IJCentral: International Justice Central

OTP Press Release

Today the Prosecutor of the International Criminal Court, Luis Moreno-Ocampo, requested Pre-Trial Chamber I to issue an arrest warrant against the current Sudanese Defense Minister Abdelrahim Mohamed Hussein for crimes against humanity and war crimes committed in Darfur from August 2003 to March 2004.

The evidence allowed the Office of the Prosecutor to conclude that Mr. Hussein is one of those who bears the greatest criminal responsibility for the same crimes and incidents presented in previous warrants of arrest for Ahmed Harun and Ali Kushayb issued by the Court on 27 April 2007. Mr. Hussein was then Minister for the Interior for the Government of Sudan and Special Representative of the President in Darfur, with all of the powers and responsibilities of the President. Mr. Hussein delegated some of his responsibilities to Mr. Harun, the Minister of State for the Interior, whom he appointed to head the “Darfur Security Desk.”

The crimes were perpetrated during attacks upon the towns and villages of Kodoom, Bindisi, Mukjar and Arawala in the Wadi Salih and Mukjar Localities of West Darfur. The attacks followed a common pattern: the Government of Sudan forces surrounded the villages, the Air Force dropped bombs indiscriminately and foot soldiers, including Militia/Janjaweed, killed, raped and looted the entire village, forcing the displacement of 4 million inhabitants. Currently, 2.5 million remain in camps for Internally Displaced Persons.

In the “Prosecution v. Harun & Kushayb” case, Pre-Trial Chamber I ruled that Local Security Committees coordinated these attacks. They were supervised by State Security Committees which reported to Mr. Harun, who in turn, according to the evidence, reported to Mr. Hussein. “The evidence shows that this was a state policy supervised by Mr. Hussein to ensure the coordination of attacks against civilians”, said Moreno-Ocampo.

“Moreover, the evidence shows that directly and through Mr. Harun, Mr. Hussein played a central role in coordinating the crimes, including in recruiting, mobilizing, funding, arming, training and the deployment of the Militia/Janjaweed as part of the Government of the Sudan forces, with the knowledge that these forces would commit the crimes,” said the Prosecutor.

The Prosecutor considered that Mr. Hussein should be arrested in order to prevent him from continuing with the commission of crimes within the jurisdiction of the Court.
After careful consideration, the Office of the Prosecutor has decided to publicly seek a warrant against Mr. Hussein to encourage further public focus on Government of the Sudan policy and actions, and promote cooperation in taking action to arrest Mr. Hussein and the 3 other individuals subject to ICC warrants, as established by UN Security Council Resolution 1593 (2005).

The Prosecutor emphasized that Mr. Hussein is presumed innocent and will be given full rights and the opportunity to defend himself. Pre-Trial Chamber I will review the evidence and make a decision on the Prosecution’s request.
This is the fourth case of the International Criminal Court in Darfur. To date, ICC judges have issued arrest warrants against Ahmad Harun and Ali Kushayb - for crimes against humanity and war crimes; warrants of arrest against Omar Al-Bashir for genocide, crimes against humanity and war crimes; and summonses to appear for rebel leaders Abdallah Banda, Saleh Jerbo and Abu Garda for war crimes.

The Prosecutor will brief the United Nations Security Council on the situation in Darfur on 15 December 2011 at UN Headquarters.

An African Prosecutor, Africa cases, but still an international court.

It was announced this week that Ms. Fatou Bensouda, the current Deputy Prosecutor at the ICC, has been selected to become the next chief Prosecutor and will be sworn in next summer. Although the member states of the Assembly of States Parties (ASP) have come to an informal consensus agreement on Ms. Fatou Bensouda, the official announcement will not be made until December 12th when the ASP meets at the United Nations.

Bensouda’s succession will mark the end of Luis Moreno-Ocampo’s nine-year term as the first Prosecutor of the ICC. Moreno-Ocampo has presided over cases in Uganda, Central African Republic, Democratic Republic of Congo, Kenya, Ivory Coast, and Libya. He has also lead preliminary investigations in a number of other countries across the globe, from Afghanistan to Colombia. A verdict is expected in the trial of Thomas Lubanga Dyilo before the end of Ocampo’s term, which will be a landmark in international justice and the first verdict to be given since the Court’s formation in 2002. Bensouda, as Moreno-Ocampo’s deputy throughout his term, has been involved with all on going trials at The Hague, and is uniquely positioned to continue the current cases to their completion.

