IJCentral: International Justice Central

The expedited decline of Muammar al-Qadaffi’s regime in Libya has turned the international community’s gaze to the reconstruction of the failed Libyan state. Four decades of autocratic rule have undermined the foundations of Libya’s political economy, including basic institutions of governance, economic development, and the rule of law. The Transitional National Council (TNC) has made encouraging progress in the past several days, prioritizing democratization processes, constitutional development, and strengthened water and medical distribution networks.

The post-conflict reconstruction process has reignited an essential debate among transitional justice advocates: Do international criminal prosecutions foster peace or justice? For the indictment’s detractors, the Tripoli Three’s indictment will only serve to prolong waning tensions between Qadaffi loyalists and rebel forces, as the looming ICC arrest warrant gives the former dictator little incentive to surrender. However, this perspective fails to account for the long-term benefits of international criminal prosecutions in post-conflict situations and the ICC’s role in crafting a path for the rule of law and institutional development in post-conflict Libya.

Despite the TNC’s initial progress on democratization and basic provision distribution, the institutional framework for post-conflict justice remains elusive. During the early days of Libya’s civil war, the UN Security Council referred the situation in Libya to the International Criminal Court (ICC). Following a three-month investigation, ICC Prosecutor Luis Moreno-Ocampo announced the indictment of three members of the Libyan leadership for crimes against humanity: Qaddafi himself, his son Saif al-Islam, and Libyan intelligence chief Abdullah al-Sanussi.

According to the ICC investigation, the so-called “Tripoli Three” bear the greatest responsibility for atrocities during Libya’s civil war. As the sole permanent body of the ever-growing international criminal legal institution, the ICC occupies a unique place in Libya’s conflict resolution and reconstruction efforts. While the Court frequently conducts public, grassroots outreach efforts in tandem with trial proceedings, the ICC’s “greatest responsibility” offers little tangible justice for conflict-affected populations on a micro-level. Instead, the indictment of the Tripoli Three functions as the first (symbolic) indication of accountability in 40 years of poor governance.

With Qaddafi still at large, and Saif al-Islam roaming the streets of Tripoli, the future of the Tripoli Three’s indictment remains uncertain. The TNC leadership has insisted that Qaddafi, if and when he is captured, be put on trial in Libya. In the absence of formal justice institutions, this goal seems unfeasibile. TNC leadership has demonstrated its interest in crafting Libyan solutions to the country’s post-conflict shortcomings, with limited international guidance. However, the ICC indictments — and the complementary nature of ICC proceedings — provide an added incentive for the TNC to invest in justice-sector development. The ICC’s complementarity principle will adopt a complex interplay with the TNC’s justice capacity-building efforts, spurring a sustained commitment to the rule of law’s institutional foundations.

Justice and the rule of law will be an essential component of post-Qaddafi Libya’s political development. The TNC has initiated reprisal killings against African migrants in Libya, under the allegation of mercenary activity.

Accountable justice institutions are necessary to ensure that such killings do not continue, and to restrain Qaddafi loyalists’ violent excesses. The TNC’s leadership and complementary cooperation with the ICC are crucial to this initiative’s success.

The nature of international criminal justice restricts the ICC’s utility in post-conflict Libya. The ICC can address a limited sub-section of justice issues as Libya attempts to reconstruct its broken state institutions. The challenge of economic justice, redresses for structural violence, and prospects for reconciliation have little to do with the ICC’s case against the Tripoli Three. However, where a historical and political reckoning with the Qaddafi regime’s policies is concerned, the ICC has an indispensible place in post-conflict reconstruction.

Original article via policymic

Daniel is a member of the class of 2013 at Georgetown University’s School of Foreign Service, studying international politics with a concentration in international security studies. He is primarily interested in civilian protection and conflict prevention policy, with a regional focus on sub-Saharan Africa. Daniel currently serves as National Student Director for STAND, the student-led division of the Genocide Intervention Network/Save Darfur Coalition, and has been active for the past two years in advocacy efforts surrounding conflict resolution in Sudan, the Democratic Republic of the Congo, and elsewhere. He is a New York native, via the cheese counter at Zabar’s. Opinions expressed here do not represent those of any organization. @danatgu.

On June 27 the International Criminal Court (ICC) issued arrest warrants for crimes against humanity for Colonel Muammar Gadaffi, his son Saif al-Islam al-Gadaffi, and intelligence chief Abdullah al-Sanussi, collectively known as the Tripoli Three. The decision was a way of applying pressure to the regime and ensuring that those who perpetrated the atrocities in the country eastern regions would be held accountable.

Ideally these men should be tried by an international court that is convened to examine their crimes and judge them. In an ideal world, Libyans would look on as justice was served in the interest of humanity. Sadly, we do not live in this utopia. The reality is that these men must be tried in Libya to prevent them using the international judicial system to avoid their guilt. It is also likely that any outcome other than a trial in Libya will deeply frustrate the Libyan people.

The first reason why the ICC should not seek the Tripoli Three’s extradition to The Hague is because the ICC is the wrong forum for these trials. It provides the accused with an international stage to pose and grandstand on. This happened in the case of former Yugoslav President Slobodan Milosevic, who postured, denied, and sought every legal means to delay the proceedings of the court during his defense at the ICTY. In a Libyan court, the Tripoli Three might not receive a totally impartial hearing, but they will not be allowed, as Milosevic was, to grandstand and support their crimes by providing vacuous and flattering arguments. In this sense, they will be held directly accountable to Libyans for the actions they perpetrated towards their fellow countrymen.

Equally, for Libyans so long denied control over their destiny, it would be a travesty for them to be denied the control over trying the men who made the 42-year Gadaffi regime one of most repressive in the Arab world. Additionally, trying of these men in Libyan court will constitute a key part of the resolution process for this costly conflict, as this was a regime, and consequently a war, that affected only Libyans, not the international community. Jurisdiction should therefore lie with the Libyan authorities, not the ICC. These trials should remain a national, not a supra-national issue.

