IJCentral: International Justice Central

SA leads the way in standing up against war criminals

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

source: Business Day

MADRID — Baltasar Garzón, the Spanish judge who attained fame for pursuing international leaders before Spanish courts, says he is confident his country will continue to pursue accused criminals worldwide whatever the outcome of his own judicial travails.

Mr. Garzón, who went after leaders like Augusto Pinochet of Chile, was himself suspended last month after being charged with abusing his powers to investigate Spanish Civil War atrocities.

“I believe the seeds have been sown, despite the possible contradictions of a country that investigates outside but cannot now investigate inside,” Mr. Garzón said in Madrid last week in his first newspaper interview in a year.

“The principle of universal jurisdiction has in fact germinated and is a conquest that cannot be lost and will not be lost,” he said. “However, as always happens with international justice, it’s about two steps forward, then one step back, then one forward and then two back — so we advance with a lot of difficulties. Why? Because there are a lot of interests at play — judicial as well as political and diplomatic.”

Mr. Garzón, 54, would not discuss his planned defense against the charges against him. Besides those relating to his controversial Spanish Civil War investigation, Mr. Garzón also stands accused in two separate cases, one over personal funding received from a leading Spanish bank and one over allegedly illegal eavesdropping as part of a political corruption investigation.

Mr. Garzón was indicted last April by Judge Luciano Varela for allegedly overstepping his authority and ignoring a 1977 general amnesty that covers crimes perpetrated during the Spanish Civil War. In October 2008, Mr. Garzón had launched a politically sensitive investigation into tens of thousands of deaths and disappearances during the war and the ensuing dictatorship of Franco.

The controversy over his jurisdiction had already forced Mr. Garzón to abandon the investigation within a month, but legal action was still taken against him by far-right activists. Mr. Varella’s decision was then upheld a month later by the body that oversees Spain’s judiciary, which decided to suspend Mr. Garzón pending his trial.

His suspension on May 14 marked an abrupt role reversal for Mr. Garzón, who established his reputation as an international defender of human rights by making extensive use of Spain’s doctrine of universal jurisdiction, which opens the door to prosecution within Spain of crimes committed outside the country. On the domestic front, meanwhile, he also fought against political corruption, as well as violence perpetrated by ETA, the Basque separatist group.

However his investigations have long made him one of Spain’s most polemic figures. Detractors have also questioned his motivations after his brief stint in domestic politics in the 1990s as a senior member of the Socialist party.

Although he was suspended as a judge pending the outcome of the cases against him, Mr. Garzón was given permission to work as a consultant to the International Criminal Court in The Hague.

Mr. Garzón said that he did not expect to stay in the Netherlands beyond December and that he was not considering another job switch should his legal problems worsen. If found guilty of knowingly contravening a 1977 general amnesty, Mr. Garzón could be suspended for as long as 20 years from the bench, which would effectively end his career as a judge in Spain.

Asked, however, whether he had harbored grander international ambitions, Mr. Garzón said: “I had not thought about this and I would lie if I said yes or if I said no. Until now my work here absorbed me fully.”

Mr. Garzón, who has targeted the United States because of accusations of torture at its Guantánamo prison camp, expressed optimism that President Barack Obama would reverse “sooner rather than later” a decision by the Bush administration not to join the International Criminal Court, which was set up eight years ago.

“The court can now function, but of course with the U.S. it would be a lot better,” said Mr. Garzón, adding that Mr. Bush’s decision had been “one of the worst moments for me.”

In The Hague, Mr. Garzón will use his experience “in cases that are similar to what I have dealt with in the context of fight against terrorism, organized crime and cases of universal jurisdiction.”

Representatives from the ICC’s 111 signatory nations are currently meeting in Kampala, Uganda, to review the court’s role and work. The court has come under criticism particularly for its slowness to bring cases to trial, but also recently over generous spending on its inmates and their visiting relatives. Asked for his own assessment of the court, Mr. Garzón said “this tribunal is still in complete development.”

He added: “To bring a case there is complicated, but I still think faster than in many countries.”

Mr. Garzón rejected suggestions that his crusade against human rights abuses had become too personal to be taken over by one or more of his lower-profile colleagues, should his legal problems put an end to his own career.

