IJCentral: International Justice Central

President Omar Hassan al-Bashir of Sudan arrived in Kenya on Friday to participate in a ceremony inaugurating the country’s newly minted constitution, flouting international demands for his arrest on genocide charges.

Mr. Bashir faces two arrest warrants: one issued in July by the International Criminal Court in The Hague on three counts of genocide and one from March 2009 for war crimes and crime against humanity. In theory the warrants could be enforced by any of the court’s member countries, which include Kenya.

The charges relate to the conflict in the western Darfur region of Sudan, where an estimated 300,000 people have died and more than two million have been uprooted by almost a decade of fighting between the government and rebels. Mr. Bashir denies the charges.

News reports said Mr. Bashir was escorted into Uhuru Park in the Kenyan capital, Nairobi, by the minister of tourism, Najib Balala, to attend the ceremony marking the adoption of the new constitution, supposed to hasten democratic reform in Kenya, a nation generally depicted as pro-Western.

The role of the international court is particularly sensitive in Kenya because last April its judges authorized formal criminal investigations of the political leaders who organized the violence that convulsed the country after its disputed election in 2007.

Kenya’s political leaders had earlier refused to set up a special tribunal to prosecute those responsible for the killings, saying Kenya’s existing courts could handle the cases.

Under the Rome Statute establishing the court in 2002, which Kenya has ratified, member states are supposed to cooperate with the court, which has no means of enforcing its warrants. Nonetheless, Mr. Bashir traveled last month to Chad — also a member state of the international court — without being arrested.

The African Union, the continent’s main representative group, has criticized the warrant and urged that it be suspended.

The readiness of President Mwai Kibaki to receive Mr. Bashir drew strong criticism from Human Rights Watch, a rights advocacy group based in New York.

“Kenya will forever tarnish the celebration of its long-awaited constitution if it welcomes an international fugitive to the festivities,” said Elise Keppler, senior counsel in the International Justice Program at Human Rights Watch in a statement on Thursday. “Even worse, hosting al-Bashir would throw into question Kenya’s commitment to cooperate with the I.C.C. in its Kenyan investigation.”

“Whether Kenya allows a suspected war criminal into Kenya is a test of the government’s commitment to a new chapter in ensuring justice for atrocities,” Ms. Keppler said. “The Kenyan government should stand with victims, not those accused of horrible crimes, by barring al-Bashir from Kenya or arresting him.”

The international warrants for his arrest have largely restricted Mr. Bashir’s travels to friendly countries in Africa and the Middle East that have resisted Western pressure to do the court’s bidding.

The celebration of Kenya’s new constitution, written to alleviate longstanding problems hindering good government for years, came after voters approved the document with overwhelming enthusiasm in a referendum earlier this month. It has been billed a potential turning point Kenya’s postcolonial history, addressing issues that have haunted the country since independence from Britain in 1963.

The constitution was drawn up after disputed elections in 2007 led to ethnically driven clashes that killed more than 1,000 people.

source: New York Times

KHARTOUM — Darfur’s rebel Justice and Equality Movement said Tuesday it was locked in fresh fighting with Sudan’s army, a day after the International Criminal Court charged President Omar al-Beshir with genocide.

“Early this morning… 60 four-wheel drive vehicles of Sudan’s army and militia obstructed JEM patrols near Kuma, North Darfur, JEM spokesman Ali Alwafi told AFP.

“The genocidal forces lost the battle and fled to Kuma. Our forces pursued them into the town and destroyed their military camp and captured 34 well-equipped vehicles,” he said.

The United Nations and African Union peacekeeping mission in Darfur, or UNAMID, said it was aware of reports that clashes had broken out between JEM and the Sudanese army.

“UNAMID has received as-yet unconfirmed reports of clashes between government forces and the Justice and Equality Movement in North Darfur. Verification missions are planned to confirm these reports,” it said.

The Sudanese army could not be reached to confirm or deny the reports.

On Monday, the army reported clashes involving JEM, one of the most militarised groups in Darfur, and its soldiers in the strategic Adula region between South Darfur, North Darfur and nearby North Kordofan province.

The fighting came as the International Criminal Court announced it has decided to add genocide to the charges against Beshir, who is already wanted since March 2009 for war crimes and crimes against humanity over his role in Darfur’s war.

Darfur, an arid desert region the size of France, has been gripped by a civil war since 2003 that has killed 300,000 people and displaced another 2.7 million, according to UN figures. Khartoum says 10,000 people have died.

source: AFP

The International Criminal Court’s judges on Monday charged Sudanese President Omar Hassan al-Bashir with orchestrating a bloody campaign of genocide against Darfur’s three main ethnic groups, the first time the Hague-based court has accused a sitting head of state of committing the most egregious international crime.

The three-judge pretrial chamber issued a formal arrest warrant for Bashir—the second time it has done so—on three counts of genocide. They include the crime of targeted mass killing, the causing of serious bodily or mental harm to members of a target group, and deliberately inflicting conditions of life calculated to bring about the group’s physical destruction. “There are reasonable grounds to believe that Mr. al-Bashir acted with specific intent to destroy in part the Fur, Masalit and Zaghawa ethnic groups,” the judges concluded.

The decision provided a degree of vindication to the United States, which has stood largely alone in characterizing the killing in Darfur as genocide. It also gave a boost to the court’s Argentine prosecutor, Luis Moreno-Ocampo, whose pursuit of the Sudanese leader has generated intense opposition from other African and Arab leaders. Moreno-Ocampo suffered a setback this month when his case against another alleged war criminal, the Congolese warlord Thomas Lubanga, was suspended for a second time.

Sudan’s U.N. ambassador, Abdalmahmood Abdalhaleem Mohamad, dismissed Monday’s ruling as a politically motivated effort to undercut prospects for peace in Sudan and vowed never to surrender Bashir. “We condemn this in this strongest terms; it will only harden our resolve,” he said in an interview. “This court’s objective is to destroy chances for peace in Sudan; we’re not going to be bothered by it.”

Moreno-Ocampo said he welcomed the decision, which essentially reverses a previous ruling by the pretrial chamber to reject the genocide charges. He said the new ruling honors the victims of the mass killing in Darfur, a vast region in western Sudan. It may impose new obligations on states that have signed the Genocide Convention, including the United States, to cooperate with the court in its effort to arrest Bashir, Moreno-Ocampo added.