Previous trials of former Arab leaders teach us valuable lessons, specifically the current trial of Hosni Mubarak, in which the live courtroom television feed was cut off. In a Libyan scenario, the trials would have to be very transparent. Consequently, Libya has a phenomenal opportunity to prove to the world that post-Arab spring Arab countries have the potential to enforce justice in a transparent manner keeping with international standards of a fair trial. The argument that only the ICC is able to do this is inadequate and misguided. Indeed would be fitting that Libya starts its transition from dictatorship to democracy by holding a fair and open trial for its former ruler, one that will set the tone for the years to come.

Therefore, with the Tripoli Three now on the run and the regime in tatters, the key objective is to enable Libya to enter a transition phase between past state-terror and future democracy, and between present uncertainty and forthcoming stability. Part of this has to be the trial of these three key actors in a Libyan court of law, on Libyan soil where the Libyan people can hold them accountable. Involving the ICC will damage the international community’s efforts in Libya, allowing Gaddafi to do even more damage by rhetorical grandstanding, thereby frustrating the Libyan people.

Should the ICC receive custody of the Tripoli Three, it should return them to face Libyan justice at home. Any other outcome will be highly detrimental to Libya, and to the Libyan people’s path to democracy and stability.

Original article via policymic http://www.policymic.com/article/show/id/1532/op/yes
Originally from the U.K. , William takes a keen interest in international affairs and politics, specifically Middle-Eastern and Maghreb affairs, drawing on his studies in Middle-Eastern Studies and Arabic at the University Exeter, with a specialisation in North-African politics. His main interests include international Politics, US domestic politics, Algerian history (Specifically the colonial period and the civil war of 1991-2001), and the post-colonial identity of the Maghreb. Highlights of his Middle-East experience have included studying in the Levant and working in North-Africa. He is a big fan of The Daily Show with Jon Stewart.
@WHDBauer

Nuremberg Prosecutor, Ben Ferencz delivered a statement in the closing of the historic first case at the International Criminal Court on August 25th. The transcription of his speech is published below.

Mr. Ferencz is the kind of man who is moved to tears, and moves one to tears, when you hear him speak. He is a man of great conviction, and immense passion for the law. He is never afraid to show his compassion, nor his contempt, in the courtroom – not the kind of man to check his emotions at the door.

Unfortunately I did not get to hear Mr. Ferencz deliver his speech at The Hague last week, but when I heard him speak at the Review Conference of the Rome Statute in Kampala last year, he talked about his experiences in Word War II, and his involvement in the liberation of the concentration camps in occupied Europe before he become a prosecutor in the trials that would bring the perpetrators of the Holocaust to justice. A lifetime later, countless crimes against humanity later, it is evident that Mr. Ferencz still believes wholeheartedly in the possibility of bettering humanity, of a safer and more just world. He not only still believes in it, he still fights for it too, and tirelessly, at the age of 92.

When I am feeling cynical about my work, when I feel that humanity is preordained to repeat its most terrifying crimes over and over, without cease, I would do well to re-read some of Mr. Ferencz’s speeches. If this man can stop himself from becoming a cynic, I know I must do the same.

I hope you enjoy Mr. Ferencz’s profound, and hopeful words. Pass them along and help Mr. Ferencz fulfill his prophecy of an “awakened conscience of the world.”

Jesse Loncraine
Editor

“May it please your Honors:

Let the voice and the verdict of this esteemed global court now speak for the awakened conscience of the world.”

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                    Benjamin B. Ferencz

Today the International Criminal Court begins its first hearings to confirm charges against three of the six men accused of orchestrating the violence that followed Kenya’s 2007 Presidential Elections, leaving over 1,000 dead and over 350,000 displaced. We interviewed many of the displaced during the spring of 2008 while working with Kenyan rights groups determined to confront a political culture prone to violence with justice through genuine accountability.

The ICC is a relatively new but potentially powerful instrument for holding those responsible for the most serious crimes to account, and these trials therefore represent an important step in Kenya’s reconciliation process and towards ending the cycles of impunity that have blighted the country’s recent political history.

The ICC must not forget, however, that its mission depends crucially on its ability to deliver a sense of justice and accountability to the victims of the crimes it investigates and prosecutes. Victims are the primary constituents of the Court’s work. These are the communities that must have their faith in the rule of law restored through a clear sense that justice has been done and that any rewards for violence have been reclaimed, lest their grievances be allowed to slowly erode the prospects for a sustainable peace.

One of the most effective means of ensuring that victims are engaged in the justice process is by ensuring that trials are held in or near their communities where possible. This is an unquestioned assumption in most domestic criminal cases, and the stated preference of many victims’ groups. How can victims be expected to engage fully in a judicial process when it is conducted thousands of miles away?

The Rome Statute, the ICC’s founding document, clearly recognises the importance of administering justice locally through the so-called “principle of complementarity,” which limits the Court’s jurisdiction to case where the State itself is unwilling or unable to conduct trials of its own. While the ICC sits in The Hague, the statute therefore clearly allows it to convene elsewhere, particularly where this will help bring justice closer to victims.

A recent review conference convened to discuss the Court’s progress over its first ten years also reaffirmed the centrality of victims to its work, and stressed that the Court needs to dramatically strengthen its presence in situation countries, as well as other aspects of its outreach programme.

Regrettably, and despite numerous proposals to hold some or all of its proceedings in Kenya, hearings have today started in The Hague. This is a decision is consistent with the Court’s continued reluctance to conduct trials in countries where the relevant crimes have been committed.

There are, of course, circumstances that might make such local hearings impossible. The primary concern of any investigations and trials must be the wellbeing of witnesses and victims, including their physical and psychological welfare. The reality of many of the post-conflict societies in which the Court operates is unfortunately such that this cannot be guaranteed.

