IJCentral: International Justice Central

by Mariana Rodriguez Pareja and Salvador Herencia Carrasco*

Between 1960 and 1996, Guatemala was shattered by an internal armed conflict that resulted in the death of 200,000 people and victimizing an entire nation. According to the report by Guatemala’s Truth and Reconciliation Commission (TRC), government forces under the de facto presidency of General Rios Montt were found to have committed more than 600 massacres, homicide, forced disappearances, and other crimes, particularly against rural and indigenous communities.

During all those 36 years of extreme violence, 45000 people were disappeared and 650 massacres took place. Half a million Guatemalans sought shelter in Mexico and one million were internally displaced. These are just some of the numbers of what Guatemala went through in recent history.

According to the report of the TRC, the armed forces were responsible for 93 percent of these crimes. At all lights, there was a generalized and systematic plan led by senior Government Officials to perpetrate attacks against civilian population, under the excuse to pacify the country and free it from guerrilla groups. In the case of Rios Montt, who ran the country for 17 months in 1982/3 and after exhaustive investigations in Guatemala and in Spain, there were reasonable grounds to prosecute him for acts of genocide and crimes against humanity against local indigenous groups.

After years of judicial battles, the Interamerican Court of Human Rights (IACHR) ruling on the Dos Erres Massacre Case triggered a number of local proceedings. Earlier in 2012, a local tribunal sentenced former elite soldiers “kaibiles” to serve for 6060 years for the Dos Erres Case, which took place in 1982. This sentence at the local level was promising: local tribunals finally did was they were meant to be and asked to do by the Interamerican system and was seen as a first step to address impunity in the country. In this context, former head of State Rios Montt appeared for the first time in court to respond for genocide and crimes against humanity. Among the charges, he was accused of the killing of 1700 people who belonged o the indigenous communities. It was for the first time in history that a former president would respond before the local justice for these types of crimes.

Nevertheless, and leaving aside all the hopes of the victims, their families and the human rights movement in Guatemala and in the world, his lawyers and supporters were very active in seeking for ways out of this situation. The latest move was to seek for an amnesty, which as already rejected last October, but now tried again before the total rejection from the human rights community. This time the Constitutional Court of Guatemala has the final word on this claim.

Voices from human right organizations were loud on this regard and submitted an “amicus curiae” to the superior tribunal and, at a local level, organizations and activists have been vocal on how this possibility of granting an amnesty to Rios Montt would impact seriously on the Rule of Law.

Granting this amnesty will respond only to political factors, because legally speaking, Guatemala has international obligations that should comply at an international level. For instance, the American Convention on Human Rights foresees that States should investigate and prosecute all the violations to the letter of this treaty. Likewise, the IACHR precedents also include the content and the limit of the amnesty laws for States Parties.

Some might argue that Argentina, Brazil, and El Salvador—just to name few—also granted amnesties in the context of the democratic transition in order to avoid investigation of international crimes. But, as a result, this has caused more impunity and more social division. Proof is that today, in most of these countries, these laws have been struck down and local judicial proceedings have taken place.

Since the Barrios Altos Case, the IACH has determined that amnesty laws are against the American Convention and that cannot serve as an obstacle for the investigation and prosecution of those responsible for the perpetration of grave human rights violations. This rule has been vital for the revocation of the amnesty laws in many Latin-American countries to begin procedures for international crimes, especially torture and enforced disappearances. Even a few weeks before the end of 2012, the IACH determined that the Amnesty Law in El Salvador was contrary to the Convention, opening the door for future investigations at a local level for the El Mozote Massacre in 1981.

These human rights violations must be addressed by the Guatemalan tribunals. At this state, measures should be taken in order to strengthening its judicial system and rule of law throughout the country. Therefore, granting amnesty to Rios Montt will be a step back in the pursuit of justice and reconciliation. It will also be against all the international obligations and mostly, and offense to the victims and their relatives, who seem to be invisible before the Guatemalan State for the past—at least—36 years.

Source: The Huffington Post

* Mariana Rodriguez Pareja holds a JD and runs the Human Rights Program at Asuntos del Sur (ADS), among other projects. Salvador Herencia (LL.M.) is Member of the Latin-American Study Group on International Criminal Law.

By Reed Brody, Special to CNN*

Editor’s note: Reed Brody, Counsel with Human Rights Watch, has worked with Habré’s victims for 14 years. The views expressed are the writer’s own.

The most brutal U.S.-backed dictator you’ve never heard of – Hissène Habré of Chad – is facing a trial before a unique court set up in his Senegalese exile.  The court’s creation last week in Dakar, Senegal is a decisive breakthrough in a 22-year chess game pitting Habré against a group of prison survivors who never give up, as well as a hopeful sign that African courts can deliver justice for crimes committed in Africa.
Souleymane Guengueng, a modest civil servant, watched dozens of fellow cellmates die from torture and disease during three years in Habré’s prisons in the 1980s. Guengueng took an oath that if he ever got out of jail alive, he would bring his tormentors to justice. When Habré fell in 1990 and fled Chad for Senegal after emptying out his country’s treasury, Guengueng rallied wary survivors and widows to seek redress. In 2000, inspired by the London arrest of the former Chilean dictator Augusto Pinochet, they went to Senegal to press charges.

A Senegalese judge indicted Habré for political killings and torture. But the former Senegalese president, Abdoulaye Wade, found one pretext after another to delay Habré‘s reckoning. His tactics turned the victims’ saga into what Desmond Tutu, the Nobel Peace Prize winner, described as an “interminable political and legal soap opera.”

In 2001, on one of my trips to Chad, I stumbled upon the abandoned archives of Habré’s political police, the feared “DDS.” Tens of thousands of documents detailed how Habré conducted the repression of political opponents. A team of victims sorted the documents for entry into a database. The list was long – 1,208 dead prisoners and 12,321 victims of torture and other abuses.