Bensouda, a Gambian lawyer, has had a remarkable career to date. She became the first female Attorney General in Africa, and is widely admired on the continent. Getting the support of the African member states of the ICC, which form the largest regional voting block, was integral to her successful bid for the position of Prosecutor. The question is whether the African Union will expect Bensouda to refocus the prosecutorial lens away from the continent once she begins her term.

The African Union has been outspoken in its claims that the ICC is unjustly targeting Africa, and will surely see the election of an African as Prosecutor as an opportunity to affect this perceived imbalance. However, Bensouda’s proven track record of impartiality, strength of belief in the ICC system and in the rights of the victims, is bound to make any such hopes to bully the new prosecutor entirely futile. We expect Bensouda to treat each new case as she sees it according to the evidence, the law, and the limits of her jurisdiction. That Bensouda is African will make little, if any difference, to her judgement on these facts. The institution of the ICC and what it represents is bigger than the nationality or personality of its Prosecutor. Naturally, her effectiveness will depend on a number of factors, which will include the political climate in the international community over her nine-year term, but one thing is sure, Bensouda will be serving the cause of justice, not the political will of the Africa Union, or the US and Europe. At least that is our profound hope here at IJCentral.

U.S. Support for budding democracies in the Middle East

As the Arab Spring movement has unfolded in the MENA region, U.S. president Barack Obama has slowly but steadily supported the democratic uprisings and denounced military action taken against them. Obama delivered a determined albeit late announcement of his support for the revolutions in Egypt and in Libya, and we have seen the U.S. go so far as to provide military forces to NATO to help topple Qaddafi’s regime. The U.S. has also tried to, in facing opposition from other U.N. Security Council member states, push for sanctions against Syria’s authoritarian leader, Bashar Al-Assad.

While the U.S. has been on the supporting side for international democracy and social justice movements, it has not perfectly stood in line with international standards in regards to human rights law. We have unfortunately seen the U.S. apply double standards when it comes to signing onto the Rome Statute, the treaty establishing the International Criminal Court (ICC) and in maintaining funds to U.N. organizations that welcome Palestine as a member state. Examining how the U.S. picks and chooses where it offers supports and where it rescinds it is interesting in trying to determine whether it is overall a truly positive force in international human rights promotion.

Double standards

Following UNESCO’s vote to approve Palestine as a full member of the organization almost one month ago, Washington withdrew funds from the U.N.’s Education, Scientific, and Cultural organization. This action agreed with U.S. legislation mandating the immediate cutoff of any U.N. organization authorizing Palestinian membership. While the U.S. has been quick to criticize other states, it simultaneously refused to take considerable action as Israel announced its plans to create thousands of new settlements in East Jerusalem, the proposed future capital of a Palestinian state. This act is a clear violation of U.N. resolution 446. How the U.S. decision in failing to support the Palestinians and to neglect condemning illegal action by the Israeli government can possibly further human rights promotion or the prospects of a two-state solution in the Palestinian-Israeli conflict is difficult to grasp. A recent NYTimes article suggests that by taking such action, the U.S. would also be putting certain of its reform programs in Iraq and Afghanistan at risk.

The U.S. has a considerable role in the U.N., sitting as one of five permanent members on the Security Council, which also consists of China, France, Russia, and the U.K. Annual estimates of U.S. funds to UNESCO is $60-80 million, which constitutes almost a forth of the organization’s annual budget. Clearly, through its administrative standing and financial support, the U.S. helps the U.N. provide humanitarian aid and intervene in international crises where deemed necessary. But this most recent case of U.S. withdrawal of funds for the interest of its own geopolitical agenda and at the sake of the interest of other U.N. member states puts into the question the genuineness of American support in international organizations. Are international organizations becoming a convenient means for the U.S. to promote its national agenda? How do U.S. leaders decide which organization to join and which to ignore, or even, condemn?