The court issued a previous arrest warrant against Bashir in March 2009, on seven counts of war crimes and crimes against humanity. Sudan, which has never ratified the treaty establishing the criminal court, has refused to surrender Bashir, who was reelected this year in a U.N.-backed election to a five-year term.

The violence in Darfur began in early 2003 when two rebel groups took up arms against Sudan’s Islamic government, citing a legacy of bias against Darfur’s ethnic tribes. In response, Khartoum organized local Arab militias, the Janjaweed, to help crush the resistance and its followers. The United Nations estimates that as many as 300,000 civilians died as a result of violence or hardships brought on by the forced displacement of nearly 2 million Darfurians.

source: The Washington Post

June 12 (Reuters) - Member states at a Kampala review conference of the International Criminal Court have agreed on how the court could investigate crimes of state aggression, such as an invasion or an attack on another nation.

Below are questions and answers on the move and what it means for the ICC, the world’s first permanent war crimes court.

HOW IS SUCH A CRIME DEFINED?

The crime of aggression was included in the 1998 Rome Statute which set up the court, listing aggression crimes along with genocide, crimes against humanity and war crimes as one of the four grave crimes the ICC has jurisdiction over.

It is broadly defined as the use of force that manifestly breaches the United Nations charter and includes an invasion, a bombardment, port blockade or a country allowing a state to use its territory to attack a third nation.

WHAT WAS DECIDED?

Delegates decided that the Security Council, the ICC and states should all have a role in deciding whether an investigation into an act of aggression should take place.

But the compromise deal gives the court at least seven years before it would gain the authority to prosecute the crime of waging an aggressive war and it depends on further agreement between ICC member states before taking effect.

That agreement cannot take place before January 1, 2017.

WHAT ARE THE DRAWBACKS?

Allowing the ICC to prosecute state aggression risks involving the court in political disputes between states because a decision to go to war can be an inherently political decision.

Observers also say allowing ICC jurisdiction over aggression could arm critics who say the court is a political jurisdiction.

The United States, which is not a member of the court, is also wary its troops could be prosecuted for the use of force in trying to end war crimes the ICC is mandated to prosecute.

It has argued that there are uncertainties and ambiguities in the definition of the crime of aggression and that judges would find it difficult to reach a ruling.

Japan warned that the deal amending the Rome Statute that set up the court is based on a “dubious legal foundation” and raised concerns non-member states are shielded from being investigated.

Some critics say the court is too young to take on the political risks as it is still trying to fully establish itself.

WHAT ARE THE BENEFITS?

The deal gives a limited extension to the court’s reach by allowing it to prosecute the crime of waging an aggressive war.

Proponents said the deal avoided giving control to the U.N. Security Council over the court’s authority in respect to aggression crimes after earlier warning that giving the council control over such probes could reduce the court’s independence.

The deal also gives the court at least seven years to strengthen itself and prepare for its new powers.

Observers say the crime of aggression is based on well-established international law and if the ICC had the power to prosecute aggression this could serve as a strong deterrent.

Enabling the ICC to investigate aggression could benefit both powerful and weaker states by affording better protection against one state from being invaded while protecting a powerful state from being turned into an aggressor by criminal leaders.

While the court has the powers to prosecute war crimes, crimes against humanity and genocide, some observers say the court is incomplete if it does not have the jurisdiction to proseute state aggression, which often leads to war crimes.

HOW WOULD INVESTIGATIONS BE TRIGGERED?

The agreement stipulates that the U.N. Security Council would have first say in whether an investigation into an act of aggression should take place.

Other options at the Kampala conference for triggering an investigation had initially included a vote of the U.N. General Assembly, a ruling at the International Court of Justice in The Hague or a ruling handed down by ICC judges.

Eventually, delegates decided that either the Security Council, the ICC or state referral would have the power to trigger a probe.

WHAT NOW?

Member states will need to decide after January 1, 2017 on the entering into force of the court’s new jurisdiction.

But state parties can also “opt-out” of allowing the ICC to have jurisdiction by lodging a declaration with the court. States that opt-out must reconsider the declaration.

Source: Reuters
(Reporting by Aaron Gray-Block; editing by Philippa Fletcher)

Crusading judge who challenged Pinochet could be barred for 20 years after far right bring charges against him

To his supporters abroad, Baltasar Garzón is a hero, a legal crusader who has dared to investigate the abuses of right-wing Latin American dictatorships, starting with the 1998 arrest of Chile’s Augusto Pinochet.

To many in Spain, the 54-year-old high court judge, forever flanked by bodyguards, is his country’s gutsiest watchdog, the nemesis of drug lords, corrupt politicians and violent Basque separatists. But after two decades of crusading, Mr Garzón has also attracted criticism for what some see as his cavalier, headline-grabbing indictments, including one against Osama bin Laden. And now his detractors are having their day.

Mr Garzón was charged yesterday with abusing his powers by launching Spain’s first-ever investigation into Franco-era abuses – namely the forced disappearance of 114,000 victims on the losing Republican side of the war. In a 14-page ruling, Spanish Supreme Court investigating magistrate Luciano Varela charged Mr Garzón with recklessly violating a 1977 amnesty law that shielded members of the Franco regime from legal persecution.

“This is a sad day for justice,” said Emilio Silva, president of the Association for the Recovery of Historic Memory, which has led a volunteer drive to exhume the mass graves of Republican victims. In an interview on national radio, Mr Silva blamed the decision to prosecute Mr Garzón on the ultra-conservative leanings of the Spanish Supreme Court, which, he said, had failed to evolve since Franco’s time.

Mr Garzón is expected to face trial next month. If he is found guilty, he could be barred from the bench for up to 20 years. “I will continue to defend my absolute innocence,” he said last month when an appeal was rejected.

The lawsuit is one of three now pending against the judge, one of which takes aim at his corruption inquiry into the opposition Popular Party. It was brought before the Supreme Court by three extreme-right groups, including the Falange de las Jons, a modern splinter group of the Franco-era fascist party of the same name.

“It’s like the end of a farce,” said Francisco Espinosa, a historian who served on an advisory committee for the investigation. “The same people that participated actively in the failed coup of 23 February 1981 and in the repression under investigation are precisely the ones bringing the complaint, and the Supreme Court, instead of shelving it, gives the green light.”

