IJCentral: International Justice Central

GUANTANAMO BAY, Cuba — The U.S. has been working with the Sudanese government to repatriate detainees from Guantanamo Bay, according to evidence presented Wednesday in the case of a Sudanese prisoner.

A military commission recommended late Wednesday that the prisoner, former al Qaeda cook Ibrahim al-Qosi, receive a 14-year sentence, but his actual sentence is likely to be much shorter because of a separate plea bargain, officials said.

After his sentence, he is set to be repatriated to Sudan, joining nine other Sudanese Guantanamo detainees sent home there, officials said.

The U.S. talks with Sudan suggest that the goal of closing Guantanamo may sometimes conflict with Washington’s other priorities.

The International Criminal Court, with U.S. assent, has issued an arrest warrant against Sudanese President Omar al-Bashir and accused him of genocide.

Seeking to assure the commission that Mr. Qosi wouldn’t threaten the U.S. once repatriated, Maj. Todd Pierce, one of his military defense attorneys, introduced correspondence from the Sudanese government promising to keep the former cook under strict watch.

In a document transmitted via the U.S. Embassy in Khartoum, the Sudanese National Intelligence and Security Service said it would put Mr. Qosi in mandatory “rehabilitation,” monitor his phone calls and email, and deploy “informants” to ensure he “no longer [adheres] to a radical ideology.” The agency said its program is “85% effective.”

In a letter addressed to Secretary of State Hillary Rodham Clinton, Sudanese Foreign Minister Deng Alor Kuol praised “the positive engagement of the Obama administration” and added that “Sudan is ready to cooperate with President [Barack] Obama in his effort to close down the Guantanamo facility” by accepting additional detainees.

The Bashir regime has been waging a war in the country’s Darfur region, and in 2005, the United Nations Security Council referred the case to the International Criminal Court. Starting in 2007, the ICC began issuing arrest warrants for Mr. Bashir and several of his confederates. In February, the ICC added genocide to the allegations against Mr. Bashir.

Mr. Bashir has rejected the charges and refused to surrender to the ICC.

State Department spokesman P.J. Crowley noted that the nine ex-detainees now in Sudan were sent there by the Bush administration. He said the U.S. has “principled engagement” with Sudan, but that engagement doesn’t include Mr. Bashir. The U.S. wants Mr. Bashir to cooperate with the International Criminal Court, Mr. Crowley said.

Mr. Qosi, about 50 years old, was captured in Afghanistan in the weeks following the 2001 U.S.-led invasion. He was one of four Guantanamo detainees the Bush administration selected to inaugurate its military commissions plan in 2004, but those trials bogged down amid legal challenges and internal disarray

Military prosecutors initially described Mr. Qosi as the “deputy chief financial officer” of an al Qaeda front company who funneled money to the terrorist network’s operations and “signed checks on behalf of Osama bin Laden.”

When the Bush administration refiled charges in 2008, it dropped those allegations and described Mr. Qosi as a cook at an al Qaeda camp near Jalalabad, Afghanistan, who also worked as a driver and on a mortar crew.

Mr. Qosi agreed to a sentence under a secret plea bargain. He will receive that sentence instead of the 14-year term recommended Wednesday by the military commission, assuming the plea-bargain sentence is shorter, U.S. officials said.

The Arabic-language news channel al Arabiya, citing two unnamed people, said the plea-bargain sentence is two years.

Human-rights groups acknowledged the difficulty in resolving Guantanamo cases, but cautioned against making a quid pro quo with the Bashir regime.

“Whatever help the U.S. gets from Sudan for the goal of closing Gitmo is a bad bargain,” said American University visiting professor Juan E. Mendez, a special adviser on crime prevention to the ICC prosecutor. “Bashir milks that collaboration for all it is worth in his attempt to break the isolation in which he has been placed due to the arrest warrant issued by the ICC.”

