IJCentral: International Justice Central

(Tokyo) - Japan should publicly support the establishment of an international Commission of Inquiry into war crimes and crimes against humanity in Burma, Human Rights Watch and five other nongovernmental organizations said in a letter to Foreign Minister Seiji Maehara made public today.

Human Rights Watch, Human Rights Now, Burmese Relief Center-Japan, People’s Forum on Burma (Japan), Amnesty International Japan, and BurmaInfo urged Japan to support a resolution on Burma which includes language establishing a United Nations Commission of Inquiry at the upcoming session of the UN General Assembly. This move follows the March 2010 statement by the UN special rapporteur on human rights in Burma, Tomas Ojea Quintana, calling on the UN to consider establishing a Commission of Inquiry into crimes against humanity committed in Burma.

“Establishing an international Commission of Inquiry would be a significant step to end impunity in Burma,” said Kanae Doi, Japan director at Human Rights Watch. “As one of the few Asian member states of the International Criminal Court and a major Asian democracy, Japan is in the unique position to take the lead in reaching out to other Asian neighbors to join this critical movement to seek justice for Burma’s people.”

For years, the UN has documented and publicly reported on serious, widespread, and systemic violations of international human rights and humanitarian law in Burma. To date, there have been 19 resolutions on Burma passed by the UN General Assembly.

The letter states that the UN must move beyond this status quo of documenting rights violations and passing annual resolutions on the grave human rights situation in Burma. The six organizations called on Japan to play an active and leading role in supporting this international Commission of Inquiry, and to ensure the investigation covers violations perpetrated by any and all of the parties to Burma’s long-running civil conflict.

The groups state that “it is time for Japan and other like-minded states to ensure that these crimes will be subject to greater international scrutiny and take steps to halt the cycle of impunity in Burma. The establishment of an international Commission of Inquiry is an important first step.”

Several EU member states such as the United Kingdom, Hungary, the Czech Republic, and the Netherlands, as well as the governments of the United States, Australia, and New Zealand have now publicly announced their support for an international commission to investigate crimes in Burma.

Human Rights Watch also released today an extensive document on “Frequently Asked Questions” in Japanese that provides detailed explanations of various issues relating to accountability for crimes in violation of international law in Burma.

“The victims of serious international crimes in Burma deserve recognition and justice,” Doi said. “The new foreign minister Maehara should take this opportunity to assume a leadership role in bringing about human rights improvement in Burma.”

source: Human Rights Watch

NAIROBI (Reuters) - More than half of Kenyans want the masterminds of violence which followed disputed elections in 2007 tried at the International Criminal Court (ICC) despite planned judicial reforms at home, an opinion poll showed.

The Synovate poll was published after Justice Minister Mutula Kilonzo said trials at the Hague-based ICC were unnecessary as the cases could be heard in Kenya.

About 1,300 people were killed and more than 300,000 displaced by the violence in late 2007 and early 2008 which also badly hurt the region’s largest economy.

The prospect of ICC trials has struck fear into Kenya’s political class, as the state-funded Kenya National Commission on Human Rights has named several senior cabinet minsters and prominent businessmen as architects of the violence.

Political commentators said Kilonzo might have been gauging public reaction with his comments published in a newspaper on Sunday. Some cabinet colleagues rejected his remarks, arguing that the coalition government was committed to the ICC process.

“Fifty-four percent still prefer The Hague for prosecution of the perpetrators of the post-election violence,” pollster Synovate said when releasing the results on Tuesday.

“This is more than twice of those who think that the perpetrators of Post Election Violence should be forgiven (22 percent) or tried locally (22 percent).”

A Kenyan businessman has sued the International Criminal Court accusing it of operating illegally in Kenya.

Joseph Gathungu is seeking orders to stop the ICC chief prosecutor Luis Moreno Ocampo operating in Kenya because his investigations and intended prosecution are not provided for in the country’s new constitution promulgated last month.

“To allow the International Criminal Court to operate in Kenya amounts to surrender of the sovereignty of Kenya to foreigners which is totally untenable” said Gathungu in papers filed at the High Court in Kenya’s port city of Mombasa.

He also wants the court to declare ICC’s investigation and prosecutions of any Kenyans at the Hague “null and void”.

Attempts to form a Kenyan tribunal to try the suspects were defeated in parliament last year, despite public support from President Mwai Kibaki and Prime Minister Raila Odinga—the two leading candidates in the 2007 elections.

A powersharing deal brokered by former U.N. Secretary General Kofi Annan stopped the bloodshed and created Kenya’s first coalition government.

Kilonzo said Kenya’s new basic law was set to overhaul the judiciary which critics say is bureaucratic and prone to corruption.

The ICC is a court of last resort, taking on cases which cannot be tried by domestic courts or when national proceedings are not genuine. The ICC’s Ocampo expects to charge up to six suspects by the end of this year.

The poll surveyed 1,501 adults nationwide last week, Synovate said.

source: Rueters Africa

SA leads the way in standing up against war criminals

UNTIL the last 15 years of the 20th century, international criminal justice did not exist. Since the establishment by the United Nations (UN) of the International Criminal Tribunal for the former Yugoslavia in 1993, the growth and development of international justice for war criminals has grown at a dramatic pace.

The successes of the Yugoslavia tribunal and the Rwanda tribunal that followed in 1994 were sufficient to spur many nations to move towards the establishment of a permanent International Criminal Court (ICC). They also spawned the so-called mixed or hybrid tribunals for East Timor, Sierra Leone, Cambodia and Lebanon.

These criminal courts demonstrated that international criminal justice can work efficiently, that fair trials in international courts are possible and that their work advances the development of the law. The most important development has been the prosecution of gender-related crimes and especially systematic mass rape.