One of the especially bizarre by-products of the lawsuit, Mr Espinosa added, is that the ultra-right groups now have access to reams of testimony by victims’ families. “There are families who have asked to withdraw their information before it falls into the hands of these people,” Mr Espinosa said.

Mr Garzón is expected to be removed from his judicial post until the verdict – to the delight of the high-ranking members of the opposition Popular Party he had been investigating and the satisfaction of his critics, who sarcastically call him the “super judge”. The conservative daily ABC described the saga as “the chronicle of a professional death foretold” – the logical result of many ego-driven investigations in which the judge supposedly “skidded on ice”. “Garzón isn’t going to get out of this one,” the Falange leader, Jorge Garrido, gloated to El País.

Many in legal circles are outraged, however, by what they consider an orchestrated attempt by the judge’s enemies to remove him from the bench. “If he is eventually suspended, it will be one of the most serious defeats for Spanish justice during the democracy,” Carlos Jiménez Villarejo, a former state anti-corruption prosecutor, said. Mr Villarejo has organised Garzón tributes throughout the country, which have attracted legal scholars, artists and intellectuals such as Nobel winner José Saramago.

Mr Garzón has used Spain’s “universal jurisdiction” principle to take on thorny – and diplomatically awkward – cases ranging from Argentina’s “Dirty War” executions to tortures at Guantánamo Bay. But he embarked on the most perilous investigation of his career in October 2008 when he rattled the ghosts of Spain’s bloody past. The crusading magistrate accused former dictator Francisco Franco and 34 of his former generals and ministers of crimes against humanity in relation to the 114,000 forced disappearances and ordered the exhumation of 19 mass graves.

At first, Mr Garzón was merely accused of opening old wounds and violating the so-called “pact of forgetting” that marked Spain’s peaceful transition to democracy. Under pressure from state prosecutors, he eventually passed responsibility for opening the graves to provincial courts (who have largely ignored the matter). But last year, anger at the investigation morphed into concrete form: the accusation of “prevarication,” or ruling with knowing disregard for the law.

Mr Garzón argued that amnesty laws do not apply to crimes against humanity, and several international human rights groups support that view. “We are truly scandalised,” Giulia Tamayo, head of research for Amnesty International in Spain, said. “The UN Commission on Human Rights has repeatedly warned the Spanish government that amnesty laws were not applicable to crimes against humanity, but the Spanish authorities continue to hinder the victims’ quest for justice and reparation. Now the only judge who wanted to abide by international law is being made to pay for it.”

“No other country has gone as far as to prosecute a judge that tried to investigate such crimes,” she added.

Mr Garzón’s defence had lined up a cast of international legal experts, including Carla del Ponte, former chief prosecutor at the International Criminal Court, and Eugenio Raúl Zaffaronni, the Argentine judge who in 2005 voided the country’s amnesty law. But the Supreme Court yesterday ruled that it would not admit their testimony. The defence is appealing against the decision.

But the people most upset are the families of the victims. Mr Silva’s Association for the Recovery of Historic Memory has petitioned the court for the right to participate in the criminal proceedings. “There are many families who are depressed because of what is happening to Garzón,” Mr Silva said. “When he is placed on the stand, thousands of men and women who are awaiting justice will sit beside him.”

source:  The Independent

In today’s International Herald Tribune, Candace Rondeaux and Nick Grono of the International Crisis Group argued that the International Criminal Court (ICC) should formalize their investigation of war crimes and crimes against humanity in Afghanistan, now that the Taliban’s military chief Mullah Abdul Ghani Baradar has been arrested in Pakistan. I believe formalizing such an investigation at this particular stage would be catastrophic in consequence, and would ultimately harm both the development of Afghanistan and the standing and status of the International Criminal Court.

While I support bringing perpetrators of mass atrocities to justice in an effort to end worldwide impunity, there are two critical issues missing from the authors’ analyses. First, the development of Afghan judicial and legal institutions should be seen as an opportunity for justice rather than a mere tragedy unfolding. And second, while the ICC is ideologically apolitical, independent, and led by a fierce Chief Prosecutor, Luis Moreno-Ocampo, the Court of last resort nonetheless operates with very limited capacity in a highly politically-charged world. Therefore, advocating for an official ICC investigation in Afghanistan, based largely on the capture of Baradar and an inexcusable amnesty law granting immunity to warlords and brutal extremists, fails to grasp the true mandate and resources of the ICC, coupled with the wave of complexities that would unquestionably follow such formalization.

The preliminary examination stage of the ICC is a critical moment for actors of all stripes in a nation to capitalize on global attention and advocate for the strengthening of domestic justice systems. Indeed, it is the prosecutorial strategy of the ICC to encourage genuine national proceedings as part of its’ operating principle of positive complementarity—ensuring respect for the international rule of law by creating an inter-dependent, mutually reinforcing international system of justice.

In the case of Afghanistan, and during the limited window of this preliminary examination period, coordinated pressure from both ends of the spectrum has the potential to catalyze massive positive change. Externally, and as part of their efforts to design and develop national judicial mechanisms with the Afghan people, the United States and its’ NATO allies, along with the United Nations, should exert strong international pressure on the Karzai government to repeal the amnesty law and charge Baradar domestically. Internally, an organized grassroots coalition of key NGOs and civil society actors in the business of accountability and human rights should demand justice at the local level, ultimately creating a pressure chamber to spark action. I understand that the system of justice in Afghanistan is more than a tweak away from enforcing or respecting the rule of law, but this moment of ICC intervention should be viewed as a springboard to developing Afghan justice processes domestically, and not viewed as an opportunity to reach for the hand of justice internationally in The Hague.

Equally important, but perhaps least understood, are the inevitable political ramifications to formally opening a case in Afghanistan. Aside from the limited manpower and resources of the Court, if a case is officially opened, the Prosecutor must deal with both allegations against the Taliban and NATO troops. While the former yields no grief, the latter will surely cause a stir. With American and NATO forces in the thick of quelling an insurgency, the ICC would be yet another thorn in the side of international troops in Afghanistan. That is not to say the ICC doesn’t belong—it does—but I fear a formal indictment of the country will do more harm than good, whereas capitalizing on the preliminary examination stage could push for the development and strengthening of domestic justice. It is national proceedings and internal justice that will produce the long-term benefit for Afghanistan and the Afghan people, and not an intensely difficult and futile investigation by the ICC prosecuting a single senior Taliban commander abroad.