Mary Ellen O’Connell, a professor of international law at the University of Notre Dame, took another view. “Engaging with the Sudanese on this issue is more likely to have a positive impact than a negative one. The United States is in a difficult position to press Sudan on human rights violations, while holding Sudanese nationals at Gitmo,” she said. “And during the course of this repatriation, The U.S. may actually find some opportunities to press for accountability and new policies for Darfur and southern Sudan,” she said.

source:  Wall Street Journal

Spanish judge Baltasar Garzon was attacked by Jorge Rafael Videla followers, leaving federal courts in Cordoba. A journalist of Radio “Nacional” was punched in the face.
A man, identified by the group HIJOS as Alberto Aprea, was the one who hit with an open hand to journalist Aldo Blanco, when Blanco tried to take a picture of the aggression against the former Iberian judge.
Lawyer Claudio Orosz, said that when “Garzón was retiring after the audience, two relatives of the oppressors started to insult him.”

source: Momento24.com

I’ve argued for the past couple of years that the ICC should open a formal investigation into the situation in Colombia, because it is a non-African situation that satisfies most, if not all, of my criteria for situational gravity: (1) crimes committed with government involvement; (2) systematic criminality; (3) socially alarming crimes such as enforced disappearance and torture.  Here is a snippet from a June 2009 report by the American NGOs Coalition for the International Criminal Court (AMICC):

In response to FARC attacks, landholders and drug dealers organized in 1997 their own force to free Colombia from left-wing guerrillas: the Autodefensas Unidas de Colombia (United Self-Defense Forces of Colombia, AUC). It is comprised of several right-wing paramilitary groups, wealthy landowners, drug cartels and segments of the Colombian army. Just like the force they try to combat, they allegedly use terror tactics such as massacres, selective killings and threats, mainly against human rights defenders and trade union and other social movements’ leaders, journalists and members of Government. Over the past 10 years the paramilitaries, with support of the Colombian army and government, have killed some 15,000 trade unionists, peasants and indigenous leaders, human rights workers, land reform activists, leftwing politicians and their sympathizers.

Apparently Judge Garzon, now consulting with the ICC, agrees with me.  He recently suggested that, in light of Colombia’s failure to bring the perpetrators of such crimes to justice, the ICC is likely to step in:

Colombia’s inability to bring cases to court was the object of the Spaniard’s criticism. “There is a lack of the political and judicial coordination and resolve necessary to begin trials,” he said. Victims had suffered too much without seeing results, he added.
The judge said that if Colombian authorities are unable to start proceedings “the ICC will have to say something - there will be claims and the court will have to say something.”
Garzon was referring to the Colombian Justice and Peace law, which allows demobilized paramilitaries to receive a reduced sentence if they make a full confession of their crimes. More immediate actions are necessary, he claimed, even if it means resorting to “partial indictments” - a mechanism which allows the suspects to be tried on crimes that come to light as their confession proceeds, rather than waiting for a full admission to be made.
The law came into force in 2005. However, despite the participation of 4,600 demobilized paramilitaries and guerrillas, only two people have been sentenced.

I tend to agree with Garzon’s assessment of the Justice and Peace Law, as do many scholars who know far more about Colombia than I.  (See, for example, this excellent article by Jennifer Easterday at Berkeley.)  To be fair, though, others believe that the ICC does not need to intervene in Colombia, because its threats to do so have encouraged the Colombian judiciary to increase its efforts to combat impunity, an effect known as “positive complementarity.”  Here is the AMICC’s assessment:

The Prosecutor of the International Criminal Court, by pressuring Colombia through statements and visits, seems to have boosted Colombia’s historically ineffective justice system. The Colombian Supreme Court is making an unprecedented effort and has had success in bringing to justice those responsible for the worse atrocities against human rights. Although the UN and human rights NGOs continue to report crimes against humanity, for the first time in decades the Colombian judiciary appears to be an effective institution. Thus, under the complementarity principle, the ICC is unlikely to intervene because Colombia, at least for the time being, appears willing and able to hold accountable those who bear the ultimate responsibility for crimes under the Court’s jurisdiction.

Such stark disagreement between Colombia experts may explain the OTP’s reluctance to open a formal investigation.  In the end, though, the issue may turn out to be moot — because Colombia itself is now suggesting that the ICC should investigate crimes committed by FARC rebels allegedly based in Venezuela:

Colombia’s Prosecutor General Guillermo Mendoza Diago said Thursday that the Andean nation is considering whether to take evidence of numerous FARC and ELN camps in Venenzuela to the International Criminal Court (ICC), given that the guerrillas commit crimes against humanity and then seek refuge over the border.
“If we manage to establish that and we have information that the people who attack seek refuge in Venezuela and the authorities don’t do anything, but instead support them, then we would be able confirm that we could take the case to the International Criminal Court,” Mendoza said.
According to Mendoza, high-ranking Venezuelan officials, including Venezuelan President Hugo Chavez, could hypothetically be called to testify before the court.
“If the International Criminal Court prosecutor -  after we were to have presented the corresponding complaint, well founded in evidence were to be able to establish that Venezuelan authorities were co-participants in these acts, they could all be called to respond,” Mendoza said.
The prosecutor general said that the Colombian government had handed him a file documenting at least 60 attacks against Colombians, committed by FARC guerrillas, who had then fled to Venezuela.