There is, however, little to suggest that the Court has conducted a comprehensive analysis of the current security situation in Kenya. The Prosecutor himself has noted that “no security assessment has been conducted that permits the Chamber to determine that conducting the proceedings on site will be in accordance with the Rome Statute’s security requirements.” Furthermore, little thought appears to have been given to whether the relevant security concerns could be mitigated or managed in a way that would make it possible to conduct some proceedings in affected communities. Nor, if its security concerns are indeed well founded, does the Court appear to have seriously considered conducting some of its hearings in neighboring Tanzania, which already hosts the international criminal tribunal tasked with prosecuting those responsible for the genocide in Rwanda.

Breaking cycles of impunity that reward violence and undermine trust in the rule and institutions of law is an ongoing project. The ICC has an important role to play in this project, but to succeed it must do more to engage victims in its work from the very onset of its investigations and throughout its trials. Advocacy groups such as No Peace Without Justice are now working to ensure that the Court’s decision does not set a precedent that presumes against conducting trials in affected communities in the future, and to encourage the ICC to strengthen its protection and support mechanisms victims and witnesses. This is crucial not only to ensuring the Court lives up to its potential in Kenya, but to the long-term project of building sustainable peace through universal international criminal justice.

Follow Michael Gibb on Twitter: www.twitter.com/GibbMichael

Original article on The Huffington Post.

As Eid al-Fitr passes, rebel forces, now controlling most of Libya, are conducting their final assault on Sirte. Like Stalingrad in the last World War, the symbolism in the fall of Sirte will carry no trivial import in the campaign against the residue of Muammar Gaddafi’s regime. As if conspiring with the religious significance and key events of the Muslim holy month of Ramadan, there can be no doubt that rebel forces timed the invasion of Sirte much in the same way they did regarding Tripoli on August 20, the very day the Prophet Muhammad, as it is written, entered Mecca. Sirte is said to be Gaddafi’s hometown, where much of his life has been shaped.
The assault on Sirte no doubt is but one leverage point among the array of bargaining chips the National Transitional Council (NTC) is deploying against the remnants of Gaddafi’s regime. The NTC is the formal organizational venue and speaking authority of the rebel forces to date, and, carrying the blessing of NATO no less, it is the very source from which they draw their political and jural legitimacy. The assault on Sirte is a bargaining chip that cuts both ways too, because, the weapons of war, deployed in the name of peace, are being used by the rebels not only to press for negotiations for a peaceful transition, but also as a way to convince the governments of the world to release frozen Libyan funds, in the name of freedom of the Libyan people. The argument is made that Tripoli, like the rest of the Libyan countryside laying waste to war, is without light and hot water. The accumulation of trash pollutes the streets, and corpses are left in abandoned hospitals. Fuel costs have spiked. Like Afghanistan, Iraq, and all modern wars, every zone of conflict will bring with it a security vacuum, hence the need to pay for a civilian-led local police, also argued in the name of democracy and the non-military means for which that great name purportedly stands. So, release the funds, the rebels say. This great transfer of wealth, which has occurred partially over the week, will have very significant distributional socioeconomic consequences. Beyond wealth, it will certainly help in the affirmation of the ostensible legitimacy which Western Europe and the US, NATO included, have bestowed upon the NTC, even as in-fighting is apparent and occurring among rebel factions and tribal leaders under its auspices.

Is the NTC really the “legitimate” government which the US and its allies so recognize? The continued assaulted on Sirte, of course for the sake of peace and freedom, can strike one as a classic, circular tautology—release our funds so that we can finance all peace efforts; we will grant you peace by releasing our funds. Moreover, the release of funds might persuade the other key political players—China, Russia, Brazil and the African Union, among a host of Gaddafi sympathizers—to cow to NATO’s crowning of NTC as the de jure government, which imprimatur, to this day, enjoys no real strong consensus.

Whatever the result of the NTC’s funding problem, which remains uncertain despite the release of some Libyan funds for humanitarian purposes, will no doubt directly benefit the war powers of the rebel forces, Libya’s six-month civil war will soon be resolved, and the questions now are not if or when, but how and what. What will be the nature and form of Libya’s transitional government? What form of humanitarian intervention should materialize, whether led by states or by large donors, in the critical days that come?

According to the Associated Press, Moussa Ibrahim, Gaddafi’s chief spokesman, very recently called the AP headquarters in New York and stated Gaddafi’s offer and position to negotiate with the rebels to form a transitional government. According to Ibrahim, Gaddafi’s son, al Saadi, was to head the negotiations. The NTC perfunctorily rejected the offer. The rejection certainly comes with unstated terms, but it will not be unreasonable to suppose that backdoor negotiations for a peaceful transition are already occurring, if not already sealed.

Mahmoud Jibril, speaking for the NTC, is now struggling with a “roadmap” for his country’s transition to democratic rule, which includes the convention of a “national congress,” a revision of the current Libyan constitution, a transitional executive and elections. Whether Jibril will in fact head the new government remains to be seen, but there is no doubt that whoever or whatever will take the reins of the new order, all in the name of the free Libyan people, must confront the brutal fact that Libya enjoys no strong liberal democratic tradition, let alone a constitutional democracy, and by that fact alone the new Libya will be subjected to deliberate design from the outside as opposed to spontaneous growth from the inside. This imposition of norms, legal and otherwise, is no new development, and will likely follow the same track Iraq and Afghanistan and the former Yugoslavia have taken. How may the new cadre of social engineers—whoever they may be—approach, design and manage the new Libyan order? More importantly, to what extent and up to what boundaries might humanitarian and multi-governmental intervention push Libya to fall into the evils of “donor-driven justice?” If there is any lesson in history from which constitutional lawyers, policy analysts and social engineers may draw, it will likely lay in the transcripts of the war crimes courts of Nuremberg and Tokyo, and, quite recently, in the great social experiment that was the Saddam Hussein trial under the auspices of the Supreme Iraqi Criminal Tribunal. Questions of transitional justice, the ways in which the present Libyan justice system ought to be diagnosed and redesigned, along with how one ought to pick the national and international actors in the post-conflict reconstruction of Libya, are the very questions the new regime must answer, even as the NTC struggles with the fact that there is still no international consensus over its own legitimacy.