The standing and status of the ICC is tested in a country like Afghanistan. Opening up a formal investigation will impeach international troops, including non-parties to the Rome Statute such as the United States. The preliminary investigation must be viewed as a strategic opportunity to catalyze domestic action, bring about international attention for the need to develop national judicial mechanisms, and strengthen relations with involved States who realize the tactical importance of this kind of intervention. We must recognize the pragmatic limits of the ICC’s reach and seek alternative routes that leverage the Court’s attention without over-extending its’ resources—towards the ultimate goal of bringing those responsible for mass atrocities to justice.

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source: Huffington Post

Dhaka Mar 22 (bdnews24.com) - The cabinet on Monday ratified the Rome Statute of the International Criminal Court, which sets international standards for prosecution of individuals who commit crimes against humanity.

“The ratification will prove that Bangladesh is determined to follow international standards to prosecute crimes against humanity, war crimes and genocide” the prime minister’s press secretary Abul Kalam Azad said.

Bangladesh signed the Rome Statute on July 17, 1998, the first country to do so in South Asia.

The statute, entering into force on 1 July 2002, is the treaty that established the International Criminal Court (ICC).

The ICC’s main purpose is to assist the international community in trying the most heinous international crimes: genocide, war crimes, and crimes again humanity. The official seat of the permanent tribunal is in The Hague, Netherlands, but its proceedings may take place anywhere.

But it remains a “court of last resort”, leaving the primary responsibility to exercise jurisdiction over alleged criminals to national legal systems. Under this system of ‘complementarity’, it will only act when national authorities are unable or unwilling to investigate and prosecute crimes.

Asked whether ratification of the statute by Bangladesh would help in the government’s upcoming prosecution of 1971 war crimes trials, law minister Shafique Ahmed earlier this week said ratification was necessary for prosecution of future instances of crimes against humanity.

The ICC can only prosecute crimes committed on or after the date it came into force. However, ratification of the statute calls on countries to adopt a number of actions, including bringing their own laws into line with its provisions.

The law minister last week confirmed that Bangladesh’s upcoming 1971 war crimes trials would be held under its recently amended International Crimes (Tribunals) Act 1973.

An expert panel of international lawyers, including a former war crimes prosecutor, submitted a legal opinion to the government last month, however, advising further amendments to ensure the 1973 Act meets international standards.

Among other recommendations, the lawyers advise that sections of the Rome Statute dealing with rights of suspects during investigations must be included in the Act.

As of October 2009, 110 states were party to the Rome Statute, and a further 38 states had signed but not ratified the treaty. The US, Sudan and Israel, once signatories, have ‘unsigned’ the statute.

source: Bangladesh News Online

The US has imposed a travel ban on a senior Kenyan government official for obstructing efforts to rid the country of corruption.

Johnnie Carson, the US state department Africa chief, said he was considering bans on three other officials - but declined to release any names.

Kenya agreed to carry through reforms after 1,300 people died in post-election violence last year.

But the US believes some officials have deliberately been blocking the reforms.

The BBC’s Will Ross, in Nairobi, says the US has to perform a balancing act when it comes to dealing with Kenya.

On the one hand Washington wants to exert pressure and help sideline some of Kenya’s more unsavoury politicians.

But the country is a vital ally in the region which the US relies on to help to dowse the flames of Islamist militancy in neighbouring Somalia, our correspondent says.

Sealed envelope

Mr Carson told reporters in Nairobi: “The US government has taken the decision to revoke the visa of a senior Kenyan government official.”

Without revealing names, he described the politician as a “senior government official of influence”.

He said the individual had “obstructed the reform process, failed to end the cycle of impunity and has been an obstacle in the fight against corruption”.

Last month Mr Carson sent a letter to 15 officials warning them they faced travel bans if they failed to support the “reform agenda”.

He urged Kenya to strengthen its institutions and eradicate corruption to avoid more violence after the next election in 2012.

A power-sharing government was eventually set up after weeks of violence following the December 2007 election, but it has struggled to restore stability.

Rights groups blamed the police for many of the deaths in the riots.

International mediators have pressed the government to set up a tribunal to investigate the killings, but officials continue to miss every deadline they are set.

In July, former UN chief Kofi Annan passed the names of those accused of orchestrating the violence to the International Criminal Court in a sealed envelope.

The list, drawn up by a Kenyan judicial commission, has not been made public.

from BBC News

15 October 2009 – The International Criminal Court (ICC) confirmed today that its prosecutor is looking into last month’s events in Guinea, where at least 150 people were killed when security forces opened fire on an opposition rally.

“A preliminary examination of the situation has been immediately initiated in order to determine whether crimes falling under the Court’s jurisdiction have been perpetrated,” according to a news release issued by the Court, which is an independent, permanent body that investigates and prosecutes people accused of genocide, crimes against humanity and war crimes.

The Court said that the Prosecutor’s Office has taken note of “serious allegations” surrounding the events of 28 September in the capital, Conakry.

“From the information we have received, from the pictures I have seen, women were abused or otherwise brutalized on the pitch of Conraky’s stadium, apparently by men in uniform” said Deputy Prosecutor Fatou Bensouda.

“This is appalling, unacceptable. It must never happen again. Those responsible must be held accountable,” she added.

Top UN officials have condemned the violent suppression of the 28 September demonstration which High Commissioner for Human Rights Navi Pillay has characterized as a “blood bath.”

Guinea has been a State Party to the Rome Statute, which set up the ICC, since July 2003. “As such the ICC has jurisdiction over war crimes, crimes against humanity or genocide possibly committed in the territory of Guinea or by nationals of Guinea, including killings of civilians and sexual violence,” the Court stated.

Other situations under preliminary examination by the ICC Prosecutor include Afghanistan, Colombia, Côte d’Ivoire, Georgia, Kenya, and Palestine.

Currently, four situations – the Central African Republic (CAR), the Democratic Republic of the Congo (DRC), Uganda and the Darfur region of Sudan – are under investigation by the Prosecutor.

originally from the UN News Centre

The government on Monday admitted that it would not keep the promise it made to the International Criminal Court to set up a local tribunal by September 30.

Instead, it will write to the ICC asking for more time to pass the law which will set up the tribunal.