Mendoza is correct that the ICC could investigate FARC crimes committed in Colombia — but he needs to remember that states can only refer situations to the Court, not individual cases or groups of cases.  So if Colombia wants to refer FARC’s crimes, it will have to accept the possibility that it will end up under the OTP’s microscope, as well.
I, for one, would very much like that to happen.

source: Opinio Juris

States can’t be relied on to honour their statutory obligations

The recent visit to Chad by Sudanese President Omar al-Bashir illustrates a fundamental problem confronting the International Criminal Court.

Bashir was indicted, for war crimes and crimes against humanity, in March 2009. Earlier this year, the charges against him were expanded to include three counts of genocide.

According to the Rome Statute that created the International Criminal Court, all member states are obliged to arrest indictees if they enter their territory.

However, Chad, which has signed the Rome Statute, offered Bashir a warm welcome rather than an arrest warrant. Chad’s leaders, who claimed that the court has been unfairly targeting African leaders, said their country was not obligated to facilitate Bashir’s arrest.

Chad cited a resolution by the African Union, which urged member states not to cooperate in sending the Sudanese president to The Hague.

The decision by Chad’s President Idriss Deby, to place his country’s relations with the African Union ahead of its obligations to the international court, has highlighted the court’s inability to require compliance among its member states.

At issue is the African Union’s contention that Bashir enjoys immunity from prosecution because he is a head of state. The court insists no such immunity exists, but since Sudan is not a signatory to the statute creating the court, some have argued that it is not governed by its rulings.

In addition, Article 98 of the Rome Statute stipulates that a country does not have to comply with a court’s request if it runs contrary to “its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State.”

Al-Hadi Shalluf, a French-Libyan lawyer, said, “The African Union is a regional organization and it is recognized by the United Nations. But it has no authority and no mandate to break international law.”

Other experts were more equivocal.

“There may be obligations on state parties, created by the Rome Statute, and Chad is subject to these obligations under international law,” said Professor William Schabas, formerly of Montreal and now head of the Irish Centre for Human Rights. “But Chad is also a member of the African Union and it may feel compelled to follow the political direction of the African Union as reflected in the resolution.”

Beyond the legal wrangling, the fact is that there are no sanctions outlined in the Rome Statute. This leads to punish countries that fail to comply, leads other lawyers to conclude that the court’s hands are tied.

“The court can’t do an awful lot because the whole Rome Statute is predicated upon complementarity, and states fulfilling their statutory obligations, and there is no sanction for non-compliance,” explained Karim Khan, who works as a defence lawyer at the court.

“The reality is that an indicted head of state is only going to be arrested when the states concerned decide that (it is in) their interests to bring him to justice,” Khan said.

Simon Jennings is a reporter in The Hague.

Institute For War & Peace Reporting

Source: The Montreal Gazette

Even as the United States proceeds this week to prosecute Omar Khadr, a child soldier held at the Guantanamo Bay prison, a top United Nations official has warned that this move would violate a statute of the International Criminal Court that no person under the age of 18 years should be tried for war crimes.

Mr. Khadr was arrested in Afghanistan in 2002 for allegedly throwing a grenade that killed a Delta Force medic, among other charges. He was said to have been 15 years old at the time.

Radhika Coomaraswamy, Secretary-General Ban Ki-moon’s Special Representative for Children and Armed Conflict, noted that prosecutors in other international tribunals have used their discretion not to prosecute children, adding, “Since World War II, no child has been prosecuted for a war crime.”

Child soldiers are victims

Ms. Coomaraswamy also said that child soldiers ought to be treated primarily as victims and alternative procedures should aim at rehabilitation or restorative justice rather than trial and prosecution by military tribunals. She had earlier warned that Mr. Khadr’s prosecution would set a dangerous international precedent for other children who are victims of recruitment in armed conflicts.

She went on to urge the U.S. and Canada, of which country Mr. Khadr is a citizen, to come to “a mutually-acceptable solution on the future of Omar Khadr that would prevent him from being convicted of a war crime that he allegedly committed when he was child”.