The documents also described American training programs for DDS agents, including a course in the United States that some of the DDS’ most feared torturers attended. Under President Ronald Reagan, the United States saw Habré as a bulwark against Libya’s Moammar Gadhafi, Chad’s expansionist northern neighbor, and human rights did not figure into the equation.

When threats from Habré‘s henchmen back in Chad forced Guengueng into exile in 2005, he was replaced by Clement Abaifouta – the “gravedigger” – whose prison job had been to bury the bodies of deceased detainees in mass graves. Their lawyer, Jacqueline Moudeina, still has shrapnel in her leg from 2001, when one of Habré‘s security chiefs, who had returned as police chief of Chad’s capital, ordered an attack on her with a grenade.

But the victims persisted, filing charges against Habré in Belgium, whose anti-atrocity law allowed its courts to hear cases from all over the world. A Belgian judge took up the case and carried out a landmark mission to Chad. In 2005, after a four-year investigation, he sought Habré’s extradition.  When Senegal refused to send Habré to Belgium, and spent the next three years stalling on a request from the regional body, the African Union (AU), to put him on trial in Dakar, Belgium took the case to the International Court of Justice (ICJ), the world court in The Hague. The Obama administration also threw its weight behind a trial.

This year, the victims’ perseverance and tenacity was finally rewarded. In April, Senegal elected a new president, Macky Sall, who immediately announced that he would change course. When the ICJ ruled in July that Senegal had to prosecute Habré “without further delay” if it did not extradite him, Sall’s government and the AU reached a landmark agreement to create “Extraordinary African Chambers” within the Senegalese courts. The presidents of the trial and appeals courts are to be appointed by the AU from other African countries. Habré’s victims will participate as civil parties, presenting witnesses and evidence, with the right to seek compensation. The court’s funders, including the United States the AU, the European Union and the Netherlands, approved a robust outreach and communications plan so that the trial can be broadcast in Chad.

Le Monde has called the Habré case “a turning point for justice in Africa.” Indeed, while some African leaders have claimed that Africa is unfairly targeted by international courts, the challenge has been to put teeth into African justice.  A fair trial for Hissène Habré would be a tremendous step forward. It would also allow Souleymane Guengueng to fulfill the oath for justice he took more than two decades ago.

Source: CNN World

by Mark Kersten*

Libya has made yet another significant and controversial decision as it continues down the bumpy path of its post-conflict and post-Gaddafi transition. According to the Libya Herald, the country’s General National Congress (GNC) is preparing to institute a “Political Isolation Law” which will prohibit politicians who were close to the Gaddafi regime from taking political office. The wisdom of such a policy is surely to be hotly contested.

Just days before the new law was announced, a group of GNC members issued a statement declaring that they would “work through the GNC to speed up the passing of a law to block the way for any leftovers from the former regime to infiltrate the organs of the state and its institutions.” They added that “anyone who participated in the destruction can not in any way be a tool for rebuild the state, and it is unimaginable that anyone who took part in the corruption of the social, political and economic life of Libya could ever be a cause for reform.”

The decision by the GNC to introduce the law appears to have come in response to widespread frustration amongst Libyans at the possibility of former Gaddafi officials re-branding themselves to remain in power.

At first glance, this demand would appear unproblematic. Proponents of lustration argue that it is a necessary measure for consolidating the trust of citizens in democratic reforms and institutions. Moreover, there is precedence for such a law. Similar legislation (with the same name) was passed in Egypt. In Iraq, former members of Sadaam Hussein’s Ba’ath Party were barred from office, albeit with disastrous consequences. The official practice of lustration, as a transitional justice mechanism, dates back to the experience of post-communist states in Eastern Europe. After finally escaping from the clutches of communist rule, states such as Poland and Czechoslovakia instituted lustration policies to exclude former communists from political office.

Still, lustration is inevitably a controversial mechanism for achieving post-conflict justice. It typically relies on the release of secret state documents which often cannot have their accuracy verified. It can ensnare innocent government officials who played minimal and often technocratic roles in a process that resembles more of a witch hunt than political vetting. Lustration can also inspire political backlashes as excluded officials with significant material and political resources reorganize to challenge or undermine their country’s political transition. Of course, such policies are also inevitably an action taken by ‘victors’ against their former ‘oppressors’ and can thus entrench social and political divisions and make reconciliation more difficult to achieve. In this context, some political figures may attempt to use lustration not as a means to achieve justice but to exclude competitors from favourable positions. Moreover, in states where virtually the entire political class was associated with a past regime, lustration may disqualify or irrevocably taint political actors whose skills could positively contribute to the country’s transition.

Given the above, it will be critically important that Libya – like any other state considering the use of lustration policies – be very careful in deciding precisely who is to be excluded and on what grounds. Many of the failures of past lustration policies have been the direct result of poor planning and confused policies.

It is thus troubling that very little about the new Political Isolation Law (a terribly aggressive name for a lustration policy) is currently known. As Tom Little notes,

[T]he exact details of the law are still unclear, and it has yet to be decided what criteria members of the government and the GNC would have to meet to be isolated. It is also far from clear how many government and GNC officials might be affected by the law.

Importantly, the GNC’s law will likely be focused on senior officials and not target minor members of Gaddafi’s government. As one GNC member stated,

“[w]e are asking that those who have been involved in the bloodshed in Libya, with the corruption, not be allowed to be represented in the government, and we want to include this in our future constitution or by laws.”

Still, precisely what this means remains unclear. Given the country’s recent history, this is problematic. Libya’s revolution was fuelled by and on many levels led by the defection of Gaddafi’s inner circle to the rebels and their political wing, the National Transitional Council. Amongst others, Mustafa Abdul Jalil (a former Minister of Justice under Gaddafi), Mahmoud Jibril (former head of the National Planning Council of Libya and of the National Economic Development Board of Libya) and Shukri Ghanem (former Prime Minister), all defected from the Gaddafi regime, immediately boosting the revolutions’ and the rebels’ legitimacy. It remains unclear if any of these figures – so critical to the revolutions’ success – would be able to hold political office.