Whatever the result of this crowning of thorns by nation-states, there will be no avoidance of the fact that Libya must move fast from the rule of the tribe to the rule of law. Like Iraq post-Saddam and Egypt post-Mubarak, there will be a surge of sectarian violence and criminal activity in the streets as Libya struggles in post-conflict transition. How may Libya contain this explosion of social unrest as it seeks to impose order from within and from without? What are the various post-conflict and transitional justice strategies which Libya’s regime-in-waiting ought to deploy? As intimated, Libya has had no strong liberal democratic foundation; much of its governmental life has been driven by the rule of a singular personality. Its new leaders must proceed with that uncertainty in mind. The fact that Libya has had no good buttress in democracy is no reason to give up aiming for a working constitutional democracy, even if far from perfect, and certainly it is no reason for hesitating to use any and all forms of post-conflict strategies at its disposal to help its transition from war to peace. This includes what might be an interim government seated at Tripoli in the very near future.

Perhaps an instructive example is the South African Truth and Reconciliation Commission and the Good Friday Agreements in Northern Ireland. Northern Ireland and South Africa are rich sources of case studies and human capital which can benefit the new Libyan government, if it wants to be smart and quick. At the core of any nation building strategy in the wake of regime change is the idea of transitional justice, as well as international criminal justice. The deployment of transitional justice—as opposed to ordinary justice—usually takes the form of international criminal and “hybrid” courts and tribunals. In particular, the rise of hybrid criminal courts—“hybrid” because they are courts of mixed compositions, including international and domestic actors—is gaining ground in state practice. The consensus so far points to the existence of seven institutions that might fall within the scope of hybrid courts, sometimes termed as “third-generation” criminal courts, namely, the Extraordinary Chambers of Cambodia, the Special Tribunal for Lebanon, the Court of Bosnia and Herzegovina, the Special Court for Sierra Leone, the Kosovo Court established under the UN Interim Administration Mission in Kosovo (UNMIK), the Special Panels of the Dili District Court in Timor-Leste, and the Iraqi Special Tribunal. These seven case studies will serve as useful starting points, keeping in mind the emergence of new courts that might ostensibly belong to the same class, as in the case of Burundi. Scholars and policymakers also ought to be more familiar with the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court, considered “second-generation” courts, as well as the Nuremburg and Tokyo Tribunals, or “first-generation” courts. The principal governing framework today is the Rome Statute, which is the international legal predicate for the mandate of the International Criminal Court.

International and hybrid criminal courts are important components to every post-conflict reconstruction strategy because—and it will be hard to exaggerate this point—the mere act of sentencing an individual who was complicit in the wrongdoings of the past by itself challenges the very legitimacy of the prior regime. The judgment is one whereby the mere act of promulgation is itself functionally determinative of government legitimacy in retrospect. “Your Honor, we pronounce him guilty, because all that which he stood for, the very personification of state-sanctioned abuse of human rights, including all his past atrocities for which we hold him accountable, are the very social wrongs which we now redress.” Leafing through the court transcripts of the greatest trials of history will likely lead Libya to follow along these lines. If this is certain, then the new Libya will also be faced with the usual round-about accusation of handing down “victor’s justice” much in the way General Douglas MacArthur was when he set up the Tokyo tribunals. This is an accusation which the new Libyan government must inevitably cope, rightly or wrongly.

As Professor Jose Alvarez, a leading scholar of international law, points out, there are benevolent objectives in the establishment of every war crimes court, including deterrence, atonement of perpetrators and honoring the dead, material and psychological restoration, sublimating revenge into peaceful settlement, restoring the rule of law, truth-telling and memorializing barbarism to prevent its recurrence and restoring lost civility of torn societies and national reconciliation. Much ink has been spilled on the ways in which international or hybrid criminal courts function not only to hand down the penalty, but to serve as the principal means of mediating and diffusing ethnic, religious or ideological tensions in divided societies by sublimating incipiently bloody moments into discursive civic activity. As intimated, the mere act of handing down a criminal penalty will bring to the fore the higher-level question of regime legitimacy, past or present. The establishment, as well as the adjudication process, of criminal courts in transitional societies can have a profound effect on the constitutional legitimacy of both the incumbent and discredited regime.

However, there are greater problems. If the new Libyan order does follow this model, this step on the way to constitutional democracy will be stymied by the fact that its legal institutions are either destroyed or barely intact. Still, the need to hold accountable those individuals most responsible for the commission of complex crimes, including war crimes, crimes against humanity and other organized forms of crime, is no less urgent. How can the accused face trial when the whole justice system is in shambles? Specialized criminal courts and “truth commissions” are almost always set up in post-conflict settings where the conditions of the local justice system simply cannot cope with the ambitiously large-scale but indispensable effort to end impunity for war crimes and crimes against humanity. It would be beneficial for the NTC to keep these resource constraints in mind if indeed it is to serve as the Gaddafi’s successor. It would also be beneficial for the transitional government to explore existing models of interim governance, namely, the “clean break” model as in post-war Germany and Japan, the incremental model as in central and eastern Europe and the multi-staged South African model.

All said and done, as Ramadan draws to an end, it was Sheikh Mabruk who said that Gaddafi loyalists who had “lost their way” can come forward and be treated with mercy and in accordance with the law. “Everyone makes mistakes, even us,” says Mabruk. “Join your brothers. We are all Muslims.”

Edsel Tupaz is the founder and managing partner of Tupaz & Associates, a public-interest law firm. His expertise lies in comparative constitutional law, trade and development law and court systems design. Tupaz is also a professor of international and comparative law, teaching at law schools in the US and the Philippines. He was senior counsel and senior executive assistant of the Philippine Truth Commission created by Philippine President Benigno Aquino III. Tupaz is a graduate of Harvard Law School and Ateneo Law School in the Philippines. The author wishes to acknowledge the Associated Press for the facts upon which this article is based.