According to reports, constitutional experts have said he should have been released “years ago” given his youth and “evidence that his family upbringing forced him to take up arms with Bin Laden”. Others were reported to have argued that he should be returned to Canada and reunited with his family and possibly face trial there in a civilian court.

The LA Times reported that since his capture, Mr. Khadr has brought allegations that the U.S. army tortured him, held him in harsh conditions and prevented him from contacting his family and attorneys. He said he had suffered “deep emotional distress and borderline mental illness”. However, a ruling by a military judge this week said that Mr. Khadr’s confessions in prison could be used against him and dismissed arguments that they were “tainted by mistreatment”.

source: The Hindu

On 10 August, 2010, the Republic of Seychelles ratified the Rome Statute of the International Criminal Court. The Statute will enter into force for the Seychelles on 1 November, 2010, bringing the total number of States Parties to the Rome Statute to 112.

The Court welcomes the Seychelles’ decision to join the growing group of states determined to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole, for the sake of present and future generations.

For further information, please contact Ms Sonia Robla, Chief of the Public Information and Documentation Section at +31 (0)70 515 8089 or (mobile) +31 (0)6 46 44 87 26; or at sonia.robla@icc-cpi.int

source: ICC

Naomi Campbell’s evidence at the war crimes trial of the former Liberian leader Charles Taylor was challenged today by her former agent Carole White and the actor Mia Farrow. Follow how the day unfolded

To read the complete article CLICK HERE

Out-going Colombian President Álvaro Uribe filed a complaint before the International Criminal Court against Venezuelan President Hugo Chávez for crimes against humanity that derive from the alleged harbouring of Colombian guerrilla fighters in Venezuelan soil, Uribe’s lawyer, Jaime Granados, informed.

A local Colombian radio station reported that Granados said he also received instructions from Uribe to file a complaint against the Venezuelan government before the Inter-American Commission of Human Rights (IACHR) for allowing the presence of “terrorists.”

The Colombian government showed the Organization of American States (OAS) on July 22 pictures and videos it considers as “evidence” of the presence of at least 1,500 Colombian guerrilla fighters in the neighbouring country. Among them is thought to be “Iván Márquez,” a high-ranking member of the Revolutionary Armed Forces of Colombia (FARC).

Uribe’s administration requested an international verification committee be created, while Chávez responded on the same day by completely severing bilateral ties, which were already “frozen” since last year.

Granados informed of the complaint just as President-elect Juan Manuel Santos is to take office in a ceremony to be carried out on Saturday in Bogotá.

source: Buenos Aires Herald

The new international criminal tribunals are unique, and are indeed a matter of pride for humanity. They send an unequivocal message that those committing egregious violations of human rights will be held accountable — no one is above the law and impunity will no longer be tolerated.

It is a pity that we had to wait several decades after the Nuremberg and Tokyo tribunals — which prosecuted and punished Nazi and Japanese leaders for war crimes following World War II — for the creation of these modern versions. But the Cold War dashed all hopes that an international criminal justice system could ever be created.

However, as religious hatred and ethnic cleansing in Bosnia led to widespread atrocities, the U.N. Security Council created the first ad hoc war crimes tribunal for Yugoslavia in 1993. The tribunal for Rwanda followed to deal with the genocide there. Other ad hoc and U.N.-backed tribunals were created for Sierra Leone, East Timor, Cambodia, and Lebanon.

With the establishment of the International Criminal Court at The Hague, Netherlands, we now have a permanent international tribunal with jurisdiction over genocide, war crimes, and crimes against humanity.

Supermodel Naomi Campbell this week learned the power of these tribunals. Forced to testify at the war crimes trial of former Liberian President Charles Taylor, she is appearing with her former agent and with actress Mia Farrow before a special court for Sierra Leone. This court has a Denver connection: Its chief prosecutor, Brenda Hollis, is an alumna of the University of Denver Sturm College of Law, and my former student. It is the first time a former African head of state has been put on trial before an international court.

Taylor allegedly traded weapons for “blood diamonds” obtained by rebels in Sierra Leone during their protracted civil war (1991-2002), which claimed more than 300,000 victims. Campbell’s testimony could support the prosecutor’s argument that Taylor gave her rough diamonds, to rebut his denial that he ever possessed them.