“Spain has had a preponderant role in terms of universal criminal justice and of course this leadership is now under question for obvious reasons, but there are ongoing cases and this movement isn’t just a question of Baltazar Garzón or not, but of all those who’ve been involved,” he said.

Still, Dolores Delgado, a leading Spanish prosecuting attorney who has worked closely with Mr. Garzón, said in a separate interview that his departure was a lasting blow.

“He was a pioneer who managed, from a small state, to ignite a concept of international justice that was dead until he started,” she said. “What happens now? He has left and it is very unlikely that another figure like him can emerge.”

source:  New York Times

An estimated 300,000 to 500,000 people died under his brutal reign of terror. Justice was never served. 80,000 of the country’s minority, named “bloodsuckers” by the tyrant, were expelled with 90 days to flee their property and possessions. Justice was never served. No, this is not al-Bashir’s Sudan. This is Uganda, and at the helm of hell was military dictator and President Idi Amin, who died in exile on Saudi Arabian soil in 2003. Following his 8 years as ruler of Uganda in the 1970s, Idi Amin spent 24 years unpunished, living seaside in the Kingdom. The rivers of justice ran dry as the former President soaked up the sun for more than two decades.

Back then, a system of justice that was unrestrained by geographical borders was merely an armchair exercise in intellectual idealism. Today, that very system is now permanent, global, and on the front lines of the justice business, gradually giving a resounding voice to the victims of the world’s gravest crimes. Much of the conversation surrounding international criminal justice focuses on the capacity, credibility, and complexity of the International Criminal Court (ICC). However, the system of international criminal justice depends on a much larger framework of international institutions, nation states, non-governmental organizations, regional courts, international law enforcement bodies, and new entities working toward the control of violence, the promotion of lasting security, and the manifestation of justice for the world’s gravest crimes.

We simply cannot let this newly minted system of accountability slip through the cracks of politics as usual or skepticism and doubt. If we do, the moral stride of humanity will have taken one step back, rather than two steps forward. And while this new global system of justice cannot call Idi Amin to account for the litany of crimes he committed, including the expulsion of my mother and father from Uganda in 1972, the mere presence and pursuit of this international structure is touching the lives of many millions of people around the world affected by those engaged in truly heinous crimes.

The Consultative Conference on International Criminal Justice could not come at a more critical moment on the continuum of ending impunity and global cooperation in addressing mass atrocities. Convened by the Hauser Center for Nonprofit Organizations at Harvard University and sponsored by the MacArthur Foundation, members of the Steering Committee also include the International Criminal Court’s Office of the Prosecutor, the Coalition for the International Criminal Court and the International Center for Transitional Justice. The 3-day conference hosted at the United Nations Headquarters September 9-11 is bringing together 150 high-level participants including the world’s international justice experts, diplomats, scholars, jurists, and civil society actors to openly consult and better align strategies for the next three years. Landmark in nature, this is the first effort of its kind to strengthen the global system of international criminal justice.

Currently, there are four active investigations before the ICC, each with outstanding arrest warrants: Uganda; the Democratic Republic of Congo; Darfur, Sudan; and the Central African Republic. In addition, the Court also has several situations under analysis, including Colombia, Afghanistan, Georgia, Kenya and Cote d’Ivoire. Entrenched within these investigations, discussions and debates run the threads of local justice versus international justice, enforcement politics and State obligations, perceived biases towards the African continent, and last but not least, the complex relationship between the humanitarian community and the International Criminal Court.

With a number of outstanding arrest warrants and many more countries on the cusp of becoming active ICC investigations, the system of international criminal justice is at a crossroads and in need of stronger alignment amongst its actors. The time is now to understand and continue building a synergistic system that guides the agendas of many towards common goals.

At this defining moment, The Consultative Conference on International Criminal Justice aims to address these issues from the multitude of angles through which international criminal justice is perceived, strengthened, and dependent upon. Presenters include the Prosecutor, Registrar, and President of the International Criminal Court; Chief Prosecutor of the International Criminal Tribunals for the Former Yugoslavia and Rwanda (‘94-‘96); Ambassadors of Mexico, Kenya and Tanzania to the United Nations; Commissioners of the African Commission on Human and Peoples’ Rights, the Inter-American Commission on Human Rights, and the Kenya National Commission on Human Rights; Executive Director of Human Rights Watch; President and CEO of Save the Children; President of the Supreme Court of Justice of Colombia; and the Democratic Republic of Congo’s Minister of Justice, among many others.

