisible Children that has taken the word “viral” to new heights.

I refer instead to the International Criminal Court’s March 14 conviction of Thomas Lubanga Dyilo for the war crimes of conscripting, enlisting and using child soldiers in the Democratic Republic of the Congo. While Angelina Jolie looked on from the gallery, distinguished English barrister Judge Sir Adrian Fulford solemnly read out the decision detailing Lubanga’s crimes. Though the unanimous decision from the judges was in large part a stern reprimand towards the recklessness of the Prosecution, it was the defense team who seemed to shrink in their seats with every passing minute.

Despite its many setbacks and valid critiques of the case, the Lubanga decision marked the completion of the first case before the world’s first permanent international criminal tribunal. It may not have reached the 100 million or so viewers that the Kony2012 film boasts, but set against the long arc of history’s battle against impunity crimes, the Lubanga verdict will have resonance for hundreds of years to come.

The ICC is the result of a century of visionary contributors who imagined a different system to punish atrocity crimes. It’s been called the most important legal advancement since the Magna Carta. At the helm of this colossal effort have been diplomats, lawyers and academics, steered true by the compass of civil society. Today, civil society (as members of the international NGO Coalition for the ICC) continue the daily fight for an effective, fair and independent ICC, despite enormous challenges facing the Court and its 120 member states in ensuring the functionality of the Rome Statute system.

One of these challenges, perhaps the greatest, has been the cooperation of these states to assist in the arrest and transfer of ICC indictees to The Hague. Kony is just one of a handful of powerful men still at large, and even the ones who are thought to be hiding, even UCLA can’t help but run into them.

Invisible Children Takes the Stage

Rewind back to 2011. On a cold New York City night in late December, I met the founders of Invisible Children at the Justice Gala, an event where Invisible children received a Justitia award for “Civic Campaign of the Year.” The front tables were packed with the international ICC cadre of politicians and diplomatic heavy weights, who had converged for an annual meeting of the ICC’s governing body at the UN. Among them was ICC Chief Prosecutor Luis Moreno Ocampo, a fervent supporter of Kony2012.

The award was warranted, if only because Invisible Children is so well funded they’re hard to ignore (apparently, international diplomats and high school students alike are attracted to shiny, pretty things). The Kony2012 campaign, as introduced to the gala, was to be game-changer, a “get him once and for all” mission. I’ll admit, it was exciting: Kony was going to The Hague, no matter what. Enforcement crisis solved. And the crowd went wild.

Two months later, the romance with Kony2012 is over. The Kony2012 buzz from media and the blogsphere are nearly as staggering as the video’s hits on YouTube. The responses range from serious critique, to the woefully defensive, and at least one in the form of a drinking game.

So, it’s of no surprise that Ugandans were so outraged over the video that a Kony2012 screening turned violent, and future local screenings have been cancelled to avoid further embarrassment for Invisible Children. Last week at an international student conference about the Lubanga trial in The Hague, development veteran and head of the ICC’s Trust Fund for Victims Kristin Kalla summed it up when she said it was “clearly an American campaign, not a Ugandan one.”

The myriad of problems with Kony2012 I think has been already well articulated by these Ugandans, as well as experienced campaigners who know how to read past the hype. Now that we’ve gone round the block and the global attention span is moving on, it’s time to start asking Invisible Children about their future.

What’s next for Invisible Children?

Part of what Invisible Children has succeeded brilliantly in doing is seizing- and in some cases, sparking- a moment of education in students, an “A Ha!” moment (nowadays, more like an “OMFG” moment) where the rose-colored windows looking out at planet earth are shattered. The flood of member testimony on their website shows the genuine passion of their activists, determined to make a better world.

And really, who are we to say we were never one of them? Most of us working in international affairs or justice can remember such a moment, when the brutal reality of the suffering of others was presented for the first time. It’s only natural to seek the company of others struggling with the same question: “what can I do?” and cling to narrow campaigns with a good guy vs. bad guy narrative.

But as their young members grow up and begin thinking critically about the world beyond one weakening rebel group from Uganda, Invisible Children will have to meet their members’ desires for participating in a true movement for ending impunity for atrocity crimes. This, I believe, will come in the form of supporting new systems of ending impunity: the International Criminal Court, for one.

While the ICC is a part of the Kony2012 formula, Invisible Children didn’t always support the role of the ICC in Uganda. Initially, they took objection to the ICC in Uganda, similar to that of their anti-ICC Save Darfur counterparts, back when the notion of the ICC blocking a potential peace agreement was still quite popular. Today, it’s of no surprise to watch much of the Darfur student movement grow into a broader coalition working against genocide in many different parts of the world, naturally including robust support of a fair and effective ICC.