At the same time, the Political Isolation Law will not only cover politicians but also members of Libya’s judiciary. This might be seen as an irresistible opportunity to rid Libya of its cohort of pro-Gaddafi judges and lawyers, many of whom clearly had little respect for the fundamental human rights of Libya’s citizens. However, including the judiciary is likely to have significant implications on the country’s capacity to effectively prosecute individuals allegedly responsible for serious crimes during and prior to the Revolution. As early as November 2011 International Legal Assistance Consortium foreshadowed this dilemma:

Given the history of the Libyan judiciary’s subservience to the regime, it is difficult to imagine that many existing judges, particularly senior judges, could legitimately serve in a democratic Libya. On the other hand, some thoughtful Libyan expressed concern that total lustration, similar to the de-Baathi$cation steps taken in Iraq, could leave the judicial system with no experienced judges and prosecutors, while creating a cadre of former regime loyalists embittered by their loss of professional standing and income.

Dealing with the past is never an easy task for states emerging from a period of atrocity and autocracy. States have to deal with the need to move forward as well as the expectations of citizens that justice be served. But justice means a lot of different things to people. For many Libyans, part of what justice means is that those officials who were associated with – and perhaps partially responsible for – forty years of Gaddafi rule are never again allowed to assume positions of political influence. The wisdom of such a policy remains murky at best. But if Libya is to go through with its Political Isolation Law, it would be wise to do so carefully and communicate this new law clearly. If it chooses not to, the government risks taking a significant step back in its transition, one that will be very difficult to reverse.

By Jens David Ohlin*

The ICC acquitted Mathieu Ngudjolo Chui today—only the second case at the permanent court to go to a verdict.  For the Office of the Prosecutor, this gives them a 1-1 record (after the Lubanga guilty verdict).

Ngudjolo Chui was originally prosecuted with Katanga, but in a controversial decision last month, the ICC Trial Chamber decided to sever the two cases, announcing that a judgment in the matter of Ngudjolo Chui was forthcoming, while legal proceedings against Katanga would proceed.  Many observers speculated that this meant that the Trial Chamber was preparing to deliver an acquittal for Ngudjolo Chui, and this turned out to be exactly correct.

In today’s decision announcing the acquittal, the Trial Chamber was confronted with several important legal issues, though the combined opinion mostly concentrates on the Office of the Prosecutor’s inability to demonstrate beyond a reasonable doubt that Ngudjolo Chui was guilty of perpetrating international crimes.

The real action, however, was in a concurring opinion filed by Judge Christine Van den Wyngaert.  In her 34-page separate opinion, she tackled all of the crucial issues raised by the case, many of which were sidestepped by the full Trial Chamber’s decision.

First, Van den Wyngaert argued that Article 25(3)(a) of the Rome Statute, which deals with perpetration “through another person,” does not directly include Claus Roxin’s famous theory of perpetration-through-an-organization, also known as Organisationsherrschaft.  Although Van den Wyngaert conceded that many cases described under this doctrine inevitably include perpetration through another person (since organizations are made up of individuals after all), she insisted that this was a factual element of the analysis, not a legal element of the doctrine.  In other words, Roxin’s theory does not belong in Article 25(3)(a) of the Statute, and the correct legal standard is whether the defendant perpetrated the crime through another individual (or individuals), not whether the defendant perpetrated the crime through an organization.

Second, Van den Wyngaert also flat out rejected the new doctrine of indirect co-perpetration, which she described as a “radical expansion” of Article 25(3)(a).  The doctrine was created in previous decisions of the ICC by combining the pre-existing notions of indirect perpetration with co-perpetration, yielding a new hybrid notion of indirect co-perpetration, where multiple individuals cooperate together to direct a horizontal organization that carries out the crime.  There is nothing in the Rome Statute that mentions this doctrine.  I raised many skeptical questions about this new doctrine in my recent essay called “Second-Order Linking Principles”, and I suggested that the new doctrine required far more doctrinal and theoretical justification than had previously been offered by either scholars or courts.  Van den Wyngaert has now concluded that such a justification, consistent with the text of the Rome Statute, is not possible.

Third, Van den Wyngaert offered a sophisticated analysis of the minimum standards for mens rea under the Rome Statute, and specifically rejected the application of dolus eventualis—a civil law doctrine that closely resembles common-law recklessness (but may not be identical).  Indeed, she specifically picked up on the fact that the Lubanga Trial Judgment pretended to reject dolus eventualis but then offered a definition of the phrase “knowledge” that was so expansive (including the risk of future events) that it effectively smuggles in dolus eventualis through the back door.  Not many people have noticed this conceptual error in the Lubanga Trial Judgment, but Van den Wyngaert not only noticed the problem but hit the nail on the head.

At some point, the ICC Appeals Chamber will need to confront not just the fate of indirect co-perpetration, but also the fundamental question of the mens reas standards under the Rome Statute, and whether dolus eventualis qualifies.  When it does, hopefully the Appeals Chamber takes a close look at Van den Wyngaert’s concurring opinion.

As for Ngudjolo Chui, the Trial Chamber ordered him released pending the prosecutor’s appeal, although the release order (as well as the underlying acquittal) will be appealed to the Appeals Chamber.

Source: LieberCode

By Mark Kersten*

For many at the International Criminal Court, it was a rough day at the office. For many in the DRC, it was bewildering and upsetting. On 18 December, ICC judges acquitted Mathieu Ngudjolo, the former Congolese rebel leader who had been on trial for his alleged role in orchestrating the 2003 Bogoro Massacre in which at least 200 civilians were killed. The bombshell acquittal is likely to have significant implications not only on the development of international criminal law but also on the capacity of the ICC to achieve and serve justice.