The U.S. and the ICC

Let’s examine the U.S.’s present standing with another international organization, the International Criminal Court (ICC). The U.S. was an initial signatory state to the Rome Statute in 2000 until John R. Bolton unsigned it in 2003 as undersecretary of state for arms control and international security, citing its lack of popular consensus and sovereignty. The main concern with the ICC is that it would allow foreign citizens to hold U.S. former and current government officials, employees, or military personnel responsible for crimes against humanity and war crimes committed abroad. The American judicial system is still internally regarded as supreme to any foreign or international one. The U.S. has also gone so far as to make efforts to discourage ICC members and non-members from extraditing U.S. soldiers or government officials responsible for war crimes during the Iraq invasion and other occasions to the ICC. Such a right is granted in accordance with Article 98, the provision of the Rome Statute establishing the International Criminal Court that prohibits the Court from prosecuting someone located within an ICC member state if doing so would cause the member state to violate the terms of other bilateral or multilateral treaties to which it may be a party.

The U.S.’s not being a signatory state to the ICC does not always necessitate its extrication from international norms. In 1984, President Reagan complied with international law and withdrew troops from Nicaragua upon receiving condemnation by the International Court of Justice. Furthermore, American interests have not always been in opposition to those of the ICC; the U.S. recently supported the ICC’s prosecution of Sudan’s Omar Al-Bashir for mass killings in Darfur and its arrest warrants for Libya’s Muammar al-Qaddafi. These two situations exemplify a union between the promotion of human rights and justice in the Middle East and North Africa, which the U.S. makes a public effort to stand for, and ICC jurisdiction. If the interests of the U.S. and the ICC slowly begin to converge, this begs the question, what possibilities and effects on the dynamic of the ICC would arise if the U.S. were to become a state party? Perhaps the unfolding of other events in the Arab democratic uprisings will trigger further opportunities for U.S. support of the ICC, only time will tell…

Please send any observations or interesting articles to my attention at Nadine@skylightpictures.com or to our Facebook page at https://www.facebook.com/#!/TheReckoningArabic.

The International Criminal Court is attempting to make clear that its judges—not the Libyans (and not the ICC prosecutor)—will have the final say on where Saif Gaddafi will be tried:

In accordance with Resolution 1970, adopted unanimously by the United Nations Security Council on 26 February 2011, the Libyan authorities have the obligation to cooperate fully with the Court. On 5 July 2011, a request for cooperation with regard to the surrender of the suspect was notified, together with the warrant of arrest, to the Libyan authorities.

Should the Libyan authorities wish to conduct national prosecutions against the suspect, they shall submit a challenge to the admissibility of the case before Pre-Trial Chamber I, pursuant to articles 17 and 19 of the Rome Statute of the ICC. Any decision on the admissibility of a case is under the sole competence of the Judges of the ICC.

Therefore, contrary to what has been reported in the media, Pre-Trial Chamber I of the ICC remains seized of the case and the Libyan obligation to fully cooperate with the Court remains in force.

But note that the court’s statement is studiously silent on whether Libya can make that admissibility challenge while holding Saif or whether it must turn him over first.

More: If the ICC judges are looking for documentary evidence that Libya is currently unable to conduct a trial of Saif on its own, they can turn to the UN Secretary General’s new report (h/t Denis Fitzgerald):

While political prisoners held by the Qadhafi regime have been released, an estimated 7,000 detainees are currently held in prisons and makeshift detention centres, most of which are under the control of revolutionary brigades, with no access to due process in the absence of a functioning police and judiciary. Sub- Saharan Africans, in some cases accused or suspected of being mercenaries, constitute a large number of the detainees. Some detainees have reportedly been subjected to torture and ill treatment. Cases of individuals being targeted because of the colour of their skin have been reported. There have also been reports of women held in detention in the absence of female guards and under male supervision, and of children detained alongside adults.

Original article:
http://bosco.foreignpolicy.com/posts/2011/11/28/the_judges_strike_back?utm_source=dlvr.it&utm_medium=twitter?page=full

by Kevin Jon Heller

The ICC has announced that the Assembly of States Parties has eliminated Andrew Cayley and Robert Petit from consideration as Moreno-Ocampo’s replacement:

The Assembly of States Parties of the International Criminal Court (“the Assembly”) will hold its tenth session at the United Nation Headquarters in New York from 12 to 21 December 2011.
The tenth session will be marked by elections, which will significantly change the composition of the Court. The Assembly will elect a new President of the Assembly of States Parties for the tenth to twelfth sessions (2011 – 2013). Ambassador Tiina Intelmann (Estonia), was recommended for the post by the Bureau in July. She will replace Ambassador Christian Wenaweser (Liechtenstein).