So, like so many organizations before them, it seems Invisible Children will seek larger impact and more critical thinking about their work.  As it has been ever-so-subtly pointed out here, in real life, “you don’t get to throw the Emperor down a shaft in the Death Star and watch all the bad guys crash and burn.” So while I think it’s safe to assume Invisible Children’s members have more intellectual capacity than Jason Russell’s Star Wars obsessed toddler, we should still press the group to take to heart the lessons from the Kony2012 critiques.

It’s time the organization ask themselves how they can help ensure the United States seeks justice for war criminals beyond the LRA.

Here’s how:

Fully Incorporate the ICC into the work of Invisible Children
Invisible Children should incorporate the ICC into all aspects of their work. Their chapters in the United States can use educational materials on the Court such as the excellent documentary film “The Reckoning” from Skylight Pictures, and collaborate with new campaigns from Amnesty International that seek the arrest of ICC indictees. Their initiatives on the ground in Uganda should seek collaboration with the many projects of the ICC’s Trust Fund for Victims in targeted communities.

Join Existing ICC Networks in the US
An essential part of seeking effective social change is finding your partners. Invisible Children could affirm their commitment to the ICC by joining the American NGO Coalition for the ICC (AMICC), coordinate their lobbying on The Hill with the Washington Working Group for the ICC (WICC), and join in on coordinated statements to lawmakers like the recent letter about the Lubanga verdict. Their student members can collaborate with the expanding ICC Student Network (ICCSN), and follow the work of the global civil society network (CICC) to keep their members informed on the activities of the Court. They can also join hundreds of global NGOs that participate as observers in the annual meetings of the ICC’s Assembly of States Parties meetings.

Engage Washington on the ICC
Though the US is not a member of the ICC, non-states parties can still have a huge impact on how cases progress. Though it is a fully developed institution, the ICC still needs a vital civil society movement to encourage the United States government to stand ready to assist the ICC. The US is now a non-party partner to support the work of the ICC, yet the US has only started to share information and resources with the ICC’s Office of the Prosecutor, a relationship which requires public support and encouragement. Invisible Children can remind President Obama and lawmakers in Washington that the ICC is helping to fight impunity for abuses against children in other conflicts around the globe, and the United States can use its influence to assist justice efforts. For example, Invisible Children can continue to support legislation like the Rewards for Justice Program and other initiatives aimed at apprehending individuals suspected of committing atrocity crimes. 

If Invisible Children reassessed how they approach their “movement” building and chooses to engage with the ICC community, their members can work to protect victims of atrocity crimes wherever they occur. By moving the US towards a future of collaboration and support of the ICC, Invisible Children can secure their place in history’s long evolution towards meaningful systems of accountability.

The recent spotlight on Joseph Kony, the Ugandan leader of the Lord’s Resistance Army charged by the International Criminal Court (ICC), underscores the outstanding ICC arrest warrants for 11 other suspects of war crimes, crimes against humanity, and genocide related to situations in the Democratic Republic of Congo (DRC), Uganda, the Sudan, and Libya.

Click HERE to take action!

Joseph Kony, Bosco Ntaganda, President Omar al-Bashir and other fugitives are often shielded by powerful supporters and states. The ongoing lack of justice means that most of these fugitives are free to commit more crimes, placing civilians in affected areas at great risk.

The 11 with outstanding International Criminal Court arrest warrants are:

•  Democratic Republic of Congo: Bosco Ntaganda whom the ICC has charged with enlisting and conscripting children under 15. The Congolese government is shielding him following his integration into the national army.

•  Uganda: Accused Lord’s Resistance Army (LRA) leader Joseph Kony and LRA commanders Vincent Otti (presumed dead), Okot Odhiambo, and Dominic Ongwen continue to evade trial after being charged with crimes against humanity and war crimes. They and the fighters they lead continue to move between the Central African Republic, north-eastern DRC and South Sudan and commit crimes.

•  Sudan: President Omar al-Bashir has been charged with genocide, crimes against humanity and war crimes in the Darfur region. He has yet to be arrested despite regularly conducting state visits abroad. Sudanese officials Ahmad Harun and Abdel Raheem Muhammad Hussein and accused “Janjaweed” leader Ali Kushayb are also at large.

•  Libya: Saif al Islam Gaddafi and Abdullah al-Senussi are charged with crimes against humanity committed during the crackdown on protesters in Libya. Saif al-Islam was captured on 19 November 2011 but has not yet been surrendered to the ICC.