Many insightful observers have already weighed in on the Ngudjolo acquittal. William Schabas and Jens David Ohlin have assessed its implications on international criminal law. David Bosco weighed in on the shortcomings of the ICC Prosecutor’s strategy of targeting the leadership of governments and rebel groups. Numerous commentators have also argued that the acquittal actually indicated that international criminal law was working – and working well. Over at Wronging Rights, Kate Cronin-Furman, for example, argued that the Ngudjolo there was a silver lining to the verdict: the “acquittal shows that, although the ICC faces tremendous pressure to deliver convictions, it will not operate merely as a stamp on public consensus about a defendant’s guilt.” In a similar vein, Joshua Keating discussed the appropriateness of expecting that everyone who faces justice at the ICC should be convicted:

I understand the frustration here, but I do think there’s a danger in human rights groups decrying trial as a failure because a suspect was not convicted…In any fair court, defendants — includings ones who are almost certainly guilty — are going to sometimes be acquitted for reasons ranging from lack of evidence to prosecutorial incompetence…[W]e’re going to have to accept that sometimes the bad guys will get away with it.

here is a lot of merit in these comments. It seems clear that the Ngudjolo verdict is a demonstration that international criminal law and fair trial standards at the ICC are functioning properly. However, the fact that the ICC’s trial standards were met should not be conflated with a belief that ‘justice’ was served. Rather, the Ngudjolo acquittal sits awkwardly amongst competing conceptions of justice. More specifically, the acquittal exposes the tension between international criminal justice as achieved through tribunals like the ICC and broader expectations that perpetrators are brought to account. This tension has, of course, always been somewhat problematic because it treats ICC justice as superior and sophisticated and local expectations as simplistic and emotional.

Interestingly, the ruling judges themselves grappled with the reality that their verdict sat uncomfortably amidst the expectations of a guilty verdict. They emphasized that their verdict did not mean that Ngudjolo was innocent:

The Chamber emphasised, however, that the approach it adopted does not mean that, in its opinion, no crimes were committed in Bogoro on 24 February 2003, nor does it question what the people of this community have suffered on that day. The Chamber also emphasised that the fact of deciding that an accused is not guilty does not necessarily mean that the Chamber finds him innocent. Such a decision simply demonstrates that, given the standard of proof, the evidence presented to support his guilt has not allowed the Chamber to form a conviction “beyond reasonable doubt”.

till, the ruling could have wide-ranging implications for the ICC’s ability to gain support and cooperation for future cases. There is an ever-present possibility that victims and survivors of atrocity crimes will think twice before seeking and supporting the ICC as a means to achieve accountability and justice. In the wake of the Ngudjolo verdict, many are likely to fear that perpetrators sent to face trial at the ICC would simply spend a few years in relative comfort at ‘The Hague Hilton’ and then be set free. It would not come as a surprise, for example, if Libyans are only more convinced that Saif al-Islam Gaddafi and Abdullah al-Senussi should never be sent to The Hague.

So what is the ICC to do?

As stated above, the acquittal shows that the Court’s legal standards are fair and functioning as they should. It thus follows that they don’t need tinkering. Within the Office of the Prosecutor, the Court’s new chief Prosecutor Fatou Bensouda will surely decide to amend its strategies in order to avoid similar embarrassments in the future. After all, hitting ’50/50′ isn’t a particularly good batting average. However, such changes will be made internally and will probably only yield results years down the road.

However, one thing the Court can do – and should do – immediately is to dramatically increase its outreach capabilities. While it clearly has improved over the years, the ICC hasn’t always done a good job communicating its work and making it accessible to the citizens of the eastern DRC. For example, when the verdict of Thomas Dyilo Lubanga was issued earlier this year, the local ICC communications team in the Ituri region claimed it was not provided with sufficient funds to broadcast the ruling.

The first place the ICC could demonstrate a re-invigorated dedication to outreach is in the Ituri region of the DRC, where it should seek to explain exactly what happened during the trial, explain the verdict and communicate what can and will be done in the future to avoid similar acquittals. To be clear, this isn’t likely to satisfy the people of the eastern DRC. However, it could be the difference between victims and survivors in the DRC demanding improved prosecutorial strategies and demanding that the ICC never get involved at all.

Source: Justice in Conflict

By William Schabas*

In the second prosecution to reach the judgment stage, a three-judge Trial Chamber of the International Criminal Court has just acquitted Mathieu Ngudjolo of war crimes and crimes against humanity.
The judgment is straightforward and entirely accessible to those without legal training: the three judges didn’t believe many of the key witnesses called by the prosecution.
Most experienced lawyers will acknowledge that a unanimous acquittal rooted in the lack of credibility of the prosecution witnesses is relatively impervious to appeal. Although appeals are more or less de rigueur at the international criminal tribunals, the Prosecutor might be wise to decide to devote her precious resources to other pressing priorities rather than try to contest today’s findings by the Trial Chamber. She might decide quickly, and give Ngudjolo enough time to go home for Christmas.

Those who cherish justice should always welcome an acquittal, in the sense that it demonstrates a functional system where the presumption of innocence is applied genuinely. It hardly needs to be said that an acquittal in no way indicates that the crime was not committed, merely that the Prosecutor went after the wrong man.

But as for the health of the institution, there is something troublesome about an Office of the Prosecutor with a batting average at trial of only 50%. To an extent, this might be written off as bad luck, were it not for its other failed efforts. The Ngudjolo case had passed the confirmation hearing stage, which is a preliminary type of hearing designed to eliminate cases where even substantial grounds for a conviction cannot be determined. But the Prosecutor has also stumbled in 4 of the 14 cases to get to the confirmation hearing stage. So the batting average could also be taken as 5 out of 14, which is not impressive, and which fails to take into account the fact that several of the 10 where ‘substantial grounds’ were determined have not yet reached the trial stage.