The Assembly will further elect the Prosecutor who shall hold office for a term of up to nine years and shall not be eligible for re-election. As mandated by the Rome Statute, every effort shall be made to elect the Prosecutor by consensus. The four shortlisted candidates recommended by the Prosecutor Search Committee are: Ms. Fatou Bensouda (Gambia), Mr. Andrew T. Cayley (United Kingdom), Mr. Mohamed Chande Othman (United Republic of Tanzania), and Mr. Robert Petit (Canada).

After informal consultations among States Parties, it was decided to narrow the list to two candidates: Ms. Fatou Bensouda (Gambia) and Mr. Mohamed Chande Othman (United Republic of Tanzania). At the 1 December informal consultations, to be held in New York, States Parties will see if there is consensus on one candidate.

I am surprised that Cayley was eliminated — I think he would have made an excellent Prosecutor.  But, of course, it was always unlikely that a non-Africa
n candidate would be elected, especially when the final list included two Africans who were very well qualified for the position.

That said, I still think Fatou Bensouda is the clear choice for the next Prosecutor.  She offers the best of both worlds: an ICC insider who offers institutional continuity, which will be critical in the coming years, but has a strong, independent voice that has not been tainted by Moreno-Ocampo’s incompetent tenure.  Having spoken to numerous individuals involved in the ICC, from OTP staff to legal officers in Chambers to defense attorneys, it is clear that Bensouda was the primary reason that the OTP didn’t fall completely apart over the past eight years.

I have also had the good fortune to spend time with Bensouda over the past couple of years.  She is, to put it mildly, an incredibly impressive woman: smart, articulate, thoughtful (a welcome change from Moreno-Ocampo), and compassionate.  And her pre-ICC credentials are stellar, including significant posts at both the international level and in her native The Gambia:

Senior Legal Adviser at the International Criminal Tribunal for Rwanda (ICTR); Legal Adviser and Trial Attorney at the ICTR; Attorney General and Minister of Justice of the Republic of The Gambia; Solicitor General and Legal Secretary of the Republic of The Gambia; and Deputy Director of Public Prosecutions of the Republic of the Gambia.

Othman also has excellent credentials — although his role as Prosecutor General of the United Nations Transitional Administration in East Timor (UNTAET) has to count against him somewhat; the Special Panels for Serious Crimes were a fisaco.  But there is only one clear choice for the next Prosecutor, and that is Fatou Bensouda.
Fingers crossed.  We should know in early December.

Original article here:
http://opiniojuris.org/2011/11/29/bensouda-vs-othman-for-icc-prosecutor-and-bensouda-should-win/

On November 21, a small number of journalists at the United Nations were chosen to take part in a conference call with U.S. Permanent Representative Ambassador Susan Rice from Malta, her first stop after her a one day visit to Libya. I was one of these journalists. It was clear to me that day that the one question on everybody’s mind, was whether Seif al-Islam Qaddafi would be handed over to the International Criminal Court to face charges of committing crimes against humanity or if he would be tried by a national court in Libya and possibly face the death penalty if convicted. The ICC does not impose the death penalty, even for the worst of crimes, be it war crimes, crimes against humanity or even genocide.

During the “on the record” telephone briefing, we learned from Dr. Rice that the ICC Prosecutor Luis Moreno Ocampo would be arriving to Libya on November 22 to discuss the way forward in regard to Seif al-Islam and possibly Abdullah al-Senoussi, about whom, Dr. Rice informed us, that the reports of his capture were apparently at the time premature.

We have since learned from informed Libyan sources that Ocampo met with the chairman of the National Transitional Council, Mustafa Abdul Jalil, Libya’s interim Prime Minister Abdel-Rahim al-Keeb and finally Mohamed al-Alaqi, who at the time held the NTC justice portfolio. Our sources informed us that Ocampo soon came to realize that the Libyans are determined to hold Seif al-Islam’s trial on Libyan soil.

Ocampo, accompanied by Deputy Prosecutor Fatou Bensouda and one or two of his senior advisors, then concentrated on explaining the ICC’s procedures to the Libyan representatives, which enable high level Libyan officials to implement their plans, to try Seif al-Islam inside Libya, while respecting their obligations under international law, thus showing the world that today’s Libya is a country that respects and abides by international laws and standards.