The UN has a critical role to play by providing political, diplomatic, and logistical support for efforts to arrest individuals named in ICC arrest warrants and to protect civilians in countries where the ICC is investigating crimes.

However, if the UN is to play a constructive role in protecting civilians and supporting the arrest of ICC fugitives, while respecting human rights, it must provide adequate resources particularly to the UN’s peacekeeping missions in the DRC, South Sudan, and for its office in the CAR.

Write to UN Secretary-General Ban Ki-Moon telling him that you support Amnesty International’s call for the UN to provide all necessary resources to its peacekeeping missions and other offices in the region to protect civilians and support the arrest and surrender of individuals named in ICC arrest warrants.

*Please note that your first name and country will be shared with the UN Secretary General but not your surname and email address. Please consider this information before taking action.

Reposted from the New York Times Op-Ed pages

Legislators play a dangerous game using the word “genocide.” In trying to appease millions of victims, they needlessly pit nations against one another. They should leave it to others to sift through the evidence and determine what killings occurred when and which ones amount to what crimes. Political judgments distort the search for truth and for justice.

Millions of people live with the memories that their ancestors were slaughtered out of prejudice. They demand that the story of their people’s past be confirmed for posterity and that the perpetrators be condemned. But judging such facts, especially many years, perhaps even centuries, after they occurred, requires the discipline of historians and, if surviving suspects can be prosecuted, of jurists.

Some nations have outlawed Holocaust denial to avoid stoking the violence bred by anti-Semitism. Such intentions may be sound, but too often the results are problematic. Legislators and governments have variously decreed or denied that given mass atrocities were genocides in order to satisfy certain interest groups or national agendas.

France and Turkey are now at loggerheads, for example, over how to characterize the deaths of some 1.5 million Ottoman Armenians nearly a century ago and whether to criminalize any refusal to call those atrocities a genocide. The French Parliament says “genocide” and wants to criminalize its denial; Turkey rejects the term and prosecutes those who use it. The Turkish prime minister has threatened sanctions against France and countered that France committed a genocide of its own in Algeria between 1830 and 1962.

Mass atrocities were indeed committed against the Armenians, but deciding to call them a “genocide” — or refusing to — is a dangerously divisive political game. It heightens tensions between countries and sows confusion about what really happened.

Politicians should use the term “genocide” only when historians and jurists have determined, based on evidence and analysis, that a genocide — a specific crime defined according to narrow factual and legal criteria — has indeed occurred. It is the responsibility of historians to establish the facts of distant events and of jurists to determine whether these were a genocide, crimes against humanity, war crimes, human rights abuses, political repression or other crimes against civil or political rights.

Using the word “genocide” loosely can be tragically ineffective or self-defeating. It can intimidate powerful nations from reacting quickly enough to prevent further atrocities.

The United Nations and key Western governments failed to act in Rwanda and the Balkans in the early 1990s partly because their policy makers were searching for terminological certainty about the nature of the killings. The false notion arose that invoking “genocide” would require immediate military intervention. (The 1948 Genocide Convention does not demand this; the requirement that parties to the treaty “prevent” genocide can take military, political, diplomatic or economic forms.) And while the politicians pondered, thousands of civilians continued to die.

When in 2004 Secretary of State Colin Powell declared the killings in Darfur a genocide, he wasn’t committing to United States to send the 82nd Airborne into western Sudan. He was simply trying to prod the U.S. government to take some action, ideally with others, to stop the atrocities. But others in Washington and several Western capitals froze at the use of the g-word.

Politicians would be better off using the phrase “atrocity crimes” — a term with no pre-existing connotations or legal criteria — to describe any combination of genocide, crimes against humanity or war crimes, leaving it to historians and jurists to determine, free of political influence, which atrocity crimes belong to which category. In the face of ongoing mass killings, this would allow policy makers to concentrate on what needs to be done to end a slaughter rather than debate how to define it. The Obama administration is rightly creating the Atrocities Prevention Board to free up decision-making from any confining lexicon.

France, as well as the United States and Israel — both of which are considering similar genocide legislation — could call what occurred to the Armenian people a century ago atrocity crimes. (Turkey might even tolerate that.) And Turkey could condemn what the Algerians suffered at the hands of the French as atrocity crimes.

If the United States, the European Union and the Arab League declared that the Syrian government was currently committing atrocity crimes against its own people, they would have an easier time getting the U.N. Security Council to refer Syria’s leaders to the International Criminal Court for investigation, leaving it to the prosecutor to determine what crimes to list in an indictment. Rather than veto such a move, Russia and China might abstain from voting on it and give justice a chance.