The Ngudjolo prosecution failed the ‘reasonable doubt’ test, but in a rather dramatic way, with the dismissal of the credibility of the testimony of several key prosecution witnesses rather than, as is the situation in where there is a close call, of a difficulty or ambiguity in the interpretation of testimony where the evidence is otherwise credible. It is the difference between saying ‘It was dark, and we are not convinced that the witness was able to identify clearly the defendant’ and ‘We think the defendant is not believable’. The Prosecutor’s witnesses are in the second category, according to the Trial Chamber.

In the ‘summary’ that was read out in Court today, the president judge, Bruno Cotte, made the point that the judgment means that ‘to declare that an accused is not guilty does not necessarily mean that the Chamber concludes he is innocent’. This seems a bit of a gratuitous statement, especially in light of the fact that its verdict is founded on the lack of credibility of the witnesses.

The judgment rests on an assessment of the facts, and while this is not meant to be a criticism of it at all, there is little of substantial legal interest in the findings of the Trial Chamber. It is more like the verdict of a jury, albeit a reasoned one, than an assessment that rests upon a controversial assessment of legal issues.

Where we get the law is in Judge Van den Wyngaert’s fascinating separate opinion. She uses the occasion to express her views upon the modes of participation in the Rome Statute. Her decision largely endorses the views expressed by Judge Fulford in his separate opinion in the Lubanga case earlier this year. Judge Van den Wyngaert rejects the importation of what is known as the theory of indirect co-perpetration. She insists that the Rome Statute contains a codification of the forms of participation and that it is simply not appropriate to enlarge or modify this as if the text itself did not really exist.

Some observers were perhaps tempted to dismiss Judge Fulford’s separate opinion as a rear-guard attempt of a common-law trained jurist. No longer. With the addition of Judge Van den Wyngaert’s eloquent voice, this becomes a harder contention. She is Belgian, and was trained in a system based upon continental theories of participation. Moreover, she comes with the immense credibility of an academic who has been specialised in international criminal law throughout her long and distinguished career.

Source: PhD Studies in Human Rights

* William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy.

By Mark Kersten*

If the International Criminal Court (ICC) ever opens an investigation into Syria, it will almost assuredly become an irresistible trope to claim that the Court’s involvement caused President Bashar al-Assad to “dig his heals in” and “fight to the death”. It is an intuitive and persuasive claim to make. But there seems to be little support it.

It has long been argued, in the so-called “peace versus justice” debate that ICC investigations and prosecutions, when targeted against government or rebel leaders, remove the incentive of such leaders to negotiate a peaceful settlement and complicate their plans to go into exile or seek asylum. We witnessed this line of reasoning, most recently, in the case of Libya. Muammar Gaddafi was given numerous offers of exile as an incentive to end the conflict through a political, rather than military, solution. Initially, some offers were from ICC states parties, such as Uganda. As the conflict progressed, however, the intervening states exploring exile for Gaddafi made it clear they were looking for non-ICC member states could accept him. Of course, such offers ignored a rather simple but critical fact: Gaddafi had no intention to leave Libya. He said he would stay and fight until his death and he held his word. Little to no evidence suggests that he intended to do otherwise.

More broadly, there is little reason to believe that a leader like Gaddafi or Assad could trust an offer of exile. Offers of asylum or exile for leaders with blood on their hands are increasingly temporary gestures. For proof, look no farther than the case of Charles Taylor as evidence of this fact.

As many readers will already know, Taylor, a Liberian, was a key perpetrator in the notoriously brutal conflict in Sierra Leone. Taylor, however, was also the President of Liberia. During peace negotiations in Ghana to end the civil war in Liberia, the Special Court for Sierra Leone (SCSL) issued an indictment for Taylor. He immediately returned to Liberia, agreed to resign his presidency and fled to Nigeria, which granted him asylum and immunity from prosecution and extradition. After about two years, following requests by the new President of Liberia, Ellen Johnson Sirleaf, and under pressure from the United States and others, Nigeria finally agreed to send Taylor back to Liberia. In response, Taylor tried to flee to Cameroon but was arrested at the border, sent to Liberia and was eventually flown to The Hague to be tried and convicted by the SCSL. Gaddafi, as an important supporter of Taylor, knew this story well.

So what will happen to Assad if the ICC intervenes?

Here’s a snippet from a recent and insightful piece on the subject by Carol Williams and her interview with Andrew Tabler and his take on whether Assad could seek exile:

Tabler, [a] Syria expert at the Washington Institute for Near East Policy, dismisses the notion that Assad would be safe in foreign exile from assassination by angry countrymen, with the possible exception of Iran. He holds out the prospect that Assad could live up to his promise never to abandon his Syrian homeland, especially if the civil war is ended by breaking the country into sectarian components. Assad is of the minority Alawite population, a Shiite Muslim-aligned sect concentrated in the mountainous coastal region of Latakia.

Moscow wants to avoid becoming the object of bitter resentment, Tabler said, as the United States did by sheltering the shah of Iran after the Islamic Revolution, setting in motion an adversarial relationship that persists more than three decades later.

It seems clear that Assad’s fate will be determined in Syria. He is unlikely to give up, even if it does appear that he is losing ground to Syrian rebels. It also seems unlikely he would go into exile. He wouldn’t be safe from groups seeking revenge and he would find it difficult to trust exile as anything more than a temporary gesture.

Other than Russia, some states might consider giving Assad refuge and protection from vengeance or prosecution. There are enough governments that view sticking a finger in the eye of the ‘West’ as a matter of good policy. But how long would that last – until the next government sees protecting Assad as too costly or until a shifting of international allegiances?