This is the third time the government is failing to honour deadlines in bringing to justice those who masterminded the violence that erupted after the 2007 presidential election.

‘We have failed’

“Let us face the facts as they are; we cannot beat the deadline set by the ICC during our July 3 meeting. We have failed,” admitted Justice, National Cohesion and Constitutional Affairs minister Mutula Kilonzo.

At that meeting, the government committed to setting up the tribunal and provide information on witness protection and progress in investigations.

“On the other two, we have already achieved. But we have failed to convince the country to accept a credible judicial mechanism for trying the post-election violence perpetrators,” Mr Kilonzo said.

Parliament went on recess without discussing the Imanyara Bill, which proposes the establishment of such a tribunal. The Cabinet rejected a similar proposal by Mr Kilonzo.

Mr Kilonzo said although the Bill had received the Speaker’s consent, it was still not tabled. “Therefore, we haven’t fulfilled our obligation,” he said, adding that he would either write or call ICC prosecutor Luis Moreno-Ocampo to brief him on the new development.

“We will tell him sorry,” he said.

The minister did not seem too sure how he was going to get in touch with Mr Moreno-Ocampo, saying he had not decided whether to write or call him.

Closed chapter

He also seemed to have given up on a local tribunal, at one time saying he considered it a “closed chapter” and that the sooner Mr Moreno-Ocampo comes to Kenya, the better for the country.

Kenya has ratified and domesticated the Rome Statutes and the ICC prosecutor was free to come into the country. The Internal Security ministry had the power to extend such as invitation, said Mr Kilonzo.

A request for an extension of time is unlikely to be received warmly at The Hague.

In a statement on the ICC website, Mr Moreno-Ocampo said he wanted to make Kenya an example to the world on how to deal with impunity.

President Kibaki and Prime Minister Raila Odinga were to sign a pact for the formation of the tribunal by December 17, last year. After that, MPs were to have until January 30, 2009, to amend the Constitution and entrench the tribunal, which was to be up and running by March 1, 2009.

Kenya asked for more time until end of July, and later until September 3.

“The failure lies on the shoulders of the whole country and I cannot carry the baby alone,” Mr Kilonzo said.

He was speaking at a Naivasha hotel during an induction for members of the Truth, Justice and Reconciliation Commission (TJRC).

He told the team that the TJRC Act gave them the independence to do their work without interference.

Witch-hunting

“Universally, TJRCs are known to be very expensive. It is, therefore, expected that you will design a process and structures that are responsive of these facts,” the minister said.

The truth team is not an instrument of prosecution or witch-hunting, nor can it be a whitewash as the sceptics would want to suggest, he said.

Kenya has ratified and domesticated the Rome Statutes and the ICC prosecutor was free to come into the country. The Internal Security ministry had the power to extend such as invitation, said Mr Kilonzo.

A request for an extension of time is unlikely to be received warmly at The Hague.

In a statement on the ICC website, Mr Moreno-Ocampo said he wanted to make Kenya an example to the world on how to deal with impunity.

President Kibaki and Prime Minister Raila Odinga were to sign a pact for the formation of the tribunal by December 17, last year. After that, MPs were to have until January 30, 2009, to amend the Constitution and entrench the tribunal, which was to be up and running by March 1, 2009.

Kenya asked for more time until end of July, and later until September 3.

“The failure lies on the shoulders of the whole country and I cannot carry the baby alone,” Mr Kilonzo said.

He was speaking at a Naivasha hotel during an induction for members of the Truth, Justice and Reconciliation Commission (TJRC).

He told the team that the TJRC Act gave them the independence to do their work without interference.

Witch-hunting

“Universally, TJRCs are known to be very expensive. It is, therefore, expected that you will design a process and structures that are responsive of these facts,” the minister said.

The truth team is not an instrument of prosecution or witch-hunting, nor can it be a whitewash as the sceptics would want to suggest, he said.

“It cannot target particular communities or individual personalities, otherwise its purpose would be defeated,” he said.

Its job is to heal the wounds of the victims and reconcile the nation, he said and called on the international community to help. The induction was attended by TJRC chairperson Bethuel Kiplagat, his deputy Betty Murungi and other commissioners.

originally posted @ The Nation

The International Criminal Court Chief Prosecutor Moreno O’campo has proposed a three pronged approach to deal with the perpetrators of the post election violence that rocked Kenya after the announcement of the presidential election results on 30th December 2007.

Speaking at a meeting with Kenya’s Lands Minister James Orengo at the IC C headquarters in The Hague, Netherlands, O’campo routed for the creation of special courts to try those who committed the atrocities, as the ICC will deal only with those who bore the greatest responsibility of the violence.

He also added that the Truth Justice and Reconciliation Commission be used as an avenue to deliver justice through creating an enabling environment for confessions. He said through TJRC, many will seek forgiveness. The TJRC has been the preference of the political class, who are suspected to have been behind the violence.

In July, the Kenyan cabinet resolved to back the TJRC, contrary to agreements between the Kenyan delegation and O’campo that the Kenyan parliament sets up a special tribunal by the end of September 2009.

Orengo is at The Hague on the invitation of the Dutch Government for a human rights conference. Both Orengo and the ICC prosecutor addressed the conference, with the Kenyan lands minister presenting a paper on fighting impunity and peace building. He was part of the mediation team that came up with proposals of the formation of the Commission of Inquiry into the Post Election Violence, which proposed that the Kenyan parliament sets up a special tribunal to try those behind the mayhem, or the ICC takes over.

Currently, Kenyans and the international community await for the outcome of the Special Tribunal Bill that is being fronted by MP Gitobu Imanyara. The bill is currently at the publication stage. Two attempts by the government to set up the special tribunal have hit a brick wall, after the country’s parliament rejected the move.

originally posted @ Zimbabwe Metro

Today, the International Criminal Court held a ceremony to welcome the Republic of Chile as the newest State Party to the Rome Statute. The Statute entered into force for Chile on 1 September 2009, bringing the total number of States Parties to the Rome Statute to 109.