The Rome Treaty of 1998 established the ICC. It required the ratification of 60 states to bring its provisions into operation. Even its most optimistic supporters did not anticipate that it would take less than four years for that to happen. SA has been one of the ICC’s most active supporters and helped gain important support from other governments in our region. The ICC became operational on July 1 2002. Today, there are 113 nations that have joined the ICC by ratifying the Rome Treaty. The African region leads, with 31 ratifications, followed by every member of the European region.

This wide support for the ICC was accompanied by the unexpected reference of its first investigations by three African governments — Uganda, the Democratic Republic of Congo and the Central African Republic. The court did not seek those referrals — those governments sought the intervention of the court. The fourth situation — that of Sudan and the crimes committed in Darfur — was referred by the UN Security Council itself. Only the fifth, Kenya, has come about as a result of the p rosecutor’s initiative.

This last situation arises from the violence that accompanied the 2007 elections in Kenya and followed a recommendation from former UN Secretary-General Kofi Annan and a Kenyan commission of inquiry.

The ICC became involved only after Kenya’s parliament decided not to set up its own domestic investigation.

It thus becomes apparent that the allegation that the ICC is in some way biased against African states or was set up to deal only with Africa is unfair and without substance. In addition, the prosecutor has made clear he is investigating other situations in Latin America and the Middle East.

The ICC operates on a system of “complementarity”. This means that the court has no jurisdiction at all in any case if the government of the nationality of the suspect is willing and able to investigate and, if there is sufficient evidence, to prosecute that person. Such a domestic investigation undertaken in good faith is conclusive regardless of the outcome and will deprive the ICC of any jurisdiction in the matter. The ICC is thus a court of last and not first resort. Modern international criminal law recognises that it is more appropriate for war criminals to be investigated and prosecuted by domestic rather than by international mechanisms.

The courts of Sudan are clearly not willing or able to investigate Sudanese leaders who have credibly been found by the ICC to be answerable for the most serious crimes, including genocide. The ICC has issued arrest warrants for a number of Sudanese leaders, including President Omar al-Bashir. The governments of nations that have ratified the Rome Treaty are legally obliged to arrest those people, To its credit, the South African government warned al-Bashir that should he visit SA, he stands to be arrested and handed over to the ICC. That is an obligation SA undertook when it ratified the Rome Treaty. It is also its obligation pursuant to the terms of a binding and peremptory resolution of the UN Security Council when it referred the Darfur situation to the ICC.

It is a matter of deep regret that Kenya failed to live up to those same obligations when al-Bashir recently visited Nairobi. Kenya has been roundly criticised for failing to uphold its international obligations. The only body that is able to sanction Kenya for flouting its international obligations is the s ecurity c ouncil. The law is clear and what is necessary is the political will to do something about it. The s ecurity c ouncil has the power and the right to impose appropriate sanctions against Kenya. If the s ecurity c ouncil fails to take such action, its own credibility will be called into question. It would be recognising the ability of member states of the UN to flout binding resolutions of the council.

Even in the absence of appropriate action by the s ecurity c ouncil, Kenya has made itself an international outlaw and has diminished its standing in the international community. Countries that do not uphold and implement their international obligations, seriously assumed, will undoubtedly suffer other prejudicial consequences, especially in the sphere of international trade and commerce. The adherence by nations to their international obligations is an important benchmark for major nations entering into trade and other relationships.

It was because of the system of complementarity that recognises the right of nations to investigate allegations against their own citizens that the UN and the European Union called upon Israel, the Palestinian Authority and Hamas to investigate the serious findings contained in the fact-finding mission on Gaza that I headed last year. Secretary-General Ban Ki-moon also called on the parties to hold independent domestic investigations into the conduct and consequences of the Gaza conflict.

In March, the UN Human Rights Council decided to establish a panel of independent experts to monitor the independence, effectiveness and genuineness of the investigations and their conformity with international standards. That panel is being led by one of Europe’s leading international lawyers, Prof Christian Tomuschat.

To date, Hamas has launched no investigations at all. The Palestinian Authority, for its part, did establish an independent domestic investigation and its findings were recently handed to the s ecretary-g eneral. The Israeli military conducted its own investigations behind closed doors. Those inquiries have confirmed some of the most serious incidents detailed in the Gaza report. Judgment on the extent to which the parties have carried out their international obligations in this regard must await the report of the Tomuschat panel. That report is soon to be presented to the Human Rights Council.

From the foregoing, it should be apparent that international criminal justice has developed at an impressive pace in recent years. At its core is the protection of civilians during times of war. Too many millions of innocent children, women and men have died in the wars that plague our planet. For too long there has been effective immunity for the war criminals responsible. That immunity is steadily being withdrawn as many nations join the ICC. South Africans should take pride in our government having been one of the leaders in this movement.

- A former judge of the Constitutional Court, Goldstone will be giving a public lecture reflecting on International Accountability for War Crimes on September 27 at the University of Johannesburg.

source: Business Day

It is time for the UN to investigate the consistent reports of mass human rights violations in Burma to enable the identification of those responsible. The failure to take this step is unjustifiable. For decades NGOs and UN actors have documented reports of extrajudicial killings, sexual violence, torture, mass internal displacement, sexual violence, the use of child soldiers and forced labour, and the list goes on. The scale and gravity of the violations reported strongly suggests that they amount to war crimes or crimes against humanity.

Yet, although it is undeniable that mass violations have been, and continue to be, perpetrated primarily by the Burmese military junta but also by armed ethnic groups, those who commit these alleged international crimes do so with absolute impunity. This impunity will not end without a UN initiated investigation specifically aimed at obtaining evidence in order both to clarify the true extent of the atrocities, but also to obtain evidence linking an individual to a specific crime in order to establish accountability. Once such evidence has been obtained, it will be a question of whether the UN and the international community will have the necessary political will to bring the perpetrators to justice.