Importantly, offers of exile and asylum remain legally feasible. As much as human rights groups might wish it otherwise, there is no international law that prohibits ICC indictees from going into exile or non-member states from accepting indicted individuals. Nevertheless, the nature of international politics has changed dramatically since the days when the likes of Uganda’s Idi Amin could live out the rest of their days in relative peace in exile. Brutal leaders seem more likely today to stick it out to the end than they did just a few short decades ago.

Offers of exile, asylum and immunity continue to be granted to vicious dictators and despots. But they just don’t seem interested in accepting them. Critically, however, it isn’t clear that this is the case because of the existence of the ICC or any changes in the international community’s respect for international justice. So if and when the ICC comes knocking on Damascus, Assad will almost surely remain in Syria. Despite what observers might say, however, it won’t be because of the Court.

Source: Justice in Conflict.

By Lydia Vicente Márquez and Mercedes Melón*

When you mention enforced disappearances it is likely that Argentina, Chile or Chechnya -just to mention a few- come to mind. However, in the heart of Europe, thousands of Spanish families are still digging up side roads and fields seeking their missing relatives in mass graves spread all over the country. With at least 114.266 identified missing persons disappeared during the Spanish Civil War and subsequent Franco regime, Spain is probably the country with the highest number of enforced disappearances in the world. Yet, the only trial held in Spain regarding the crimes committed during the Civil War and Franco’s dictatorship was that of malfeasance (prevaricación) against judge Garzón precisely because he tried to challenge the lack of accountability for such crimes.

Twelve cases concerning crimes committed during the Civil War and Franco regime have been brought before the European Court of Human Rights (ECtHR) against Spain. Victims have sought, amongst other claims, Spain’s international responsibility arising from the continuing violation of its obligation to carry out an effective investigation into the circumstances surrounding their relatives’ disappearances and extrajudicial executions as well as the failure to provide an effective remedy.  So far, the ECtHR has declared inadmissible all cases concerning the Civil War and Franco regime but two, whose admissibility decisions are still pending. It all might be that, as a matter of fact, most of the cases have been “examined” by the same judge (Sicilianos).

Rights International Spain (RIS) submitted the latest of these cases, on 9 October 2012, on behalf of Fausto Canales Bermejo concerning the enforced disappearance of his father, Valerico Canales, on 20 August 1936. The complaint, supported by expert reports, explained the specific circumstances of the individual case as well as of the Spanish socio-political context arising from the Civil War and subsequent dictatorship. These circumstances are crucial to understand the constraints suffered by Fausto Canales to publicly or privately claim his status as a victim, let alone to exercise his rights before a court of justice. His is a case in point of the plight suffered by thousands of Spanish victims of the Civil War and Franco regime, forced to live in silence and fear during decades. Now, they witness how their last resort, the ECtHR, leaves them without answer to their claims of justice.

Approximately a month after submitting the complaint - an unusually short period for a truly serious and in-depth examination of the application and annexes, including the expert opinions-, the ECtHR has concluded that

“In the light of all the elements in its possession and insofar as it has the authority to decide on the complaints formulated, the Court has considered that your application does not comply with the requirements of admissibility established in articles 34 and 25 of the Convention (see mutatis mutandis Gutiérrez Dorado and Dorado Gutiérrez v Spain). This decision is definitive and cannot be appealed before the court, the Grand Chamber or any other body”.

It is worth recalling that Article 45 of the European Convention on Human Rights establishes that “Reasons shall be given for judgments as well as for decisions declaring applications admissible or inadmissible.” Yet, the ECtHR has not provided any legal reasoning or explanation whatsoever for dismissal. Hence, paraphrasing the UK’s Supreme Court President, Lord Neuberger, because decisions without reasons are certainly not justice, the Court’s resolution is scarcely a decision at all. Indeed, it is a regrettable response coming from a human rights court.

The ECtHR has used an almost identical standard formula to reject, on admissibility grounds, most of the cases submitted in relation to the Franco regime crimes. The mutatis mutandis reference, without any other indication, contained in the Canales Bermejo resolution to the Gutierrez Dorado and Dorado Gutierrez v. Spain case hardly amounts to legal reasoning.

The ECtHR declared the Gutierrez Dorado complaint inadmissible, among other reasons, because it considered that the applicants did not display “due diligence” in bringing their case before the Court “without undue delay” and therefore the complaint was “out of time”. Let us assume that this is the argument that the Court has used to dismiss the Canales Bermejo case. However, the latter differs from previous complaints presented by other Spanish victims before the Court. In consequence, the ECtHR has not taken into consideration the specific context and circumstances of the individual case.

One of the most relevant differences between both cases is that Canales Bermejo was the first complaint submitted to the ECtHR after, and as a result of, the Spanish Supreme Court decision issued on 27 February 2012. This decision acquitted Judge Garzón of malfeasance in the so-called “Historic Memory” trial. Furthermore, although it was not the matter of adjudication, the Supreme Court judgment definitively closed any possibility of carrying out judicial investigations into the gross human rights violations committed during the Civil War and Franco regime; thereby denying the victims any effective remedies. This denial constitutes a clear violation of Spain’s obligations under the Convention. Yet, instead of approaching the case from the perspective of the State’s duty to investigate and remove all obstacles that hinder the victims access to justice, the ECtHR places exclusively on the victim the burden to act “without delay” and “with due diligence”.

Fausto Canales Bermejo has struggled for many years trying to find out the truth about what happened to his father, disappeared when he was only two years old. His unrelenting activity, bringing all kinds of actions and resorting to all available procedures and mechanisms, contrasts with the Spanish State’s inactivity with regards to its obligation to investigate the enforced disappearance of Fausto’s father. Furthermore, a number of renowned experts (anthropologists, psychologists and jurists) justified, in the reports submitted to the ECtHR in support of Fausto Canales’ application, the “delay” of the Spanish victims to bring “timely” claims to the Court. In a nutshell, victims claim when they can and not when they want to. Accordingly, victims should not be required to act in a context of institutional crisis or widespread fear or where the legal conditions cannot ensure a minimum degree of success of their complaints. The action or inaction of the victim has to be considered within the larger socio-political context as well as within the context of the action or inaction of the State and the international community at large.