Suggested citation: Edsel Tupaz, International Justice and Post-Conflict Reconstruction in Libya, JURIST - Sidebar, Aug. 31, 2011, http://jurist.org/sidebar/2011/08/edsel-tupaz-post-conflict-libya.php.

“Why didn’t you go to the police?” I asked Alice (name changed). She was nursing her baby, a child conceived when Alice was raped by a “family friend” who had provided her with shelter in his home, food, and school fees two years earlier. In the middle of the night, she told me, he came home, drunk, and forced her to have sex, despite her protests and a clear “no” on her behalf. She did not go to the police because “he fled to Uganda,” she and her mother told me.

In fact, no one is sure where he went.

“We looked for him,” the girl’s mother tells me, “everywhere.”

“Everywhere” means a few dozen kilometers surrounding her small village with a population density so low that antelopes can be seen running around, fearless. “Looked” means asking around, through word of mouth, if anybody had seen him.

“So will you go to the police now?” I asked. “Maybe they will be able to find him?”

“No, it is too late,” the girl said, shaking her head. “They will ask why we did not go earlier.”

This conversation is similar to many I have had with victims of sexual abuse in Rwanda. There is a massive gap between the prevalence of rape in Rwandan society, particularly in the home, and the number of convictions. While much media attention has surrounded the widespread rape in neighboring DR Congo, rape and sexual abuse in Rwanda is largely kept away from the media, hidden inside the homes of the victims.
It is not just younger, unmarried girls like Alice who become victims. According to a 2008 report from the United Nations Development Fund for Women, a third of women in Rwanda report being raped by their husbands. And yet, in the 2010 Rwandan Crime Report, only 314 cases of rape were recorded, noted as part of an overall ‘drop’ in crime in one Rwandan news article. The same year, the US State Department Human Rights Report for Rwanda stated that 239 rape cases were tried, with 159 new cases and 1,463 pending by year’s end.  Sexual abuse, versus specifically ‘rape’, appears much higher when looking at data from individual courts. In Nyagatare district alone, 40-50 cases related to sexual abuse are tried each month. In a country where there is no clear definition of rape, as noted in the 2010 Rwandan National Public Prosecution Authority (NPPA) report, it is not clear how many of these cases of ‘sexual abuse’ would be considered rape in other contexts.

One UNICEF report suggests that “sexual abuse within the home has increased since the genocide.” Rwandan’s NPPA notes in its 2010 report that one reason for the seeming increase in rape in Rwanda may be from the increase in women speaking out. At the same time, there were actually more rape convictions total and per-capita before the genocide compared with after, suggesting that even if more women are speaking out, the number of rape convictions as a percentage of crimes committed is in fact falling.

Why, then, this major gap between the probable extent of sexual abuse and the number of convictions? And why are girls like Alice and her family not going immediately to the police?
One reason for the lack of convictions, as noted above in the 2010 Rwandan NPPA report, is the lack of a clear definition of rape, making “qualifications subjective and in most cases leaving some cases not tackled.” The report also recognizes the lack of women judicial police officers who can encourage girls to turn to the police. When victims do turn to the police, many investigators, usually male, either lack expertise or “believe that this is not one of the crimes that deserve serious attention.” Because many victims will not turn to the police unless they think they have a strong case and this case will be taken seriously, the official statistics on accusations may widely under-present the extent of the problem. Another factor in this under-reporting is the perceived shame, and stigma attached to sexual abuse. Alice did not venture outside her mother’s small home throughout her entire pregnancy, and still rarely does. “The neighbors will see me and talk,” she explained.

But it is more than just shame and a lack of confidence in the police. Many rape victims are financially dependent on the men who abused them. Sexual abuse is most prevalent within the home, and it is in these cases where girls and women are least able to press charges. With basic necessities and her schooling on the line, Alice decided not to report being raped. This type of conomic depency is widely acknowledged as a root cause of abuse; the Rwandan National Gender Policy recognizes that “women’s marginalized position and their economic dependence on men…is one of the main causes of sexual and gender based violence.”

Indeed, based on conversations I have had with community leaders, institutional directors, and the girls themselves, an impregnated rape victim is “lucky” when the rapist agrees to continue to financially support a girl and her baby; trying to imprison him is out of the question on purely practical grounds. Even when another witness comes forward, leading to a conviction, there are times when a prison will free a man early to take care of his family. In one recent case, a man was sent to jail for sexually abusing his young female relative. Only two years later, I was told, he was freed on the promise to help support his family.

The government has taken practical steps to counter this problem by empowering women, so that they do not need to rely on their abusers. The National Council of Women was set up to promote women’s empowerment on the local level through community enagagement programs within the Umudugudu, or community “cell.” The personal, intimate nature of the meetings, where locals gather to discuss solutions, encourages individuals to feel a genuine compassion towards those they are assisting – with some impressive results.

The case of Rwanda is unique. In 1991, and more so following the genocide, Rwanda implemented unprecedented policies for the protection women’s rights. The government initiated affirmative action policies, a Gender Monitoring Office, and massive campaigns, partly funded by USAID, warning young girls and boys against cross-generational sex. “You are not for sale!” billboards state throughout Rwanda, with the image of an older man giving a big wad of cash to a young girl, while the girl’s friend pulls her away from him, willing her to resist the temptation. Rwanda also passed legislation to protect victims of rape, such as Law No.27/2001 relating to rights and protection of the child against violence. The country received international attention related to rape cases from the genocide, and organizations such as Foundation Rwandan provided school fees for children born from rape during the genocide. And in the same name of women’s empowerment, girls began going to school at unprecedented rates.

This increased access to primary school education meant the dream of secondary school became a reality for increasing numbers of youth. But with secondary school admission came fees, which many parents could not afford, let alone orphans, whose numbers rose dramatically following the genocide. Sadly, many girls became dependent on older men for school fees and basic neccecities during their years of study, and this lead to some girls being pressured to have sex they did not want to have in order to continue their education. Assuring girls have access to free schooling and basic necessities so that they do not need to drop out of school to work will help prevent sexual abuse and may encourage girls to report sexual abuse, knowing that they are not reliant on the perpetrators for school fees.