Of course the ICC is able to try Seif al-Islam in Libya, if they so decide, with the agreement of the Libyan authorities. Article 62 of the Rome Statute allows the court to decide on another venue for holding a trial. The article states that the venue of a trial shall be the seat of the Court, unless otherwise decided. I am sure that we all agree that the most important aspect to consider is that justice is served and seen to be served, regardless of the trial’s location, be it Tripoli or The Hague.

Needless to say that there are many international human rights organizations that argue against holding any trials inside Libya for Seif al-Islam or for that matter Senoussi and others, arguing that the accused will not have fair trials in Libya. Add to that the refusal of nearly all international human rights organizations to accept the imposition and implementation of the death penalty, regardless of the crime.

Nevertheless, the Rome Statute is based on the principle of the ICC being complementary to national criminal jurisdictions, something that is stated clearly in Article 1 of the Rome Statute, the treaty by which the ICC was established. This simply means that national courts have precedence over the ICC to conduct trials for a national or for an individual over whom they have jurisdiction, unless the State concerned is “unwilling” or “unable” to genuinely to carry out the investigation or prosecution (Article 17, paragraph (a) of the Rome statute).

The phrase “unwilling” means that the state would conduct the trial, only to shield the accused from justice, which is definitely not the case here. The phrase “unwilling” also includes any unreasonable delay, like for example in waiting for ever and ever to try the accused, which is also not the case here. Actually I expect the Libyans to get very active and conduct a first hearing of the charges by the end of the year. They might even conduct it by mid- December, knowing that the ICC judges will begin year-end judicial recess on December 16. Under “unwilling”, the Libyan national authorities must also demonstrate that they will not practice any unfair procedures that may infringe on the right of the accused and due process.

As for the phrase “unable”, it means that the national authority has no national judicial system or that the judicial system has totally or substantially collapsed. “Unable” can also mean that the judicial system is unable to obtain the accused or the necessary evidence.

Now that the ICC has issued, in June of this year, arrest warrants against Seif Al-Islam and Senoussi, the Libyan authorities will have to convince the Pre-Trial judges that the arrest warrants are inadmissible since the Libyan state is “willing” and “able” now to try the two accused. There is no reason to doubt that they are not willing and able, right from the outset. But this is a process and not a yes/no question. The Libyan government will have to agree to send a delegation to The Hague to demonstrate to the Pre-Trial Chamber headed by Judge Sanji Mmasenono Monageng of Botswana, that their judicial system will follow fair procedures and that their government will undertake to stay engaged with these judges, updating them on the process as necessary as the trial progresses. In short “the end of the process” is what matters and not “its beginning”, according to a well-placed ICC source.

The Libyan government will have to hold the trials on the same charges that Seif al-Islam was accused of by the ICC in June, namely committing crimes against humanity. Even though the Libyan penal code may not include crimes against humanity, it could be argued that prosecuting Seif al-Islam for the crimes of murder, torture and so forth could be a sufficient substitute for prosecuting crimes against humanity. It could be argued as well that the Libyans could prosecute Seif al-Islam for crimes against humanity under customary international law, even if crimes against humanity are not on the national books. The Libyans can also add other charges to the list of international charges against Seif al-Islam and try him for them.

There is little reason to think that the judges would not approve the Libyan request, but it is a decision for them and them alone. In 2010 the Kenyan government tried the same tactic of the “admissibility challenge”, but was defeated when the Pre-Trial Judges refused their request, considering it far from being a serious request, and insisted on the ICC trying the accused. However in the case of this potential challenge from the Libyan government, once presented, it is hard to envisage that the Pre-Trial Judges would reject it. Indeed it could be the first successful challenge to ICC jurisdiction based on “admissibility”.

During his visit to Libya, ICC Prosecutor Ocampo did say that Seif al-Islam could potentially be tried in Libya. “They want to show the world that this is a serious country with smart people and they can do a good job. It’s an issue of national pride. I think you should not distrust them so easily,” he added.

Indeed it is a matter of national pride, but add to that the Libyan new government wants to be seen by the international community as a fair and capable government, worthy of conducting fair and just trials for Seif al-Islam, Sanoussi and others, especially given that there are others for whom Tripoli has already issued arrest warrants and who are sheltering, for the time being, in neighboring countries, such as Saadi Qaddafi who was granted asylum in Niger.