There is strong evidence of mass human rights atrocities in Burma. In May 2009 the International Human Rights Clinic at Harvard Law released the report, Crimes in Burma, which highlighted the fact that for fifteen years, numerous UN actors, such as the Special Rapporteur for Burma, the General Assembly and Commission on Human Rights had raised considerable concern over the perpetration of grave human rights violations in the country. A former Special Rapporteur for Burma reported that he had received information indicating the military regime had destroyed, forcibly displaced, or forced the abandonment of over 3,000 villages in eastern Burma where ethnic minorities predominate. Further, that at least one million people fled their homes because of the attacks, escaping as refugees and internally displaced persons.

Reports of mass human rights atrocities have continued since the release of the Crimes in Burma report. Just one of the many examples available is provided by the Special Rapporteur’s comments on the situation in the Shan state in his report of March 2010:

“The Special Rapporteur is alarmed by the dire human rights situation in Shan State. Since 27 July 2009, it is reported that the military have burned down over 500 houses and scores of granaries, and forcibly relocated almost 40 villages, mostly in the Laikha township. According to reports, over 100 villagers, both men and women, have been arrested and tortured. At least three villagers have been killed. This would be the largest forced relocation since 1996–1998, when over 300,000 villagers in southern and central Shan State were displaced.”

UN actors have also highlighted the pervasive culture of impunity that perpetrators enjoy, observing a general failure to investigate allegations of abuse, the threat of reprisals for those who report abuses, the failure to prosecute those responsible, and the lack of an independent judiciary.

However, NGOs and UN actors face tremendous difficulties in obtaining the evidence from victims and others in Burma, which would establish the full extent of the atrocities committed and allow for the identification of, and obtain evidence against, individual perpetrators. For example, the Special Rapporteur’s last visit to Burma on 15 January 2010 was limited to a mere five days, and he was provided with his programme on a daily basis by the government. Such a limited and controlled investigation cannot hope to establish the true extent of the situation. Further, it is unable to provide the detailed evidence directly linking a perpetrator to an alleged crime, which is required to establish individual responsibility.

This reality has been recognised by two former Special Rapporteurs for Burma, who have come out in support of the call for a Commission of Inquiry into the issue of international crimes in Burma, as well as the current rapporteur, Tomas Ojea Quintana. He stated in March this year that:

“Given the gross and systematic nature of human rights violations in Myanmar [Burma] over a period of many years, and the lack of accountability, there is an indication that those human rights violations are the result of a State policy that involves authorities in the executive, military and judiciary at all levels. According to consistent reports, the possibility exists that some of these human rights violations may entail categories of crimes against humanity or war crimes under the terms of the Rome Statute of the International Criminal Court.

The mere existence of this possibility obliges the Burmese government to take prompt and effective measures to investigate these facts. There have clearly been cases where it has been necessary to establish responsibility, but this has not been done. Given this lack of accountability, UN institutions may consider the possibility to establish a Commission of Inquiry with a specific fact-finding mandate to address the question of international crimes.”

Thus, on the issue of whether the reported mass violations amount to international crimes, the Special Rapporteur’s statement that the evidence he has received of the incidents of sexual violence, extrajudicial killings and torture suggests that they are widespread, systematic and part of a deliberate strategy to terrorise and subjugate civilians, clearly supports such a conclusion.

Although such statements may in of themselves be insufficient to bring individuals to trial, it should be recognised how strong the supporting evidence for war crimes and crimes against humanity actually is in the Burma context. In addition to the assessments by the various reliable UN bodies referred to in the ‘Burma Report’ much information has been provided by various NGOs, not all of whom are dependent upon second hand sources for what they report (however cautious they may have to be about explaining how they obtain first-hand ‘in-country’ intelligence and providing anonymity to the victims and witnesses spoken to).

There has been no effective counter from the regime to the allegations made and no effective and independent inquiry of any kind has been published that suggests the allegations reported by the UN and other bodies are wrong. It is, of course, a reality that those applying the (international) rule of law and who therefore proceed on the basis of evidence are at a disadvantage in comparison to those who resist the provision of information about crimes, supported as they may be in this approach by the political interests of patron states.

We have little, if any, doubt about the strength of the underlying evidence and thus of the fact that very serious crimes have been and are being committed in Burma.  This is the reason we – and many others – are pressing for political action that will render impossible the continued blocking of truth by political action or inaction.

It is therefore imperative that a Commission of Inquiry is established by the UN. Such a Commission could be established directly by the UN Secretary General, which was the route adopted in the case of the Bosnian war crimes commission in the early 1990s. It could also be established by the Security Council, though this procedure is obviously susceptible to a veto by permanent members such as China.

The necessity of such a step has been recognised by some members of the international community. These include the USA, Canada, Australia, Slovakia and the Czech Republic. It is to be hoped that other nations, in particular those on the Security Council, will adopt the same stance.

In the event that a Commission of Inquiry was established there is every reason to believe that it would obtain evidence of mass international crimes. Moreover, a properly functioning commission should be able to gather evidence establishing the accountability of both the perpetrators in the field and those exercising command and control over the strategy of terror.

The inevitable question that would arise once the Commission identified the perpetrators at all levels of command and obtained sufficient evidence against them would be: will the international community bring the perpetrators to justice? It is impossible to answer this question conclusively. Whether the perpetrators of the mass human rights atrocities would be brought to trial is entirely dependent upon the will of the international community.

At this time, there is no indication that the Burmese government will take any genuine and effective steps to end the prevailing culture of impunity in Burma. Further, Burma is not a State Party to the International Criminal Court, and so for alleged perpetrators to be tried by this institution the Security Council would have to refer the situation to the Court. It must not be under-estimated how difficult this would be to achieve. Again, such a procedure is susceptible to a veto by a permanent member of the Security Council – the most obvious concern of course being China. It must be hoped that the political will demonstrated by a future establishment of a Commission of Inquiry would carry through to prosecution of those it identified.