Given that the ECtHR’s decision in Canales Bermejo does not provide any reasoning, it is not only an unjust decision for the victim but is also a decision devoid of justice. It places the victim in a situation of inequality of arms vis-á-vis the State. While dismissing the efforts of the victim, the Court does not demand from the State even a minimum degree of due diligence in terms of compliance with its obligations. The inflexibility on the part of a human rights court with regard to the victims while sheltering the State’s flouting attitudes is difficult to understand.

Enforced disappearances amount to a continuing violation of several fundamental rights that lasts until such a time as the victim’s fate or whereabouts are established. To date, that is the case in Canales Bermejo and thousands of missing persons buried in mass graves all over Spain. The existing systematic impunity, which is tolerated and promoted by the Spanish State, contributes to prolonging the suffering of the victims’ families. Regrettably, the ECtHR has condoned impunity with procedural arguments in a decision devoid of justice.

*Lydia Vicente Márquez, human rights lawyer and Executive Director of Rights International Spain. Mercedes Melón, human rights lawyer, Legal Advisor of Rights International Spain

By Rully Sandra*

The year 2012 is an auspicious time indeed. No, we are not talking about the prophetic end of the world according to the Mayans, but the many important landmarks in human rights and international relations that have taken place this year.

We witnessed recently how Palestine obtained its observer state status from the United Nations and ASEAN finally adopted its ASEAN Human Rights Declaration, albeit to widespread criticism. We also marked the 10th anniversary of international justice this year.

Given the calamities in human history, including World War II, the Balkan conflict and atrocities in Africa, the notion of international justice calls for humanity to take action to address the most serious crimes of common concern, i.e. genocide, crimes against humanity, war crimes and crimes of aggression. It demands that people say no to impunity and ensure justice is delivered to victims.

The International Criminal Court (ICC) was established in 1998 with this vision in mind.

In fact, the commemoration of the 10th anniversary of international justice is based on the entering into force of the Rome Statute of the ICC in 2002.

To date, 121 countries in the world have ratified the statute, including three countries from Southeast Asia, namely Cambodia, the Philippines and Timor Leste. Sadly, Indonesia remains in the group that is not a party to this statute.

Indonesia was involved in the adoption stage of the Rome Statute, where Indonesia’s delegation was led by the then law and human rights minister Muladi.

At that time, Indonesia supported the establishment of the ICC and stated that its participation was to fulfill its constitutional obligation to contribute to the establishment of a world order based on freedom, genuine peace and social justice.

The plan to accede to the Rome Statute has been included twice in the National Action Plan on Human Rights (Ranham), first in 2004 and second in 2011.

Last month in the Assembly of States Parties to the ICC, the office of the ICC presidency informed us that President Susilo Bambang Yudhoyono had sent a letter in April 2012 stating that Indonesia was still committed to its pledge, although this has yet to be proven.

Indonesia’s hesitation is mostly based upon an unfounded fear of prosecution for past crimes, despite the fact that the Rome Statute clearly states that its applicability is non-retroactive.

On the other hand, the court is about to begin trial proceedings on a case concerning the killing of African Union peacekeepers in Sudan.

This signifies the importance of the court in protecting those assigned to help civilians in times of conflict and post conflict.

We should reflect on the fact that Indonesia has been actively participating in UN peacekeeping missions since 1957 and thousands of Indonesian military and police personnel are now deployed in a number of locations. Indonesia has even established a new state-of-the-art Peace and Security Training Center as part of its preparations to become one of the top-10 troop-contributing countries.

Thus, the lacunae of legal protection for our peacekeepers should at least be considered by our policymakers to accelerate the accession process.

Another reason is that Indonesia has always claimed to be a strong supporter of Palestine. One possibility that has now opened for Palestine after the gaining of its observer status at the UN is to accept the jurisdiction of the ICC and to continue its efforts to pursue war crimes charges in the court.

How can Indonesia support this if it can only applaud from outside the fence?

The UN General Assembly has just adopted a Declaration of the High-Level Meeting of the General Assembly on the rule of law at the national and international levels.

One of the paragraphs recognizes the role of the ICC and emphasizes the importance of cooperating with the court.

As a country that endeavors to uphold the rule of law as stated in the Constitution and legislation, the national long-term and medium-term development plans as well as the national access to justice strategy, Indonesia should also look at its participation in fighting impunity at the international level as a manifestation of its own vision.

Last but not least, by acceding to the statute, Indonesia will have an opportunity to shape the development of international criminal law and, further, international justice that will be advantageous to advance legal discourses in
the country.

Have we even wondered why a country as large and influential as Indonesia has only a few notable experts that appear at international legal forums?

Nevertheless, we should not lose faith that Indonesia will eventually meet its promise and see that the significance of international justice is not only to strengthen its international role but also to strengthen human rights protection in the country. Not too far in the future, one would hope.

Source: The Jakarta Post

* Sandra is program coordinator at the Human Rights Resource Center (HRRC) and a member of the Indonesian Civil Society Coalition for the International Criminal Court (Indonesian CICC).

By Stephen Lamony*

African states must take lead in prosecution of grave crimes rather than diluting the mandate of an over-stretched regional court.

The three year old impasse between the African Union (AU) and the International Criminal Court (ICC) is being further complicated by plans to expand the jurisdiction of African Court on Human and People’s Rights (African Court) to cover grave international crimes. While new leadership in the two bodies offers a chance at reconciliation, African states must live up to their obligations to hold perpetrators to account rather than diluting the mandate of the over-stretched African Court.