In a symbolic act held at the seat of the Court, the President of the Court, Judge Sang–Hyun Song, congratulated the Ambassador of Chile, H.E. Mr Juan Antonio Martabit whilst presenting him with a special edition of the Rome Statute. President Song welcomed the new State Party member: “Even as Chile sifts through its past, by joining the Rome Statute, it has made clear its commitment to a particular vision of a common human future. It is a future of accountability – a future of justice for war crimes, crimes against humanity and genocide”, said President Song.
In response to the President and while thanking him for his gift, Ambassador Martabit said, “I would like to emphasise that, although this achievement is the result of the efforts of many sectors of our society, it is most of all due to the personal interest of our President, Ms Michelle Bachelet, who considered the ratification of the Rome Statute a primary goal of her government.”

The ceremony was held in the presence of the Vice-President of the Assembly of States Parties and Ambassador of Mexico, H.E. Mr Jorge Lomónaco. The Vice-President of the ICC, Judge Fatoumata Dembele Diarra, the Prosecutor, Mr Luis Moreno Ocampo, the Registrar, Ms Silvana Arbia, and the judges of the Court also attended the ceremony.

Ambassador Lomónaco paid tribute to the Republic of Chile, remarking on the significant accomplishment of such a ratification in light of the history of Latin American countries in the twentieth century: “I
wish to express my genuine hope that other countries that have yet to join the Rome Statute family will be inspired by Chile’s example and reinforce our common struggle to end impunity”.

Whilst this is the first time that the ICC has organised a ceremony for such an event, it is envisaged that future ceremonies will also be held on the occasion of new States joining the ICC.

Speech of the President of the ICC, Judge Sang-Hyun Song

Speech of the Vice-President of the Assembly of States Parties, the Ambassador of Mexico, H.E. Mr Jorge Lomónaco

Speech of the Ambassador of Chile, H.E. Mr Juan Antonio Martabit

Video footage of the ceremony

10 September 2009 – Secretary-General Ban Ki-moon today expressed the continued support of the United Nations for the work of the International Criminal Court (ICC), which he said has become the “centrepiece” of the global criminal justice system since it came into existence only several years ago.
“The establishment of the International Criminal Court was a landmark in the efforts of the international community to enforce the applicability of international humanitarian law, and to advance the cause of justice and the rule of law on a universal scale,” Mr. Ban said in a message to the Consultative Conference on International Criminal Justice.

The ICC is an independent, permanent court that investigates and prosecutes people accused of genocide, crimes against humanity and war crimes, and is based on a treaty known as the Rome Statue. To date, 100 States are party to the Statute, which has nearly 140 signatories.

The efforts by the UN to further the causes of peace, development and human rights are closely connected to the work of the ICC, Mr. Ban noted, adding that the world body stands ready to do all that is needed to “facilitate the Court’s noble and important mission.”

In the message, delivered by UN Legal Counsel Patricia O’Brien, the Secretary-General pointed out the increased support for the idea that justice must be an essential part of post-conflict strategies to ensure a sustainable peace.

This could take the form of international accountability mechanisms, boosting national accountability methods, and setting up possible non-judicial forums such as Truth and Reconciliation Commissions, he said.

Since the Rome Statue entered into force in 2002, Mr. Ban said, “the activities of the Court and its Prosecutor have had a discernible effect on potential perpetrators of international crimes.”

Currently, four situations – the Central African Republic (CAR), the Democratic Republic of the Congo (DRC), Uganda and the Darfur region of Sudan – are under investigation by the ICC Prosecutor.

originally from UN News Center

UNITED NATIONS — The prosecutor for the International Criminal Court said Wednesday he is collecting information on possible war crimes by NATO forces and the Taliban in Afghanistan.

Luis Moreno Ocampo said he is also conducting preliminary inquiries on possible war crimes in Georgia, Colombia, Kenya, Ivory Coast, and by Israeli forces in Gaza.

Ocampo told a briefing on the emerging international criminal justice system that he plans to open four new investigations in the next three years, but he refused to disclose any details.

The International Criminal Court, which began operating in 2002, is the world’s first permanent war crimes tribunal. Afghanistan is one of the 110 countries that have ratified the Rome treaty which created the tribunal and are therefore legally bound by its provisions.

Under the treaty, the court can step in only when countries are unwilling or unable to dispense justice themselves for genocide, crimes against humanity or war crimes.

Ocampo said it has been “very difficult” to collect precise information about some of the alleged crimes, but his office has benefited from reports produced by non-governmental organizations who “arrived before us and provided information to us.”

He said he has requested information from human rights groups and groups inside Afghanistan as well as the Afghan government – and would be “very open” to information from foreign governments.

Taliban fighters have been accused of many brutal killings. There have also been some accusations of U.S. forces in Afghanistan using excessive force and torturing prisoners.

He confirmed that allegations involved both the Taliban and NATO forces.

The Clinton administration signed the Rome Treaty establishing the court, but the Bush administration rescinded the U.S. signature, arguing that the court could be used for frivolous or politically motivated prosecution of American troops.

Asked whether any NATO soldier is now a potential target of the court if he or she commits a war crime in a country under the court’s jurisdiction, he replied that NATO’s legal adviser was at the court’s headquarters in The Hague, Netherlands last week discussing this issue.

In the training NATO is doing, Ocampo said, it is explaining to colonels that in the future they could end up before the court if they commit atrocities.

“That is the most important (thing) because these massive atrocities are planned. So if those who are planning know they will be prosecuted, they will do something different,” he said.

reposted from the Huffington Post

Today’s New York Times report that the U.S. Justice Department is advising pursuit of prisoner-abuse cases and allegations of torture is a welcome development and a hopeful step in the restoration of respect for the rule of law in our country. The recommendation made to Attorney General Eric Holder by the Office of Professional Responsibility includes cases in Afghanistan that had been closed by the Bush administration - might these be some of the same cases that are being examined by the Office of the Prosecutor of the International Criminal Court (ICC)?  Attorney General Holder is making a bold and necessary move, and it will be fascinating to see how far the findings will lead up the chain of command of the Bush administration - perhaps to the “Decider” himself?