It seems clear, therefore, that if a UN Commission of Inquiry was initiated it would not be a lack of evidence that would prevent trials of alleged perpetrators of mass human rights atrocities in Burma; rather a lack of the necessary international political will by the UN and its member states.

Sir Geoffrey Nice QC is co-Commissioner of the Harvard International Human Rights Law Clinic Report Crimes in Burma. Sir Geoffrey worked in the Office of the Prosecutor at the International Criminal Tribunal for the former Yugoslavia, and was the lead trial attorney in the prosecution of Slobodan Milošević.

Julianne Kerr Stevenson is co-author of the Harvard International Human Rights Law Clinic Report Crimes in Burma and Member of the Bar.

They write on behalf of the Burma Justice Committee.

source: Democratic Voice of Burma

Justice minister Mutula Kilonzo on Sunday came under criticism for suggesting that the International Criminal Court calls off its investigations into post-election violence.

Mr Kilonzo had said that with the passage of the Constitution and creation of new institutions, post-election violence suspects could be tried at home.

Lobby group leaders said the minister’s attack on the International Criminal Court was a betrayal of Kenya’s commitment to end impunity for human rights atrocities.

“It further exposes the depth and extent of a well-choreographed political scheme being played by powerful forces within the government which affects not just justice for post-election violence but also the Truth Commission and the implementation of the Constitution,” International Centre for Policy and Conflict executive director Ndung’u Wainaina said.

In an exclusive interview with the Sunday Nation, Mr Kilonzo, whose docket is crucial for ensuring justice to post-election violence victims, said that the new laws would strengthen the Judiciary and police to deal with the chaos that left 1,133 people dead and more than 600,000 uprooted from their homes.

Kenya National Commission on Human Rights commissioner Hassan Omar said the statement raised questions over the government’s commitment to the ICC process, just weeks after it attracted local and international uproar by inviting wanted Sudan President Omar al-Bashir to attend the promulgation of the new Constitution.

Mr Omar said that Mr Kilonzo’s remarks symbolise the government’s slow diversion from respecting and cooperating with the court as political re-alignments emerge ahead of 2012 elections.

He said it will take two to three years before the Constitution starts functioning well, a thing that if relied on, could delay justice to victims and perpetrators of the violence.

“There’s absolutely no basis for substituting the ICC with the new Constitution. The process must go on,” Mr Omar said.

The KNCHR Number Two said it is almost three years since the killings occurred and that it was important that the efforts to attain justice be speeded up.

Nominated MP George Nyamweya said Mr Kilonzo could be right because the country needed to reconcile and find its own solutions to local problems.

He, however, said it is up to the whole country or the coalition government to decide and make it clear whether it wants to proceed with the ICC process.

Mr Nyamweya said the victims of the violence need to be compensated and that the incident “could not just be wished away.”

Senior counsel Kamau Kuria said Mr Kilonzo’s call “is right in principle but premature.”

“I disagree with his apparent view that the fight against impunity in our justice system, which Mr Moreno-Ocampo is spearheading, should wait until the new Constitution is fully implemented. I agree with the view that Moreno-Ocampo should hand over his task to us as soon as we are ready to do it,” Mr Kuria said.

source: The Daily Nation

A Cabinet Minister has launched a controversial campaign to stop the International Criminal Court from investigating and prosecuting post-election violence suspects.

Lawyer Mutula Kilonzo, who holds the Justice portfolio, claims that trial sought by the ICC chief prosecutor Moreno-Ocampo after he completes investigations in the next few weeks will be unnecessary when Kenya establishes a new judiciary, appoints an inspector-general of police, and installs a new director of public prosecution under the new Constitution.

The minister, whose docket is crucial to obtaining justice for the victims of the violence that broke out after the 2007 General Election, argued: “When these (appointments) are in place, we can say that Kenyan judges meet the best international standards. After that, I can even tell them not to admit the ICC case. Why on earth should a Kenyan go to The Hague?”

But the Minister’s proposal, raised in an interview with the Sunday Nation, drew immediate opposition from the Law Society of Kenya and Government Chief Whip Jakoyo Midiwo.

Law Society chairman Kenneth Akide also disagreed with Mr Kilonzo, saying the new Constitution requires that Kenya respect agreements it had signed, including the Rome Statute that created the ICC.

“The ICC has not been replaced because of the new Constitution,” Mr Akide told the Sunday Nation by phone from China.

He said the judiciary and police were yet to be transformed to effectively deal with post-election violence suspects. He added that, contrary to Mr Kilonzo’s assertion, the judiciary “has always existed, but the country sought ICC intervention because of lack of political will to prosecute the suspects.”

In an exclusive interview, Mr Kilonzo said the administrators of the Hague-based court should know that Kenya now has a “new prosecutorial system and a new police under a new Constitution.

“I’m totally convinced. One million per cent convinced. The case before the ICC has not yet been admitted. It can only be admitted after (ICC chief prosecutor Luis Moreno) Ocampo finishes his investigation.

“I advocate a local tribunal partly because I’m a Kenyan, and I cannot entertain the idea of a foreign court having to investigate a fellow citizen on offences committed against fellow citizens,” Mr Kilonzo said.

“Under Articles 2, 4, and 5 of the new Constitution, we can now tell the world:  If we appoint a new director of public prosecution, a new broom will sweep clean,” he said.

He said the Bill on vetting sitting judges and recruiting new ones, which would also look at “their temperament, their history and everything else”, was in place.

Mr Kilonzo, who has been at the forefront of pushing for the prosecution of post-election violence suspects, said the panel conducting the vetting of judges could have access to advice from intelligence services, the police, the office of the Attorney-General, and the Advocates Complaints Commission.

An ICC delegation is expected in the country next week. Mr Kilonzo’s comments come at a time when a more robust ICC process is at play as Mr Moreno-Ocampo appears keen to complete his investigations of key post-election violence suspects by the end of the year.