The Libyans wish neither to be seen as a vengeful government nor as a government that outsources one of the biggest challenges to the Libyan justice system to an outside supplier, albeit one as independent and impartial as the International Criminal Court. How they maintain this balance and whether they are up to this challenge, remains to be seen.

(The writer is New York and United Nations Bureau Chief of Al Arabiya. He can be reached at talal.alhaj@mbc.net). Read original article here.

From Wronging Rights

There is SO MUCH international criminal law news right now, you guys. Case 002 opened at the Khmer Rouge Tribunal (more on that later), Bangladesh began a trial for atrocities committed during its independence fight, and George W. Bush and Tony Blair were found guilty of war crimes by a “Let’s Play Make Believe” tribunal in Malaysia.

But the biggest story is that Saif al-Islam Gaddafi and Abdullah al-Senussi, both the subject of ICC warrants on crimes against humanity charges, were captured in Libya this weekend. The Libyan authorities have expressed a very strong desire to try Saif themselves and a reluctance to hand him over to the ICC, so ICC Chief Prosecutor Luis Moreno-Ocampo headed down to Libya yesterday to talk things out.

As far as I can tell, it was at that point that every news media outlet in the world began misreporting the story. So, uh, note to Al Jazeera, The Guardian, MSNBC, Voice of America, and the rest of y’all: Moreno-Ocampo most certainly did not agree that the Libyans will try Saif. You know how I know this, despite my lack of a foreign correspondent on the ground in Tripoli? It’s because the Chief Prosecutor does not have the power to make that decision.

The new Libyan government is well within its rights to challenge the ICC’s jurisdiction if it wants to prosecute the crimes against humanity charges itself. And there’s a good chance they’d prevail on the challenge, given that the ICC’s jurisdiction is complementary, not universal. (This means that the court can only try cases where the relevant domestic judicial system is either “unwilling” or “unable” to prosecute.) However, the assessment of whether Libya is “able” to prosecute rests with the Pre-Trial Chamber of the ICC, not with the state itself, or with the Chief Prosecutor.

This particularly legal issue hasn’t been explored before* so the Libyan case will be an exciting (maybe just for me) opportunity to establish exactly how the ICC will handle inquiries into the ability of states to try mass atrocity cases. Specifically: Will the Pre-Trial Chamber defer to state preferences and call off ICC proceedings when states show a genuine desire to conduct trials themselves, or will it conduct an extensive analysis of judicial capacity?

I suspect the bizarre reports we’re getting that the ICC has “ruled” that the Libyans can try Saif stem from the fact that the Prosecutor has opted for the former course,** and will support Libya’s efforts to try the case. We’ll see whether the judges do likewise…

**Possibly in recognition of the fact that if Libya flat out refuses to hand Saif over, there’s not much the ICC can do…

For the first time, crimes against humanity that might have been perpetrated under the military government that ruled the country between 1973 and 1985 may be investigated. Law No. 18.831, allowing the judiciary to independently investigate these crimes, was adopted by the Uruguayan Parliament on 27 October.

Although there have already been some judicial investigations in Uruguay, the so-called 1986 “Expiry Law” prohibited the judiciary from administering justice in an autonomous manner. The peculiarity of the Uruguayan experience is that the Expiry Law has been submitted twice to a referendum. In 1989, the Uruguayans voted for the Law to remain into force. But in 2009 it didn’t get the majority of votes necessary to push for a reform to repeal it.

During the military dictatorship, human rights organisations estimate that approximately 213 people disappeared; around 6,000 were jailed as long-term political prisoners. The most common practices were tortures and the abduction of the children of political dissidents, who were later given to other families.

Uruguay, like Argentina, Brazil, Bolivia and Paraguay, was part of Plan Condor, which supported right-wing military governments in order to fight the influence of communism in South America in the ‘70’s. This regional strategy facilitated cross-border assassinations,  tortures and enforced disappearances.

The 1986 Uruguayan Expiry Law

After the return to democracy, the civil government led by President Sanguinetti, adopted in 1986 Law No. 15.848 (Ley de Caducidad de la Pretensión Punitiva del Estado), also known as the Expiry Law, granting amnesty to those responsible for human rights violations during military rule.

This Law declared the expiry of the State’s power to prosecute crimes committed before 1 March 1985 by military personnel or police forces during the de facto regime. The approval of this Act was also consistent with the policies and laws adopted by other countries in the region at the time which decided to approve Amnesty Laws fearing chaos or further threats to democracy after years of military dictatorships.