By forgoing “genocide,” politicians would no doubt disappoint interest groups determined to use the label to describe the suffering inflicted on their ancestors. The Armenians, in particular, would find this compromise hard to accept. But their strongest case rests with the historians and the jurists now — not with the politicians whose loose indictments trigger the very tensions that can ignite prejudice among peoples and nations. Shifting to “atrocity crimes” in government speech, meanwhile, would focus the efforts of officials on getting more unified international responses to ongoing massacres.

——

David Scheffer, the U.S. ambassador at large for war crimes issues from 1997 to 2001, is a law professor at Northwestern University. His new book is “All the Missing Souls: A Personal History of the War Crimes Tribunals.”

This article was originally posted on Jurist.org

On January 26, 2012, Navi Pillay, the UN High Commissioner for Human Rights, made a statement before the UN Security Council on the current human rights situation in Libya. In her statement, she highlighted key issues related to the promotion, protection and enforcement of human rights. Pillay noted that the National Transitional Council (NTC) of Libya has taken some positive measures since coming into power in October 2011. However, she also highlighted that there had been reports of human rights abuses and that over 8,000 supporters loyal to the late leader of Libya, Colonel Muammar Gaddafi, were arbitrarily detained and are being held in appalling conditions.

Pillay’s statement to the Security Council came just weeks before human rights advocacy organization Amnesty International (AI) released a report accusing the NTC of allowing the abuse and torture of supporters of former leader Gaddafi by unofficial militia. The AI report of February 16, 2012 underscores Pillay’s concerns. The report itself is a product of an AI fact-finding mission to Libya in January and February 2012. The mission visited 11 facilities in Tripoli, al-Zawiya, Gharyan, Misrata and Sirte. The facilities are all currently used as detention facilities for suspected Gaddafi loyalists.

AI’s report details systematic human rights abuses by militia of people in custody. People interviewed provided details of different forms of torture and resultant grievous bodily harm. According to the report, the alleged forms of torture used by the militia include, but are not limited to, beatings using various instruments such as sticks, whips and rifle butts. Several of the people interviewed by the AI mission said they suffered other forms of torture, including electric shocks, burns and threats of rape or death. In addition to those allegedly tortured, the mission also found that 12 detainees had died in custody.

Aid agency Medecins San Frontieres (MSF) has supported the findings of this report and Pillay’s statement to the Security Council. According to the MSF, forensic examinations of some of those who died in detention provide evidence that such methods are still being used. Furthermore, MSF reports that some of their staff were asked by the militia in detention in Misrata to patch up prisoners midway through torture sessions so they could be taken back for more abuse. MSF in January said that its doctors had treated 115 people since August 2011 who had torture-related wounds and of those two people had died.

If the reported human rights violations are true and the militia is responsible for them, then the militia has violated the International Covenant on Civil and Political Rights (ICCPR) of 1966 and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, two international agreements to which Libya is a party. The ICCPR provides that everyone has the right to life and further that “No one shall be subjected to arbitrary arrest or detention.” In addition, both the ICCPR and the Torture Convention expressly provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Bearing this in mind, it is clear that the alleged perpetrators should be brought to book for the acts of torture and the reported deaths. The AI report recommends that the NTC abruptly put an end to the unlawful detentions and ensure that any arrests are carried out by lawful police forces, ensure humane treatment of detainees and investigate the reported deaths of prisoners. However, as noted by Pillay, the reason that these crimes have gone largely unpunished is because the NTC seems to lack the requisite systems to oversee activities across the country. Consequently, some regions are not governed by the NTC, but instead by the militia.

In 2011, the NTC vowed to investigate allegations of human rights abuses after AI released their September 2011 report, which alleged that both sides to the Libyan conflict were responsible for human rights violations. The NTC also currently has in detention International Criminal Court (ICC) accused Saif al-Islam and Abdullah al-Senussi, who they intend to prosecute domestically despite criticisms from the ICC and the international community. Indeed, to date, no efforts have been made to freely and fairly prosecute both sides to the conflict. Unfortunately, this state of affairs closely mirrors the lack of commitment to criminal justice on the part of the Gaddafi government throughout his 42-year rule. If the NTC is to establish itself as a legitimate government, it will need to address this fundamental issue as well as ensure that it has authority over areas currently controlled by different militia groups.

—-

Ottilia Maunganidze is a Researcher for the International Crime in Africa Programme at the Institute for Security Studies. Her main focus is on criminal justice mechanisms to deal with international crimes and the promotion and protection of human rights. Previously, she worked as a research intern for the African Security Analysis Programme, as a junior legal advisor at the Rhodes University Legal Aid Clinic, and as a student human rights education coordinator for the Rhodes University chapter of Amnesty International.