For girls who are abused, there is the added difficulty of returning to school. Alice was very clear in her desire to return to school, however, an unofficial policy exists in which girls who are pregnant, regardless of the circumstances which lead them to become pregnant, are expelled from school. This is in spite of the official Girls Education Policy of the Ministry of Education as well as the Rwandan Country Report of the Implementation of the Beijing Declaration. This international declaration was signed in 1995 at the Fourth World Conference on Women and aimed to empower women, including adolescent mothers. Both the Rwandan government reports claim that, in Rwanda, girls can return to schools after they give birth. Yet I have seen a number of girls expelled from school for being pregnant, even at the more progressive schools, even when the pregnancy was the result of rape or sexual abuse. In her search for a new school, Alice is not going to tell school administations that she has a child.

These expulsions, and the fact that girls must hide the fact that they have children, margianalizes the victims and sends a message that the pregancy, and therefore the rape, was the fault of the girl. A lack of enforcement of the state policy, crafted as a result of international initiatives set forth in Beijing, means many girls don’t speak out, go to the police, or strive for justice. While the billboards throughout Rwanda proclaim “you are not for sale,” the sad reality is that education often is. And the issue of free education is closely tied to the issue of preventing sexual abuse. While the law needs to be clearer and more female police officers available for girls to report abuse, only through free and universial education will the this generation of women be empowered to resist abuse before it arises, utlize the laws, and go the police.

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Mollie Gerver has been working as a consultant and researcher in Rwanda over the past year. Prior to moving to Rwanda, she worked with refugees from Sudan, DR Congo and Eritrea living in Israel. She is currently raising money to pay for the school fees and living expenses of a number of girls who have been expelled after becoming pregnant from rape. If you would like to contribute, please write to her at:
Molliegerver@asylumseekers.org

U.S. Ambassador to the United Nations Susan E. Rice told CNN’s Wolf Blitzer today that the Libyan people will have to decide whether to try Muammar al-Qaddafi themselves for crimes against his people, or surrender him to face justice before the International Criminal Court (ICC).

“This is something that must be decided not by the United States or any other government, but by the people of Libya and by the interim transitional government that we expect will soon be constituted,” Rice said. “These are all choices that the Libyan people will ultimately have to make for them.”

Not so fast. A statement issued today by ICC prosecutor Luis Moreno-Ocampo said that any decision on where Qaddafi and two of his associates will be tried must be made by the Hague-based court’s judges, not the Libyan people.

The U.N. Security Council adopted a resolution in late February granting the ICC authority to prosecute top Libyan officials for their role in a bloody government crackdown on protesters. The court’s judges issued an arrest warrant in June for Qaddafi, his son Saif al-Islam, and his intelligence chief Abdullah Senussi on charges of committing crimes against humanity.

The ICC prosecutor’s performance with regards to the Libya conflict has so far been bumpy. On Monday, Moreno-Ocampo announced that he had been informed that rebel forces had arrested Saif al-Islam. Today, his spokesman acknowledged that the prosecutor had only heard this information from a secondhand source, which turned out to be wrong.

With the prospects of Qaddafi’s capture growing by the hour, the country’s rebel leaders have expressed an interest in prosecuting the three Libyan leaders themselves. Ibrahim Dabbashi, Libya’s former deputy U.N. ambassador and a representative for the opposition, told reporters in New York that the Libyan opposition would like to try Qaddafi for war crimes inside Libya, but that they are in talks with the ICC on how to proceed.

But legal scholars and court advocates say the decision is not up to the Libyan people.

Richard Dicker, a court advocate at Human Rights Watch, said that the U.N. Security Council “took the matter out of the hands of the Libyan people.” That decision, he said, reflected a judgment that the Libyan judicial system, undermined by four decades of autocratic rule, did not have the capacity to conduct a fair trial of the three accused men.

Dicker recalled that Libya’s Transitional National Council (TNC) pledged in a letter to the ICC prosecutor to cooperate with his investigation, and surrender Qaddafi and the two others to the court.

“Contrary to Ambassador Rice’s statement—while of course there will need to be national trials in Libya—for the three ICC accused there is a binding obligation to arrest and surrender them for fair trial in The Hague,” Dicker said.

James Goldston, the executive director of the Open Society’s Justice Initiative, said a new Libyan government would be obliged to execute any ICC arrest warrants against the Qaddafi officials, but that it could make a case to the court that Libyans “have the power and the will to try these people.”

“It will have to be the ICC judges that will make the final determination as to whether any domestic proceeding comply with requirements of the Rome Statute,” he said, referring to the treaty establishing the ICC.

A statement from Moreno-Ocampo’s office confirmed that ICC judges “will decide on the proper forum to conduct trials” of Qaddafi and the two other officials. The statement also said that Moreno-Ocampo had “confirmed his commitment to work with the TNC to stop the crimes in Libya and do justice.”

But other analysts believe that the United States is right to support Libyan efforts to prosecute Qaddafi in Libya, saying it would provide the new government with a chance to shore up its legitimacy and prove that it can pursue a just end to its own problems.

“This is the right policy choice if Libya can prove capacity + ability to administer impartial justice,” Michael Hanna, an analyst at the Century Foundation, wrote on Twitter today.

Read the original article here.