He is expected in the country in the next few weeks to bolster the ICC investigations. The ICC process was for some time overshadowed by the August 4 referendum, but it is now in high gear after the signing two weeks ago of an agreement to allow the court to set up an office in Kenya.

A section of the Cabinet is unenthusiastic about the ICC, while other ministers are pushing for charges against perpetrators of the violence that left 1,133 people dead.

The ICC’s actions could dramatically affect the country’s political scene as some of those mentioned in connection with the violence harbour plans to run in the 2012 General Election.

Mr Kilonzo said potential witnesses have been given protection in several places, but any trials could be carried out locally.

“My challenge to Kenya is this: You gave yourselves a beautiful gift on August 27. Give yourselves another one by telling the world through the institutions that we created to keep off,” Mr Kilonzo said.

The minister said he was personally unhappy with the way the country had dealt with the thousands of Internally Displaced Persons and that he would have liked a special division of the High Court to deal with the matter.

“Ocampo and ICC cannot solve that. It’s a Kenyan issue,” he said.

Mr Kilonzo has twice presented a Bill to the Cabinet to establish a special tribunal to deal with post-election violence cases, but it was not approved.

Another effort to establish a local tribunal in Parliament was similarly defeated, opening the way for the International Criminal Court to step in.

Having served on the National Dialogue and Reconciliation Commission, popularly known as the Serena Team, Mr Kilonzo also expressed concern that some politicians had rushed to announce their interest in senate seats and governorships “without realising that a huge number of Kenyans are living in deplorable conditions”.

Mr Midiwo said victims of post-election violence want resettlement and justice.

“The ICC was not coming here to force us to do a new Constitution. It came because the government failed its people. What am I supposed to tell my people whose relatives were killed,’’ he said.

Mr Kilonzo’s comments are likely to rub civil society the wrong way as well as other proponents of the ICC who wanted it to speedily deal with the Kenyan case.

Kenya National Commission on Human Rights chairperson Florence Jaoko-Simbiri said the country still needs the ICC, the new Constitution notwithstanding, as Kenya is a signatory to the Rome Statute.

“The country has not only domesticated the Rome Statute; the government has also made commitments to the ICC. I don’t see how the new Constitution prevents the ICC from coming,” she said.“Judicial reforms will take a while before being enacted. It will also take time before changes in police take place to facilitate credible investigations,” Simbiri said.

Nairobi lawyer John Mureithi Waiganjo said the government was mandated to cooperate with the ICC.

“The ICC has to continue with investigations and prosecute the culprits. It is wrong for the minister in charge of Constitutional Affairs and Justice to relate the new Constitution to the post-election violence. It was criminal and an offence against humanity,” he said.

In February last year, Parliament shot down a government Bill to set up a local tribunal to investigate the violence. The Bill sought to entrench the tribunal in the Constitution but was supported by only 101 MPs, far short of the 145 required to amend the law.

In opposing the Bill, MPs cited a lack of confidence in the judiciary and the potential danger that a local tribunal could spark ethnic tensions.

source: The Daily Nation

Team Obama has just offered Sudan’s genocidal tyrant one last olive branch. A hickory switch might work better.

This past Tuesday, when the punditocracy was raptly focused on the electoral results in Delaware and New Hampshire, the U.S. State Department quietly issued a policy statement on Sudan that offered the government of President Omar Hassan al-Bashir a path to escape sanctions and restore normal relations with the United States.

Why no fanfare? Perhaps an administration highly sensitive to accusations of equivocation in the face of evil was reluctant to call attention to a policy that emphasized carrots rather than sticks—or rather, to use the splendidly mangled metaphor of one administration official, offered to the regime in Khartoum “a carrot painted with a finer degree of granularity.” Bashir, who has been indicted on genocide charges by the International Criminal Court, doesn’t deserve a carrot. But the Obama administration has rightly concluded that absent strong inducements, deserved or not, from the United States and other key actors, the regime in Khartoum could well plunge Sudan back into a horrendous civil war.

In January 2005, the regime and the breakaway government of the south put an end to almost 40 years of war by signing the Comprehensive Peace Agreement. The CPA gave southerners the right to choose independence or greater autonomy within Sudan. The referendum in which they will make that choice is scheduled for Jan. 10, 2011, and no one doubts that voters will overwhelmingly choose the former—if the referendum is held, and conducted honestly. But Khartoum appears to have no intention of permitting that. Oil has turned Sudan into a boom economy, and 80 percent of the country’s oil is located in the south. Moreover, the regime fears—with good reason—that granting independence to the South would embolden other regional insurgencies.

Suliman Baldo, a Sudanese scholar with the International Center on Transitional Justice, says that the Bashir government has been orchestrating a domestic media campaign to promote the fiction that all Sudanese seek national unity—and thus that a vote for independence is intrinsically illegitimate. Baldo and others fear that if Khartoum blocks or refuses to recognize the election, provoking the government of the South to unilaterally declare independence, the decades-long civil war that led to the deaths of two million people will resume.

The Obama administration has responded to this apocalyptic prospect with a belated, but very concentrated, diplomatic surge. Both Secretary of State Hillary Clinton and National Security Advisor James Jones have spoken with Salva Kiir, the southern leader, and Ali Osman Taha, Sudan’s vice president, urging them to make progress on the terms laid out in the CPA, which they have so far failed to do. President Obama announced last week that he would personally attend a U.N. Security Council session on Sudan chaired by Secretary-General Ban Ki-moon during the upcoming General Assembly meeting; that in turn has persuaded other heads of state, as well as Kiir and Taha, to attend. The administration has beefed up its diplomatic representation in Sudan, in part by naming Princeton Lyman, a veteran diplomat with long experience in Africa, to work with the two sides. And last weekend Scott Gration, Obama’s special envoy to Sudan, went to Khartoum to deliver the administration’s new offer.