The difference against other Amnesty Acts adopted in the region is that under the Expiry Law, some cases could be opened if the President decided that investigations into cases of alleged abuses could be allowed to proceed.

But after the restoration of democracy, many cases were blocked, without the right to appeal. This power granted to the Executive is in direct contravention to the Uruguayan Constitution and International Human Rights Law, which embodies the separation of powers. Despite the peculiarities of the Expiry Law, de facto President Bordaberry (1973-1976), and President Alvarez (1981-1985) have been prosecuted and convicted for crimes that were not covered by the amnesty.

President Mujica, a former Tupamaro leader who was tortured and served in prison for a long term during the military regime, had previously argued publicly against scrapping the amnesty, pointing to the referendum results. Nevertheless, before the vote in Parliament, amnesty supporters and members of the Armed Forces claimed they would seek prosecution of former guerrillas, especially Tupamaros.

Revoking the Expiry Act

Uruguay’s Expiry Act violated not only the Constitution, but international human rights principles and treaties, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the American Convention of Human Rights, and the Inter-American Convention to Prevent and Punish Torture. It also violates rulings by the Inter-American Court of Human Rights which are binding and final. Even the Uruguayan Supreme Court ruled on several occasions on the unconstitional character of the Act.
In 2006, President Tabaré Vázquez allowed an investigation into the crimes perpetrated under the military regime. Earlier this year, President Mujica, using the powers granted under the Expiry Act, decided to reopen 88 cases of human rights abuses.

Turning point

However, the decisive turning point came in February, when the Inter-American Court of Human Rights in the Gelman Case, determined that the 1986 Expiry Law had no legal effectvis-à-vis the American Convention on Human Rights, ordering Uruguayan authorities to strike down any internal measures that could represent an obstacle to investigate and prosecute those responsible for crimes against humanity, especially enforced disappearances.

The adoption of Law No. 18.831 represents a major change in the national prosecution of crimes against humanity in Uruguay. For the first time, the judiciary is in charge of leading these proceedings, leaving all political considerations aside. Due to the fact that only those cases considered as crimes against humanity can be reopened, no statutory limitations or other measures that may halt proceedings are applicable.

Families of the victims are celebrating the adoption of this law as one step closer to knowing the truth about their loved ones. This new development in Uruguay shows that despite the challenges and limitations - the constitutional standing of human rights treaties, the rulings of the Inter-American Court and its interpretation by national courts - can bring about positive change and consolidate the rule of law.

—-

Mariana Rodriguez Pareja is a Communications Expert and Human Rights Advocat- based in Buenos Aires. Twitter: @maritaerrepe

Salvador Herencia Carrasco. LL.M. University of Ottawa, Legal adviser of the Andean Commission of Jurists, based in Lima.

Originally published by Radio Netherlands. View the original post here.

by Julian Ku

Reports are a little uncertain, but it sounds like Libya will not comply with the ICC Prosecutors’ arrest warrant and turn over Muammar Qaddafi’s son Seif al-Islam el-Qaddafi.

ZINTAN, Libya (AP) – Libya’s new leaders said Sunday they will try Moammar Gadhafi‘s son at home and not hand him over to the International Criminal Court where he’s charged with crimes against humanity. The government also announced the capture of the toppled regime’s intelligence minister, who is also wanted by the court.

As I suggested in an earlier post, Libya does have an obligation under UNSC Res. 1970 to cooperate with the ICC Prosecutor, and this obligation probably includes the obligation to turn over alleged war criminals.  To be sure, Libya might be able to avoid the obligation to surrender Seif Qaddafi if it tries Seif Qaddafi itself, which it says it is planning to do. But there is a good argument that it has to turn him over first, and then file a challenge to the admissibility of the case on the grounds that it is now willing and able to try Seif Qaddafi himself. This is a procedural point, but an important one. And since Libya apparently has no real court system, there is little chance of them getting him back once they turn him over. So it is not surprising they will hold on to their prisoner, and start the bargaining process with the ICC and the UNSC.

Original article here.