On August 8, nine Salvadoran former military officers turned themselves in to a military base in San Salvador, attempting to avoid arrest. It didn’t work: the officers were arrested by the Salvadoran police and jailed on an arrest warrant from a Spanish court, accusing them of involvement in the killings of six Spanish Jesuit priests, their housekeeper and her daughter in 1989. The crime was one of the most brutal and emblematic of that country’s civil war. An extradition request is expected soon.
On August 12, Guatemala arrested four alleged participants in the 1982 Plan de Sanchez massacre, in which almost 300 people were killed. The four are tobe tried soon. The arrests in that case follow close on the heels of the convictions last month of four kaibiles (Special Forces) for participation in another massacre in the hamlet of Dos Erres, and the arrest of the former army chief of staff for Rios Montt’s government, Oscar Mario López Fuentes, on genocide charges.
Two high-ranking former police officials are also in the dock accused of forced disappearances. One is Pedro Arredondo, former head of a secret police unit and the person widely believed to be responsible for the firebombing of the Spanish Embassy in 1980. The other is Hector Bol de la Cruz, who is being held in the disappearance of union leader Fernando Garcia; the police operatives in that case were tried and convicted last year. The evidence in the forced disappearance cases is believed to be largely based on the Police Archives discovered several years ago.
While advances in trying perpetrators of past human rights violations have led to hundreds of trials in the Southern Cone (written about here and here), until recently Central America provided a dismal counterexample.
Both El Salvador and Guatemala experienced military-dominated regimes that waged brutal counterinsurgency wars. The 12-year Salvadoran civil war, beginning in 1979, killed an estimated 75,000 people. Meanwhile, the 36-year Guatemalan conflict, originating in 1960, resulted in approximately 200,000 deaths, as well as genocide against some Mayan groups. The conflicts in El Salvador and Guatemala ended with the signing of peace accords and transitions to elected government, but the new governments continued to face constraints on democracy due to the persistent power of the military and economic elites over the political system.
In El Salvador (prior IntLawGrrls posts), the legislature passed a blanket amnesty law days after an internationally backed Truth Commission found that the military had committed massive human rights violations. The Supreme Court in 2003 allowed for exceptions to the amnesty law where fundamental rights were at issue, but the prosecutor has never seen fit to find a single case where he alleged that this was the case.
In Guatemala (prior IntLawGrrls posts), the Law of National Reconciliation provided for amnesty, but made the amnesty inapplicable to international crimes, including genocide, torture and forced disappearance. Nonetheless, the public prosecutor there never saw fit either to bring cases involving crimes relating to the conflict, and defendants used the courts to delay and sidetrack any investigations. A culture of impunity prevailed, kept in place not only by the former military but by drug cartels and gangs, some connected to former security forces.
So what’s happened to create the current movement?
In El Salvador, the election two years ago of a center-left journalist, Fernando Funes, moved the government from a position of implacable opposition to any weakening of the amnesty law to one where the government expressly left these decisions for the courts.
The Spanish case involving the Jesuit murders, although brought under Spain’s universal jurisdiction law, involves mostly Spanish citizens, and so is perhaps less of an intrusion on sovereignty. The Spanish judge heard extensive evidence in the case, including from two former prosecutors who now hold high ranking-positions in the government and on the Salvadoran Supreme Court, before issuing arrest warrants in May for 20 people. However, a majority of that court’s members are still fairly conservative, and it’s not clear that they will grant the extradition request.
And for cases involving only Salvadoran citizens, the amnesty law is still a potent barrier.
In Guatemala, cases alleging genocide have been brought in both the domestic (2000 and 2001) and Spanish (1999) courts.
The Spanish case led to temporary arrests of some of the defendants in 2007, but the Constitutional Court denied the validity of Spanish arrest warrants in the case.
Although the Spanish case may have helped provide evidence and testimony and keep the issue alive, the big change has been the appointment of prosecutor Claudia Paz y Paz Bailey, about whom IntLawGrrls have posted. She is a long-time international criminal lawyer and human rights lawyer, and has taken decisive action to beef up her ability to try these cases—many of which have been the subject of hearings before the Inter-American Commission and/or Court of Human Rights.
She needs to move fast, since the expected electoral victory of hardliner (and former military officer accused of crimes during the conflict) Otto Perez Molina will make her job more difficult. So we can expect more high-profile cases to be brought to trial in the next few months. Whether convictions can weather appeals in Guatemala’s conservative higher courts is anyone’s guess.
The U.S. government has taken an ambiguous stance with respect to these cases.
In the Guatemalan Dos Erres case, it arrested one former kaibil (who was sentenced to ten years in prison on visa fraud charges), deported a second back to Guatemala, and is seeking the extradition of a third from Canada.
On the other hand, the Department of Justice has so far refused to cooperate with the Spanish courts in the Jesuit case, even though one of those indicted in that case is residing openly in Massachusetts.
And the State Department has to date said nothing about the allegations that Guatemalan presidential candidate Perez Molina was involved in crimes against humanity during the 1980s, when he commanded a military outpost in the most hard-hit area of the country.
So far, it’s been the combination of internal changes and outside pressure that has managed to crack open a bit the façade of impunity. Those outside Central America owe it to the courageous people inside to keep that pressure up.

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First published on IntLawGrrls (http://intlawgrrls.blogspot.com/).

After a bumpy legal road and meeting volatile witnesses, the International Criminal Court (ICC) has reached the final chapter in its first trial. Prosecutors, lawyers and victims are preparing their closing arguments for Thursday and Friday. The ICC is slowly but surely gaining momentum.

The brand new electric curtain opens up slowly. Behind the bulletproof glass emerges a small courtroom. The decorum: wooden desks and black office chairs. The packed public gallery on the other side of the glass awaits the debut.

The historic courtroom scenario starts to unfold on Monday 20 March 2006, when the once-flamboyant rebel walks into the courtroom. He uncomfortably takes place behind his lawyer and puts on his headphones. At the other side of the courtroom: a team of international prosecutors. On his left: three judges. The French president Claude Jorda asks the accused to introduce himself.

“My name is Thomas Lubanga Dyilo. I was born on the 29th of December, 1960, in Jiba, in the Democratic Republic of Congo. I am a politician by profession,” the Congolese man replies. Three days earlier he was flown from Kinshasa to The Hague, on a one-way ticket.

He is the first detainee at the permanent court that brings to justice the worst human rights abusers. Occasionally, Lubanga wears a colourful African dress, but during the many hearings he remains a silent spectator. He observes the trials and errors of the prosecution and hopes to be released

Lubanga – a former psychology graduate - puts aside his books and enters politics in the late 90’s. Not long after the ICC opens its doors in The Hague in 2002, he becomes the leader of the Union of Congolese Patriots (UPC). His ruthless militia – within its ranks numerous children - raped and killed civilians in the lawless eastern Congolese region of Iruti.