That offer is at the heart of the strategy document released earlier this week. Gration presented the regime with four ascending “stages” of granularized carrot. The administration will immediately change the rules governing the export of agricultural equipment to Sudan, now tightly controlled by sanctions. “Previously there had been an assumption of no,” a White House official explained to me. “Now we’re going to shift to an assumption of yes.” This is, in effect, a gift for showing up—no strings attached. If the regime permits the referendum to proceed and respects the outcome, the White House will lift further trade restrictions (though not on the all-important oil sector). If Khartoum also reaches agreement on key North-South issues, including the drawing of boundaries and sharing of oil revenue, Washington will appoint an ambassador (the last ambassador, Timothy Michael Carney, was withdrawn in 1996 after Sudan was declared a state sponsor of terrorism). Only, however, if Khartoum also resolves the Darfur conflict does the administration promise to seek full normalization and the lifting of sanctions.

Administration officials present the package as an “intensification” of existing diplomacy, but that is slightly disingenuous. After long, and reportedly heated, arguments inside the White House over the proper balance between carrot and stick, officials have produced a document that is highly specific about inducements and carefully vague about threats. Despite veiled references to “accountability,” the statement is silent on the ICC indictments. And after much discussion over whether it’s acceptable, or effective, to address the North-South conflict separately from Darfur, the administration plan will allow Khartoum to profit from compliance on North-South issues, though Bashir wins the jackpot only for restoring peace to Darfur.

Some, though not all, members of the advocacy community are appalled at the decision to, quite literally, let the regime get away with murder. John Norris, a Sudan expert at the Center for American Progress and former head of the Enough Project, calls the package “unseemly.” Norris points out that in 2005 Western diplomats made a calculated decision to bless the North-South peace agreement even as the regime perpetrated mass slaughter in Darfur. Indeed, from the very beginnings of the killings in Darfur, in 2003, Bashir responded to pressure from the West by threatening to scuttle negotiations over ending the civil war. “Once again,” Norris says, “you’ve got a bunch of diplomats saying that this current situation is so serious that we need to ignore all this other stuff.”

So there is both a moral case and a strategic case against offering Khartoum goodies in exchange for behaving itself on the referendum. But if the derailing of the referendum really would lead to mass killing (and some experts I spoke to are skeptical on this score), then it’s patent that the moral imperative is to give Bashir incentives to behave himself, and to leave the issue of just deserts to a future date. The only real question is effectiveness. A number of studies (pdf) have concluded that marginalizing Darfur to get the CPA signed was a disastrous mistake that sent Bashir a signal that he could do as he wished with the people of Darfur. Why is it correct now?

Gration was foolish enough to say earlier this year that what remained in Darfur, seven years after the killing broke out, was only “the remnants of genocide.” He was quickly forced to retract the comment in the face of outrage from activists. But he was right. Civilians in Darfur still live in a state of terror, and millions remain displaced; but much of the killing now pits rebel groups, or Arab tribesmen, against one another. On the other hand, the steadily rising levels of violence in the South, much of it probably instigated by Bashir and his colleagues, could explode into the kind of mass ethnic reprisals provoked by the partition of India and Pakistan in 1948. As a State Department official puts it delicately, “There is a sense of urgency on both Darfur and the CPA, but there is a growing sense of immediacy on North-South issues.” The situation in 2005 was the exact opposite.

That said, Bashir must be made to feel that there is a powerful, and imminent, “or else.” So far, the Obama team has hesitated to make threats. Gration in particular has been far too willing in the past to accept the regime’s bona fides, as if unaware of the bland reassurances and bald-faced lies that frustrated his predecessors. Even now, he and his team may be putting too much stock in the influence of “moderates” inside the ruling National Congress Party, whom Western officials have been banking on—fruitlessly—for years. Bashir is likely to “accept” the State Department’s proposal, and then add onerous conditions of his own. A White House official insists that the administration is prepared for that eventuality, and adds that the ability to marshal an international response in case of rejection is “a very important part of the thinking” that went into the new offer. As with Iran, that is, the regime’s rebuff of what is seen as a fair offer will help the United States build the case for tougher sanctions than those Sudan now faces.

Will Bashir be suitably impressed by that prospect? Over the years, he has blithely ignored Security Council resolutions, sanctions, threats of prosecution, and global public opprobrium. He has learned all too well how to exploit the weakness of international diplomacy. Now he holds a lit match over a vast bonfire. Perhaps he fears the consequences of flicking it on to the pyre, but the irresolute response of years past have ensured it’s his choice—and his alone.