As 2011 nears its end, the U.S. plan to withdraw troops from Iraq is being instated. The 2003 invasion and occupation, implemented under false claims that Iraq held “weapons of mass destruction” and termed “Operation Iraqi Freedom” is finally coming to an end. Ostensibly, Iraqis should by now be enjoying their freedom, their decentralized neoliberal economy, and the reconstruction policies that have been put in place by the transitional government. The U.S mission is over, but the entire country has been deinstitutionalized, sectarian violence has been exacerbated, and cities like Fallujah still face the possible consequences of radioactive weapons used in 2004 and the grave aftermath of human rights violations by the U.S. military.

The Iraqi nation has been subjected to years of sanctions that started even before the invasion in 2003. The sanctions where initially justified upon claims that Saddam was building nuclear weapons and were supposed to target Iraqi infrastructure to encourage the Iraqi population to push for regime change. When this failed, the U.S. took action into its own hands, in 2003 invading the country and capturing Saddam. The former dictator’s downfall, while ending years of brutality, was not an organic movement and only foreshadowed the problems to ensue with the introduction of “freedom” from abroad. It is important to note that the iconic destruction of Saddam’s statue was actually carried out by American soldiers, an image in stark contrast with the effacing of Mubarak’s portraits from all public spheres in Egypt and the Libyan physical rejection of Qaddafi’s green flag.

The issue of U.S. and NATO intervention is hard to tackle. On the one hand, the intervention was legal, based on the unanimous UN Security Council resolution 1973 to implement a no-fly zone and inhibit the aerial attacks by Qaddafi’s regime. It is claimed that such action helped speed up the Libyan democratic movement. On the other hand, the intervention did not leave Libya unscarred: thousands have been killed by NATO airstrikes, and now the country is dealing with battles between the revolutionary and pro-regime forces. Hilary Clinton’s take on the U.S.’s involvement (upon receiving news of Qaddafi’s death by an aide between formal interviews) was “We came, we saw, he died”. This unofficial statement reveals the dangers of the imperial approach taken by a democratic nation like the U.S.

For almost a decade now, language and connotations of freedom used by the American media have tried to portray the Iraq war as positively as possible, in order to justify and necessitate the U.S.’s presence on the ground. But the U.S. occupation was perhaps most memorably rejected when an Iraqi journalist hurled his shoe at George W. Bush in 2008. “This is from the widows, the orphans and those who were killed in Iraq,” the journalist, Muntadhar Al Zeidi, announced.  While this effort portrays an utter rejection of the U.S. invasion and then reform policy (across the Arab world, the sole of a shoe, when not being used for its primary purpose, symbolizes a downright insult), Bush nonchalantly claimed that such behavior was an indication of one’s freedom of expression under a “free society”. This was an effort, once again, to achieve a positive portrayal of U.S. involvement.

Where the toppling of Saddam differs from the most recent uprisings in Egypt or Tunisia is that it was imposed from outside. Along with the Iraqi coup came the installment of neoliberal economic policies and a U.N. food-for-oil programme meant to fund humanitarian aid but which essentially inhibited local economic growth by imposing the sale of foreign products and which also saw an inadequate response to civilian deaths, famine, and medical needs. In The Forever War by former NYTimes reporter and current writer for the New Yorker, Dexter Filkins, a scene of the wreckage of a U.S. army-built park in Iraq is yet another symbol of the rejection of U.S. imposed forms of freedom, for what significance does a plot of grass and a few benches have in the midst of the reality of an entire country that has faced hundreds of thousands of deaths, a certain passivity on the part of the international world, infrastructural depletion, and humiliation? While the “forever war” in Iraq is now seemingly coming to close, an entire chapter dealing with the war’s aftermath will be the sole burden of the Iraqi people for years to come.

As the Arab democratic movements continue, it is important not to neglect Iraq in the regional movement toward social equality and human rights. In some Arab countries, we have seen protestors chant for Palestine, and in Egypt, citizens stormed the Israeli embassy to show their disapproval of Israel’s policies. Because the U.S’s eight-year occupation of Iraq has not been able to achieve justice in Iraq, it is important to bring Iraq back into the larger picture of the regional struggle to oust dictatorial regimes. It is our duty not to put this episode behind us and instead to become aware of the extent of the devastation of war in Iraq in order to move beyond the current state of despair.

Suggested Reading:
Dexter Filkins, The Forever War
Sponeck et al, Reforming UN sanctions in the shade of Iraq: Targeting regimes, sparing civilians, International Journal of Contemporary Iraqi Studies

Suggested Films:
Fallujah: A Lost Generation
Fallujah, The Hidden Massacre