Prosecuting heads of state is always a tricky business fraught with political peril, as the ICC issuance of an arrest warrant for Sudan’s President al-Bashir clearly demonstrates.  But it’s good to bear in mind the most recent example of a successful prosecution of a head of state, that of ex-President Alberto Fujimori of Peru, convicted to 25 years in prison for committing human rights crimes while in office.  It was an arduous 17-year process for the victims, but they persisted during the dark years of the zenith of Fujimori’s power in the 90s, dogging him after he fled to Japan in 2000, and getting him extradited to Peru after he landed in Chile in 2005 to try to stage a political comeback.  His extradition to a prison in Peru was followed by loud and violent protests from Fujimori’s supporters, including the desecration of the Eye That Cries, a memorial to the 70,000 victims of Peru’s 20-year battle with Shining Path, but the trial went forward nonetheless.  It’s surprising that the trial of Fujimori has received so little attention from the international press - it marks a historical milestone not only for Peru but for the ongoing struggle to establish an effective international justice system, and it should be celebrated!  An excellent must-read book on the subject is Prosecuting Heads of State, an overview of efforts to bring rogue leaders to account which reveals some surprises, like the fact that since 1990 at least 67 former heads of state have been formally prosecuted for serious human rights violations or economic crimes committed during their administration. You can read the introduction to the book or order it at the website of the International Center for Transitional Justice (ICTJ).

** I’m twittering the hearing at: http://twitter.com/bechamilton for those who can’t catch the live webcast**

There is a hearing at the ICC this morning which may seem to be on an obscure legal point to the general public, but is actually of significance to the global system of justice established by the Rome Statute.

The hearing concerns a challenge to the admissibility of the case against DRC warlord, Germain Katanga.

Charges of war crimes and crimes against humanity, including murder and rape, were confirmed against Katanga by Pre-Trial Chamber I while I was at the court last year. His trial (jointly with Mathieu Ngudjolo Chui) is due to commence in September this year. However, in a motion filed in February, Katanga’s defense team (led by the impressive British barrister, David Hooper) are challenging whether the case against Katanga is admissible (re-stated in plain English: Does the ICC have the authority to hear this case or should his case be dealt with by the DRC’s judicial system?).

Under the system established by the Rome Statute, the ICC is a court of last resort. By design, the drafters of the Rome Statute decided that national judicial systems should have primacy, and only if these systems were unable or unwilling to conduct genuine investigations and prosecutions would the ICC come into play. In legal terms this is “the principle of complementarity.” In practical terms it means that the system established by the Rome Statute aims to encourage justice at the local level first - with justice being undertaken at the international legal only when the local system fails.

I personally think that complementarity it is a very positive design feature of the Rome Statute that is not nearly well enough understood by those who lump the ICC into the same category as the ad hoc tribunals for Rwanda and the former Yugoslavia (which do not operate on the complementarity principle). As ICC Prosecutor Luis Moreno Ocampo put it when he came to office: “The efficiency of the International Criminal Court should not be measured by the number of cases that reach the court or by the content of its decisions. Quite on the contrary, because of the exceptional character of this institution, the absence of trials led by this court as a consequence of the regular functioning of national institutions, would be its major success.”

So why then is the Prosecution fighting the Defense on the admissibility of this case before the ICC?

In essence it comes down to a fight over the meaning of the word “case.”  In this morning’s hearing I expect we will see the Prosecution argue that the case against Katanga was not being investigated or prosecuted by the DRC, and they will do so using the definition of the word “case” that Pre-Trial Chamber I established several years ago in Lubanga - Namely that a case involves the same person and same conduct:  “. . . for a case arising from an investigation of a situation to be inadmissible, national proceedings must encompass both the person and the conduct which is the subject of the case before the court.” (Decision of Pre-Trial Chamber I, 24 Feb. 2006, para 37). Therefore, the fact that the DRC were investigating Katanaga is not, in and of itself, enough to make the case inadmissible. It would only be inadmissible if they were also investigating him for the same conduct as in the ICC case.

By contrast, the Defense has argued in its submissions that this interpretation of the word “case” is too narrow. They also argue that the DRC authorities would have started looking at the conduct the ICC is now looking at if the ICC had not begun its investigation.

My view, for what it’s worth, is that given the Chamber’s definition of the word “case” in Lubanga, the Prosecution’s argument is solid as a matter of law. (Moreover, with my cynics hat on I have to wonder what’s the likelihood that a panel of Judges deciding they no longer have the power to adjudicate a case that they have already confirmed the charges in??).  However Hooper rarely makes a vacuous argument, and there are some policy consequences flowing from the Chamber’s initial decision to define the word “case” as narrowly as they did in Lubanga that Hooper is the first to really draw the Court’s attention to.

In short - for anyone interested in the balance of local vs. international justice, this hearing is worth paying attention to. You can see it livestreamed through the Court’s site from 10am (Dutch time) this morning in English or French.

re-posted by IJCentral from Bec Hamilton

I urge you to read Justice Richard Goldstone’s wonderful and concise overview of the state of international justice, published on the Op-Ed page of today’s New York Times. It provides an encouraging assessment of the remarkable progress that has been made on the international justice front, a reminder that all the efforts to cultivate international respect for the rule of law, spearheaded by a “mature global network of human rights organizations”, are bearing fruit and reining in the culture of impunity enjoyed by the most powerful violators of human rights.  Perpetrators of mass atrocities used to living by the rule of force and negotiating amnesties and personal benefits in exchange for peace are finding out that that route to retirement is no longer open for them - Charles Taylor is a stark example.  And the arrogance of Fujimori’s ploy to return to Peru for a presidential run, even though he was a fugitive from justice, led to his landmark trial that ended in a conviction and 25-year sentence for human rights violations.

Justice Goldstone is right to remind us all about the progress made in the quest for a world where justice and human dignity prevail.  Human rights activists and concerned citizens, often feeling beleaguered and powerless in the face of myriad conflicts, unbridled violence, and oppressive regimes, need to see that if we persevere there is light at the end of the tunnel.  Justice Goldstone was just awarded the MacArthur Award for International Justice, a well deserved recognition of his incredible career and accomplishments in advancing international justice, a list too long to enumerate in this post.  Skylight Pictures made a short film that honors Justice Goldstone’s role in the creation of an effective international justice system - it was shown at the MacArthur-sponsored award ceremony in The Hague on May 25, and you can see it here.

Now we have to get down to the business of bringing accountability for the abuses of rule of law and human dignity perpetrated during the Bush administration - No One Above the Law! And that includes President Omar al-Bashir of Sudan…

Angelina Jolie’s visit to the Thomas Lubanga trial this week at the International Criminal Court made the celebrity gossip press yesterday and the twittersphere, as several tweets popped up on the International Criminal Court (ICC) feed on the IJCentral map.  With six children of her own, it’s good to see her using her celebrity power to bring much-needed attention to the crime of recruiting child soldiers.  Angelina is very committed to the ICC and its justice mandate, and is very informed about the Court and its activities.  Last year through the Jolie/Pitt Foundation she sponsored a day-long symposium at the Council on Foreign Relations in New York, bringing together several luminaries of the international justice world to discuss U.S. policy toward the ICC.