source: Foreign Policy

WALIKALE, Congo — First the rebel soldiers told residents of the villages in the mineral-rich eastern Congo not to worry. They were just there for a rest and would do no harm. But as dusk fell, the fighters encircled five villages simultaneously, and the gang rapes began.
Six or seven men lined up to take their turn. The victims ranged from a month-old baby boy to a 110-year-old great-great-grandmother.
They forced husbands and children to watch as they gang-raped the villagers for four days. Some victims told doctors the fighters raped them with their fists, saying “We’re looking for the gold.”
It took days for help to arrive, even though the villages are 12 miles (20 kilometers) from a camp of U.N. peacekeepers from India. The U.N. says the peacekeepers actually drove through one of the villages while it was being held by the fighters, but said peacekeepers took no action because no one told them what was going on.
Violence is reaching new levels of savagery and spiraling out of control in this corner of Congo, where the competition for control of mineral resources has drawn in several armed groups, including the Congolese army. Rape has become a military strategy by the various groups of fighters to intimidate, punish and control the population in the mining areas.
News of the most brutal gang rapes in eastern Congo came in August, bringing international outrage. The U.N. said more than 500 women were raped in that period, and Buna Altunbas, a regional director for Doctors Without Borders, said some Congolese women have been raped repeatedly.
The victims from the five villages near Walikale alone number about 250, with more coming for treatment this week, said Dr. Chris Baguma of Los Angeles-based International Medical Corps, and he expects the toll to rise. Some have infections resistant to antibiotics, he said. At the local hospital, there are no kits to test for HIV.
“I have seen many, many cases of rapes and many cases of medical emergencies, but I have never seen anything so planned, so systematic, so animalistic,” Baguma said.
No one was killed in the attack and the villages are so poor that there is little to loot, leaving people to conclude that the rapes, and forcing families to watch, was some form of punishment — for what no one is sure.
A nurse whose responsibility included three of the villages showed an Associated Press reporter a list with names of 124 victims and pointed to those he said were the mother, wife, two sisters and three cousins of the militia commander whose fighters allegedly were among the attackers.
Victims told doctors they were attacked by a mixed group of fighters: members of the local Mai-Mai militia led by a man who calls himself Commander Cheka; Rwandan Hutu rebels led by perpetrators of that neighboring country’s 1994 genocide; and some former fighters of a Congolese Tutsi rebellion that professed itself a sworn enemy of the Rwandan rebels.
Cheka denied that his fighters were involved. In an interview with Radio Kivu Un, he blamed the Rwandan rebels and denied they were allies. It’s unclear if that statement might have come after he learned that his family also was raped.
Last week, President Joseph Kabila banned all mining in three eastern provinces, saying he was trying to halt violence such as the gang rapes near Walikale.
But the move appeared aimed more at reigning in officers who have been profiting from the mines despite previous commands to stop.
At Bisie, Congo’s biggest tin mine at the top of a mountain near Walikale, thousands of civilians are obeying Kabila’s decree and have halted their illegal digging. Workers have been streaming down the mountain this week. They complain, however, that the soldiers are still exploiting the mine.
It’s not clear whether Kabila’s government can control even its own military commanders and soldiers, who were hastily cobbled together from numerous rebel groups and militias. Lines of command are murky. Some soldiers pay allegiance to one commander only. Officers from one former rebel group disobey higher-ranking officers who previously fought for a different group.
Greed that plunged this nation of 48 million into back-to-back civil and regional wars now threatens to fracture the army and escalate the low-level conflict.
This week, Kabila sent Brig. Gen. Bosco Ntaganda, a former commander of a Tutsi-led rebellion in eastern Congo in 2008, to enforce his mining ban.
Ntaganda came to Walikale as hundreds of troops moved into the remote region for an offensive to rid the area of Rwandan-led rebels grouped under the banner of the Democratic Front for the Liberation of Rwanda, or FDLR.
Gen. Didier Etumba, the army chief of staff, arrived Tuesday in Walikale and threatened to post elsewhere those commanders who are enriching themselves from the mines, according to two witnesses who spoke on condition of anonymity for fear of repercussion.
Walikale residents hope Etumba carries out his threat.
“We wrote to the president months ago demanding that he withdraw ... commanders who are known to have brutalized our people, who now are here supposedly to protect us but who instead are interested only in getting rich off our mines,” said Charles Masudi Kissa, head of the Civil Association of Walikale region.
Resentment has been growing that rebels of the former Tutsi-led People’s National Congress, known by its French acronym CNDP, have used their 18-month integration into the national army to expand their influence and take over productive mines. They make up 70 percent of the armed forces in eastern Congo.
Ntaganda is wanted by the International Criminal Court for war crimes, including the ethnic massacre of civilians in 2002 and forcing children to fight. Congo’s government says it won’t arrest Ntaganda in the greater interest of keeping peace.
In Walikale, opinion is divided about the mining ban. Some want the mine shut, seeing it as the source of evil, so that the people will focus on neglected agriculture. Others would like to see proper roads built, providing easy access to the mineral wealth. Still others simply want law and order.
Kabila’s ban came as the prime minister announced Thursday that Congo’s economy will expand by a better-than-projected 6.1 percent, largely on the back of tin prices that increased by nearly 40 percent this year. Congo is Africa’s largest tin producer.
Bisie is Congo’s largest mine of cassiterite, a tin product. Porters walk for two days down the mountain to deliver 50-kilogram (110-pound) sacks of the red and brown mineral. Prices in the nearby village of Ndjingala dropped this week from $5.60 for a kilogram (2.2 pounds) to $3 following the ban, complained Jean-Marie Rugamika Chika, local secretary of the Mineral Exploiters’ Association. The price has fallen in part because those who plan to abandon the mine want to see a quick sale of their product.
“Who is this ban serving?” complained Gertrude Matondo, who had just arrived in Ndjingala from the “hole” she and her husband mine in Bisie. “The soldiers are still there, exploiting. Only we, the ordinary people, are suffering.” She said armed bandits had attacked her Wednesday, stealing $300 and all her belongings.
As in all of Congo’s conflicts, it’s the civilians who are killed and driven from their homes, while military casualties are negligible.
“We fear that this latest offensive will follow the pattern of previous military actions,” Masudi said. “Both the rebels and the army will punish civilians brutally, but there will be little real fighting.”
The village of Luvungi, in the area where Cheka’s family was raped, is a good example. When soldiers moved in there during October 2009, Cheka’s fighters disappeared and the soldiers burned down 20 huts of families they accused of supporting the enemy. This year, the villagers were brutalized and their homes were pillaged by Cheka’s returning fighters and their allies.

source: The Associated Press

The International Criminal Court is consolidating its local mission with a planned meeting with top provincial administrators, next week.

The meeting with Provincial Commissioners in their capacities as heads of regional security units comes ahead of next month’s pre-planned visit by ICC Chief Prosecutor Luis-Moreno-Ocampo.

ICC’s interest in 2007 post-election violence is anchored by Ocampo’s vow he would make Kenya an example to the world on how to deal with impunity.

“They want to interview PCs from affected areas and those in areas that were not hit by violence as part of their evidence building,” said a Government source familiar with the visit, but who cannot be quoted due to the sensitivity of the investigations.