Taylor is not the only one to be charged with international crimes: The former president of Serbia, Slobodan Milosevic, died in the War Criminals Jail in The Hague, where he was on trial at the Yugoslavia Tribunal. A sitting head of state, Omar al-Bashir of Sudan, has been indicted by the International Criminal Court to face charges of genocide, among others. Cases presently before the ICC include the Lord’s Resistance Army leaders from Uganda as well as leaders from the Congo and Central African Republic. Cases from Kenya and Sri Lanka could be next.

In late July, the U.N.-backed Cambodia Tribunal convicted and jailed Kaing Guek Eav, known as “Duch,” for 35 years. He oversaw a prison where more than 15,000 people were tortured before being killed and was one of the Khmer Rouge officials who were responsible for the “killing fields” of Cambodia, when more than 2 million people perished in the late 1970s. Another former student of mine, Christopher Hale, is a member of the prosecution team in Cambodia. Other major Khmer leaders now under prosecution may not live to see the end of their trials.

Watching the Congolese warlord’s trial at the ICC in The Hague this June was an unsettling experience for me and my law students, who were serving as interns at the tribunal. One witness’ story of mass killings was so matter-of-fact it was chilling.

While costly, the tribunals play an increasingly pivotal role in deterring heinous conduct. Ruthless dictators and perpetrators of human rights violations, like al-Bashir of Sudan, are now on notice that they may run but can no longer hide.

Ved P. Nanda (vnanda@law.du.edu) is Evans University Professor and director of International Legal Studies at the University of Denver. He is a regular contributor to the op-ed pages.

source: Denver Post

African members of the International Criminal Court must clarify whether they will arrest Sudanese President Omar al Bashir for genocide and war crimes, the Coalition for the International Criminal Court (CICC) says.

Bashir is on the International Criminal Court’s (ICC) most wanted list for orchestrating a campaign of rape, murder and torture in Sudan’s war-torn Darfur region. Last month, ICC judges added three genocide counts to Bashir’s charge-sheet, which is already listing seven counts of crimes against humanity and war crimes.

African leaders were once the most passionate supporters of the permanent war crimes tribunal in The Hague. Africa is the continent with the most countries - 30 - belonging to the ICC. But ever since Bashir was indicted in 2009, African leaders are having second thoughts, concerned that the permanent war crimes tribunal is only targeting their continent.

The CICC - melding 2,500 civil society groups in 150 countries - on Wednesday rang the alarm on an African Union decision - approved on Tuesday July 27th - which condemns the warrant for Bashir and calls for its suspension.

“Al-Bashir is widely considered a fugitive from justice, especially in Africa. Rather than throw support behind crucial accountability processes in line with the Constitutive Act of the AU that commits member states to reject impunity, the Heads of State are playing a political game to show support for their colleague Bashir,” says Oby Nwankwo from the Civil Resource Development and Documentation Centre, a CICC member. “African victims deserve more than this from our heads of state; indeed the African continent deserves more.”

The CICC also expressed its concern over the AU’s decision to postpone the establishment of an ICC-AU Liaison Office. William Pace, CICC Convenor says such an office “would facilitate formal and structured dialogue between the court and the AU and could [...] address some of the Union’s concerns about the court.”

Bashir unlikely to risk arrest in Libya
Until now, only Botswana and South Africa have said they would arrest Bashir if he set foot on their territory. Stephen Lamony, CICC Africa Situations Adviser, calls “on more African states parties to the ICC to make clear their continued obligations to the Court.”

On Wednesday Bashir will fly to Libya for a two-day visit. Libyan leader Muammar Gaddafi, a close ally to Bashir, has not signed the Rome Statute that established the ICC in July 2002 and is unlikely to arrest him. This will be Bashir’s second trip abroad since the ICC widened Bashir’s charge sheet to include genocide last month.

Chad, a full ICC member, hosted Bashir in July but did not arrest him, reflecting a rapprochement between the neighbours who had waged a proxy war in Darfur and eastern Chad.

In 2000 Sudan itself signed the Rome Statute that established the ICC but had not ratified it by 2005 when the UN Security Council referred Darfur to the court’s prosecutor Luis Moreno Ocampo. Bashir rejects the ICC charges and also refuses to hand over two other suspects - former minister of humanitarian affairs in Darfur, Ahmad Haroun and Janjaweed militia leader Ali Kushayb.

source:  Radio Netherlands Worldwide