Dieumerci

ICC Chief Prosecutor Luis Moreno Ocampo drafts an indictment late 2005 when Lubanga was already imprisoned in connection to the killing of 9 UN peacekeepers earlier that year. In March 2006 Kinshasa quickly sends him off on a plane. Just before the trial is due to start is nears collapse. In July 2008, the judges decide to release Lubanga because prosecutors withheld exculpatory evidence. On the brink of disaster, Ocampo manages to solve the problem and finally opens his first trial in January 2009:

“Lubanga’s armed group recruited, trained and used hundreds of young children to kill, pillage and rape”, he says. “The children still suffer the consequences of Lubanga’s crimes. They cannot forget what they suffered.” But when one of these children testifies as the first witness, it almost goes wrong. The shy boy withdraws his statement after his Lubanga keeps staring at him. The boy has no name.

Two weeks later, after the judges have put up a screen in court, the boy returns, now under the pseudonym ‘dieumerci’ – ‘thank god’ in French. He tells how he was kidnapped by Lubanga’s militia.

Scapegoat

The ICC is there to prosecute the biggest perpetrators of mass atrocity. Then “why has the prosecutor targeted Thomas Lubanga for this first trial?”, his lawyer Jean-Marie Biju-Duval once asked the court. “There is no lack of suspects of war crimes and crimes against humanity between Kinshasa and Kampala,” he argued. Lubanga’s lawyers contend that their client is a scapegoat for the crimes of others.

Moreover, the defence complains about the role of 118 victims in the trial, a novelty at the ICC. They have a voice during the proceedings, but the lawyers representing them sit next to the prosecutor. The lawyers argue they have to deal with two prosecuting parties. And indeed, the victims’ representatives tried to add additional counts to the charge sheet.

The lawyers successfully raised concerns about Lubanga’s fair trial rights. In July last year the judges decide to release Lubanga, again. This time because the prosecutors refused to reveal an intermediary between the prosecutor’s office and witnesses. The trial was saved by the Appeals Chamber, which ruled the judges had erred in law and rebuked Ocampo for flouting court orders. The trial resumed last October.

ICC today

After trials and errors in the first trial, the ICC is gaining momentum. Slowly but surely. Ocampo’s team is investigating crimes in six countries and monitoring at least nine other crimes scenes. The court awaits the arrival of Gaddafi and his son and the United Nations may even put Syria on Ocampo’s plate. The courtrooms are fully booked and lawyers are working overtime.

It is getting busy in The Hague. Since 2007 Lubanga welcomed two old rivals – Germain Katanga and Mathieu Ngudjolo Chui - and Congo’s presidential candidate Jean Pierre Bemba Gombo in prison in Scheveningen. All three are now on trial. Late last year, Callixte Mbarushimana joined the illustrious company. Next month, six Kenyans will come to The Hague, voluntarily. Meanwhile, a lawsuit against two Sudanese rebels from Darfur is in preparation.

The busier the court, the more the critics

“Ocampo only chases Africans and is a puppet in the hands of politicians,” critics cry from the sidelines. “Where are the Americans, Chinese and Israelis?” they wonder. The ICC is a global court, but ‘rogue states’ like Libya and Syria, major powers do not accept its jurisdiction: China, Russia and the United States are not parties to the Rome Statute, the treaty that established the court.

Expectations are immense but the court can not always deliver. It leads to a flood of criticism: “the ICC is too slow, too costly and it is ineffective.” While requests for justice are piling up in The Hague, the prosecutor has to reject most of them because its jurisdiction is limited. Therefore the ICC has a full-time job explaining its complex mission. It deals only with war crimes, crimes against humanity and genocide committed after July 2002. Moreover, the prosecutor can only act in 116 countries when there are no other options. In other cases, only the UN Security Council can intervene as it did in Sudan and Libya.

To Lubanga it does not make a difference. He is on trial and faces the possibility of spending the rest of his life in prison. He might be looking forward to the unlikey arrival of his old friend, Bosco Ntaganda. But the feared fugitive warlord sometimes feels free enough to play a game of tennis in Goma, while he is also a big name on Ocampo’s wanted list.

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Thijs Bouwknegt is International Justice Editor for Radio Netherlands Worldwide
Follow Thijs on Twitter: @thijsbouwknegt

This article is a reposting from RNW. Visit the original site: http://www.rnw.nl/international-justice/article/lubanga-final-chapters-first-icc-trial

Dear Muammar,

I saw you on the TV this morning, well, not really you, but a statue of you in Tripoli being destroyed by some rebels.

I thought to myself, now would be a good time to write to the Brother Leader. I’ve enclosed a copy of the Rome Statute for you to read (they have it in Arabic too, which is nice). I’ve put little Post-it notes on the parts I think you should read. Article 7(1)(a) and article 7(1)(h) are all about murder and persecution, which is what they’re accusing you of, Muammar.

Here’s a picture of our place in The Hague.

It’s not so bad really, probably not what you’re used to, but I’m sure you’ll fit in fine. I hear they’ve invited your son too, so at least you’ll have company. I’ve heard a lot about Saif. It sounds like he takes after his father. You must be proud.

You’ll make lots of new friends when you get here, Muammar. Callixte is in the room next to mine. He arrived not so long ago and is getting on well. He’s from the Rwanda. Jean-Pierre’s a bit of a bore. He keeps harping on about running for President back home. I try and tell him that now’s not a good time, but he’s determined, I guess. Then there’s Germain. We don’t get on, not one bit.

Well, I’d better get going. It’s my big day tomorrow. Closing statements, I’m really nervous. Things move pretty slowly here, but hopefully I’ll see you soon. Be safe. It’s important that you get here unharmed.

Bye for now. Your friend to be,

Thomas Lubanga

P.S. The staff here are really nice. They treat you with respect and dignity.