On Thursday, sources at the Ministry of Justice had earlier told The Standard the issuance of warrants of arrest for the two could follow in December, if they refuse to comply with court summons. “Trials will be on early 2011 because Moreno-Ocampo will be through and will most likely be ready to proceed by Christmas,” said the source.

News of the visit requested through and granted by Internal Security Minister George Saitoti, broke along with the report that 13 potential ICC witnesses have secretly been flown out of the country for their own safety.

flown out

They include a human rights activist in Eldoret who facilitated the tour of 2008 violence hotspots by UN Rapporteur on extra-judicial killings and arbitrary arrests Prof Philip Alston.

These are further signs that ICC, which signed an all-access and diplomatic co-operation agreement with a sub-committee of Cabinet on post-election violence-related issues on September 3, is rolling full steam on Kenya’s case.

A fortnight ago, the ICC Registrar Silvana Arbia, who prosecuted The Hague trials on Rwanda’s genocide, was in the country to set up the policy and administrative pillars for Moreno-Ocampo’s investigation team.

Ms Arbia, who is the ICC signatory to the agreement with Saitoti’s office, secured guarantees that Moreno-Ocampo’s team would be allowed to set up local offices; move freely; hoist its flag in the country; enjoy diplomatic immunity and top-level Government security; and travel around with their arms.

The agreement, upon which Saitoti promised full co-operation by the Government, also guarantees ICC diplomatic privileges such as entering the country without Visa fees.

“With the exchange of letters (agreement), the operation of our legal framework in Kenya is in place,’’ said Arbia. Her visit coincided with reports ICC will, in the next few days, announce indictment of two prominent suspects.

She revealed ICC had 400 cases on post-election violence triggered by release of disputed presidential election results.
It is believed the meeting between ICC and PCs is aimed at securing specific guarantees on the security of its staff and support in mobilisation of witnesses, among other logistics. They are also believed to be seeking to use the forum to gauge the mood in the flashpoints; agree on a working arrangement; and confirmation the promise of co-operation given by President Kibaki and Prime Minister Raila Odinga was passed down the chain of command.

warrant of arrest

Even though Kenya had on August 4 hosted and let go Sudanese President Omar al Bashir, against whom ICC has a warrant of arrest, Saitoti told the country last month the Government had forwarded all necessary documents requested by the ICC.

“The Government has given the ICC all the documents they require in investigating of the cases,” said Saitoti. ICC’s request to interview the PCs is being facilitated by the Ministry of Internal Security.

It is believed the removal of key witnesses in the Rift Valley and their families is aimed at protecting them. They could also be the pillars of the cases ICC is building up against some prominent Kenyans.

A human rights activist in Eldoret and three other witnesses were among those secretly flown out. It is not clear what evidence they hold, but ICC sources said thorough vetting was done to ensure only those with ‘credible evidence’ were facilitated to leave the country.

It also emerged ICC protected the witnesses locally for months at hidden locations before. “Each witness got about Sh40,000 to move house and rent a secure home together with their upkeep,” said a source.

Prof Alston, through the activist, met several victims of police and militia killings at the Eldoret Catholic Diocese where they recorded statements. “He visited his in-laws and paid dowry before he was allowed to leave with his wife and one child,” disclosed an associate.

The activist’s wife left before he resigned from a Government parastatal. “They just received a call asking them to prepare and leave the country within 24 hours. We had to organise an impromptu engagement party at his wife’s home so that he could leave with his family,” said a relative.

On Thursday, Protection International, a Belgium-based International Human Rights group, facilitated the signing of a memorandum by human rights groups involved in the Witness Protection Programme.

The 12 human rights groups spread across Rift Valley signed the Memorandum of Understanding (MoU) as a framework of engagement with ICC. The signing was done in a hotel on the outskirts of Eldoret town, away from media and public glare.

Tenets of confidentiality

The MoU, seen by The Standard, read in part: “Member organisations will observe the basic tenets of confidentiality and caution while handling issues to do with victims and witnesses or information involving perpetrators of the post-election violence”.

But Rift Valley Deputy Provincial Commissioner in charge of the Eastern Rift, Wanyama Musiambo, told The Standard he was not aware of relocation of any witness.

“Which countries have they been taken to? You seem to have more information. You know ICC does not work with us, and I do not know anything about witnesses,” he said.

“We are under strict obligation not to release information about the witnesses as it would jeopardise both the investigations and the safety of witnesses,” said Ken Wafula, executive director, Centre for Human Rights and Democracy.

More witnesses were said to be undergoing screening to verify whether their evidence is admissible. “For credible witnesses, arrangements are being made for their children to be educated in the countries they have been moved to,” said another source.

A lawyer, who worked closely with the Waki Commission on Post-Election Violence, also revealed ICC is relying on evidence gathered during the commission hearings.

source: The Standard

September 16, 2010 (KHARTOUM) – A meeting of the Arab league foreign ministers today endorsed a resolution reaffirming its position in rejecting the arrest warrant issued by the International Criminal Court (ICC) against the Sudanese president Omer Hassan Al-Bashir for war crimes and genocide allegedly committed in Darfur.

An Arab Ministerial Committee on the affairs of the Sudan expressed solidarity with Sudan and face of the ICC’s decisions and called annulling the warrants noting that Sudan is not a member of this Court.

The committee which is comprised of Egypt, Algeria, Saudi Arabia, Sudan, Libya, Qatar, Sudan, UAE, Oman and Syria slammed “attempts to politicize the principles of international justice and used in the erosion of State sovereignty , unity and stability”.

The ICC’s first-ever warrant against a sitting head of state was issued for Bashir in March 2009 on charges of war crimes and crimes against humanity. The second was issued in July 2010 on charges of genocide.

The United Nations says up to 300,000 people have died since conflict broke out in Darfur in 2003, when ethnic minority rebels took up arms against the Bashir’s Arab-dominated regime for a greater share of resources and power.

(ST)