In theory, the AU and ICC share a common goal of ending impunity for perpetrators of gross human rights violations. The AU constitution promises “respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities.” In practice, however, the two have greatly differing plans for ending impunity, which is driving the AU to expand the African Court’s jurisdiction. Africa’s courts are also severely underequipped to prosecute perpetrators of gross human rights violations.

Proposed expansion of the African Court

In July 2012, the AU received a proposal to expand the statute of the African Court to include jurisdiction over international criminal prosecutions, including, but not exclusive to, genocide, war crimes, and crimes against humanity. The AU delayed a decision on the proposal until January 2013, when it would have more information on the costs of the expansion, it is unclear that it will pass at that stage or be further delayed.

The AfricanCourt—established in January 2004—is currently failing to carry out or implement its mandate to monitor state’s accordance with, and implementation of, the African Charter on Human and Peoples’ Rights. An expansion of the African Court’s charter would dilute its original mandate, offering little hope for success in prosecuting international crimes. With the cost of a single international criminal trial estimated at nearly US$20 million—almost double the combined approved 2009 budgets of the AU Commission and the African Court—financing is a major issue. The African Court does not have the funding or infrastructure necessary to successfully prosecute international crimes; efforts to secure funding or build infrastructure would take years, allowing the current culture of impunity in Africa to flourish.

Difficult AU-ICC relationship driving African Court proposals

The difficult relationship between the AU and ICC is driving the proposals to expand the jurisdiction of the African Court, with their differences stemming from fundamentally differing views of justice and peace. The AU sees international justice as an impediment to peace, and that the two are mutually exclusive, i.e. it is either peace or justice. The ICC meanwhile stands for justice for victims irrespective of the situation.

AU decisions also reflect several more specific concerns that serve to exacerbate this philosophical difference. In July 2009, for example, the AU aired several complaints about the Court and Rome Statute, including the United Nations (UN) Security Council (Council) power to refer cases to the ICC, the lack of transparency in ICC proceedings, the need for clarification on the immunities of officials whose states are not party to the Statute, and expressed a desire that there is regional input in determining whether or not to proceed with prosecutions. In February and July 2009, the AU called on the Council to reverse the ICC charges against Sudanese President Omar al-Bashir, arguing that they were undermining the peace process in Sudan and resolution of the conflict in Darfur.

Meanwhile, in July 2010, the AU took issue with the conduct the then chief prosecutor Luis Moreno-Ocampo, who it accused of “making unacceptable, rude, and condescending statements on the case of al-Bashir and other situations in Africa.” The perception of a biased ICC focus on African has been a recurring theme among certain leaders. Then in July 2011, the AU condemned the ICC charges against former Libyan leader Moammar Qaddafi for “complicating the efforts aimed at finding a negotiated political solution to the crisis in Libya” and urged domestic trials for Libyans charged with international crimes.

It was during its July 2009 General Assembly that the AU first asked the African Court to “examine the implications of the Court being empowered to try serious crimes of international concern.” Needless to say, the efforts to expand the jurisdiction of the African Court can therefore be seen as forming part of a wider AU contestation of ICC jurisdiction.

Habré case - beginning in sight?

Among many examples of African states failing to prosecute international crimes, Senegal’s slowness in bringing to trial former president Hissène Habré—under house arrest since 2005—for the political killings and torture that characterised his rule over Chad from 1982 to 1990 stands out.

In July of this year, Senegal and the AU signed an agreement to set up a special tribunal to try Habré, prompted by an International Court of Justice (ICJ) ruling that the country must begin proceedings without further delay if it did not extradite him. This followed years of intense pressure from the international community to extradite Habré to Belgium or another European country that already has the infrastructure necessary for a trial of such magnitude. Senegal and the AU, however, consistently refused these demands, insisting that a regional trial would be carried out. Since 2006, the AU and the Senegalese government have been trying, and failing, including through appeals to other African states, to raise the necessary funds to try Habré.

While President Macky Sall’s willingness to prosecute Habré is a promising sign, it remains to be seen how long it will take for the special tribunal to be set up and whether it will meet international standards. The outcome of the trial will also have a significant impact on the international community’s views on the effectiveness of African courts in trying human rights violators. If African national and regional courts continue to fail victims, international courts like the International Court of Justice (ICJ) or ICC will continue to intervene.

Given the failure of the African Court system to date in bringing Habré to justice, it seems ill-advised for the AU to continue its efforts for an independent regional court. Furthermore, it has been suggested that states parties to the Rome Statute do not have the legal ability to try any crimes (excluding genocide) in a regional African Court. Although this is as of yet unproven, this would be another reason for the AU not to expand the mandate of the African Court.

The way ahead

It remains to be seen whether the AU and the ICC will be able to resolve their differences, which continue to impede efforts to end impunity and protect human rights in Africa. However, with former South African minister Ms. Nkosazana Dlamini-Zuma taking over the leadership of the AU Commission and Ms. Fatou Bensouda becoming ICC chief prosecutor earlier this year, there is much scope for the building of a new AU-ICC relationship.

At their next summit in January, African leaders should take the AU commission to task over its continuing non-cooperation with the ICC in the knowledge that the African Court is not in a position to undertake prosecution of international crimes. “It cannot, and will not, offer relief to any of the people currently indicted or under investigation by the ICC” Instead the AU and individual states need to reject any kind of justice aimed at protecting a few powerful people, uphold their obligations to cooperate with the ICC, and strengthen national capacities and political will to prosecute perpetrators. Their citizens deserve no less and civil society stands ready to assist.

Source: African Arguments

* Stephen Arthur Lamony is a Ugandan born national who works for the Coalition for the International Criminal Court as a Situations Adviser. The views expressed here are mine and do not represent the official position of my employer.