There is actually a great latent interest in U.S. policy toward the ICC.  After every screening on the festival circuit of The Reckoning: The Battle for the International Criminal Court the first question audiences ask is “What is Obama’s policy on the ICC?”  We’ve found that audiences come out of the film feeling energized and looking for a way to get involved with the international justice movement.  The national U.S. broadcast of The Reckoning on PBS on July 14 (on the P.O.V. series) will be the launching pad for No One Above the Law, a campaign to generate support for global rule of law, and reengage the U.S. with the international justice movement.

What was the UN Security Council (UNSC) thinking when it issued Resolution 1593 in 2005, referring the ongoing situation in Darfur to the Prosecutor of the International Criminal Court (ICC)?  Prosecutor Luis Moreno Ocampo took the case, conducted a 20-month investigation, came back with evidence, and requested arrest warrants - he did his job, in accordance with the justice mandate of the ICC.  At briefings he has subsequently given every 6 months, he has updated the UNSC on the progress of the investigation.  After obtaining arrest warrants from the ICC judges for Sudanese government Minister Ahmad Haroun, Janjaweed militia leader Ali Kushayb, and President Omar al-Bashir, he has consistently urged the UNSC and the international community represented at the UN, to execute the warrants. Instead the UNSC has balked at following through, and the African Union and the Arab League have rallied to support al-Bashir. 

Now there is even the possibility that the Obama administration might consider appeasing al-Bashir, a disgraceful approach if it happens (I suspect that Obama’s desire for dialogue with Iran, with its ties to Sudan, would have something to do with a rapprochement with al-Bashir).  So what did the UNSC and the international community expect when they asked the Prosecutor to investigate?  Did they have any plan for what to do if he came back with evidence of crimes against humanity?  They don’t seem to have thought that far ahead, or simply issued Resolution 1593 for political expediency.  But now they must act - we as global citizens must pressure our leaders to uphold the rule of law.  If you live in the U.S., write to your congressperson and President Obama and let them know you want the ICC warrants to be acted upon!  And citizens around the world, IJCentral members, send an email to your Minister of Foreign Affairs urging them to support global rule of law!

At a recent post-screening discussion of documentary film “The Reckoning: The Battle for the International Criminal Court”, a Darfuri journalist said that amongst Darfuris, the surprise is not that the ICC issued an arrest warrant for President al-Bashir charging him with crimes against humanity in Darfur, or that al-Bashir expelled 13 humanitarian groups from the Darfur Internally Displaced Persons (IDP) camps. The real surprise for Darfuris was that humanitarian organizations and the international community seemed taken by surprise by al-Bashir’s actions after the warrant was issued. As the Darfuri journalist, Tajeldin Abdalla Adam from Radio Dabanga said, ICC Prosecutor Luis Moreno Ocampo publicly requested the warrants; al-Bashir publicly said he would retaliate; so why wasn’t the international community making preparations to respond to this and to preemptively pressure the Sudanese regime to curtail its actions? Al-Bashir and his National Congress Party have been at it for 20 years, presiding over the tragedy of southern Sudan (2 million victims), arming and giving safe haven to the notorious Lord’s Resistance Army of Uganda (20,000 victims, 1.5 million displaced), and now Darfur (200,000 victims, over 2 million displaced). How long are we supposed to wait? It is time for the international community to definitively isolate President al-Bashir, and make it clear to any of his potential successors that the rogue state tactics of the National Congress Party regime will no longer be tolerated.

Accountability is not something a constituency should have to beg from its government.  A lack of transparency and a paper trail of secrets is not something that people who fight for their country and defend their democracy deserve. Alas, these types of abuses of power and abstractions of the law have become so commonplace over the last eight years that it’s hard to remember where we started and how we got into this mess.

With the recent release of the Bush administration terrorism memos we are beginning to learn first-hand what many Americans and people around the world suspected had terribly gone wrong with this manipulation of governance.  During the aftermath of (JavaScript must be enabled to view this email address) the Bush administration decided it would be a opportune moment enact a complete deconstruction of social liberties and give itself the type of impunity only sought after by the types of despots and dictators that the American government has long vowed to dethrone and displace. 

In 1998 we saw the indictment of Augusto Pinochet by the Spanish Magistrate Baltasar Garzón for crimes against humanity. On April 7, 2009 the world saw former Peruvian President Alberto Fujimori found guilty of human right abuses and sentenced to 25 years in prison. Finally, on March 4th 2009 the ICC issued an unprecedented arrest warrant for sitting head of state Omar Hassan Ahmad al-Bashir on counts of crimes against humanity and war crimes. Obviously there is a strong trend afoot in the international community to stop the egregious abuses of power and the murder of innocent civilian populations under the threat of war. We are witnessing a gradual acceptance of an international rule of law, but there is still much momentum to be built.  Not that there hasn’t been an acceptance since the Nuremberg trials as a result of World War II or after the signing of the Rome Statue, but I mean the active and engaged acceptance that brings crimes to the surface of public opinion and furthermore its criminals to court.

In March a Spanish court has moved forward into opening an official criminal investigation against top administration officials in the former Bush administration including former Attorney General Alberto R. Gonzales and former Justice Department Lawyer John C. Yoo for allegedly violating international law “by providing the legal framework to justify the torture of prisoners at Guantánamo Bay, Cuba”.  This bold step is led by none other than Baltasar Garzón, and is a necessary beginning towards accountability for the United States. Although it may be unnecessary for the United States to have to export its alleged criminals, it does seem imminent that something must be done about them. The past eight years of American involvement in foreign and domestic politics has not only been an embarrassment but a potentially ruthless and criminal interpretation of the law and must not go unpunished.

Spain’s Attorney General has already encouraged Garzón to drop his investigation into the Bush administration and President Barack Obama has assured C.I.A. operatives involved in the torture described in the terrorism memo’s “that they would not be prosecuted for actions that their superiors told them were legal.”  Are the people of the United States going to step-up and make sure its leaders are accountable for their actions?  Are they going to vow against impunity and support a global rule of law?