Crediting Canada with saving their lives, my parents had faith that such forced resettlement from Uganda would ultimately bear its fruit one day. “This was a blessing in disguise,” my father said, examining the last 37 years. Others were not so lucky.

Back then, we could rationalize injustice and inaction by the international community because we lacked a common framework, permanent global institutions, and other enabling tools to save the world’s most vulnerable populations. Today, these ideas are being put into practice, testing the will of humanity to fight for justice. Let us not fail this test, for if we fail, this article will be reprinted with only a handful of words changed—the main one, of course, would be replacing the name of President Idi Amin with President Omar al-Bashir. With the Arab League in support of the Sudanese president, not even the exile haven of choice would change.

originally from the Huffington Post

It was day one of the defense’s case.  I was in Chicago.  I had planned to wake up at 2:30 AM and watch over the Internet as Charles Taylor’s defense team laid out their case in The Hague at the Special Court for Sierra Leone.  But I had overslept.

When I woke up around 9:00 AM I ran to my computer, but the lawyer had wrapped up for the day.  I read some news articles online and learned the basics: Defense would argue over the next months that Taylor, the former president of Liberia, was a peacemaker for Sierra Leone, and that the prosecution had not proved his criminal responsibility for aiding Sierra Leonean rebel groups that committed war crimes and violated international law.

But I wanted more.  How, exactly, would the defense argue Taylor was a peacemaker?  What did the defense see as the principal weaknesses in the prosecution’s case?  I checked the Special Court website, but I knew the day’s transcript would not be up for at least a week.

So I did what hundreds of people around the world did that day: I went to The Trial of Charles Taylor blog.  The site, run by the Open Society Justice Initiative, provides detailed daily summaries of trial testimony.  A few hours later the summary was up.  I learned that the defense would argue the prosecution had corrupted witnesses with excessive compensation for testifying.  They would argue that Taylor was too busy fending off domestic attacks to spend time micromanaging a war in Sierra Leone.  I learned that before the judges entered the courtroom, Taylor’s lead lawyer had held up a sign to the gallery that said “Charles Taylor is innocent.”

The Open Society Justice Initiative is significantly enhancing the Special Court’s outreach on the Taylor trial.  What are the implications of a non-governmental organization performing such a crucial function for this hybrid international-domestic court?

Addressing outreach challenges

Tracey Gurd, legal officer with the International Justice program at the Open Society Institute, sees two challenges that international courts and hybrid courts (such as the Special Court) face that domestic courts do not.  First, trials often do not take place in the country where crimes were committed.  Second, ensuring that the court’s work is locally owned can be difficult.

The Trial blog addresses both of these issues.  Alpha Sesay, a Sierra Leonean lawyer, is the trial observer and blog coordinator.  He said he creates the daily summaries by listening for testimony that touches on the charges in the indictment. The summaries reflect a comprehensive understanding of modern West African history, and the main actors in Sierra Leone’s war.  Sesay said the fact that he is Sierra Leonean, “brings more legitimacy” to his summaries.

Dialogue platform and tool for reporters

The Trial blog began as a tool to bring, “timely, accurate, and independent information about the trial from The Hague into the hands of regional journalists,” Gurd said.  Summaries become the basis of news reports and radio discussions.  But to Gurd’s pleasant surprise, the site has evolved beyond this initial goal.  It has become a platform for lively opinion exchange.

It is not uncommon for a daily summary to get more than forty comments.  Debates have centered on the viability of evidence and witness motivations.  Commenters ask why Taylor, and not others, is being charged.  Periodically Gurd addresses these issues in posts to the blog.  She thinks the diverse opinions are what make the blog so lively.  “There are those who support Charles Taylor and think he has been unfairly singled out for trials, through to those who are convinced he should be convicted even before the defense has finished its case,” Gurd said.

The Special Court agrees that the site has been enormously valuable.  “This has been one of the most reliable sources for independent information about the trial for Liberian and Sierra Leonean journalists,” said Solomon Moriba, an outreach and press officer with the Special Court, noting that most West African media institutions cannot afford to assign a reporter to The Hague. “If you read some of the papers in Sierra Leone and Liberia, they have mostly published what is available from the [Trial blog],” he said.

Too successful?

I asked Sesay and Gurd if there was a danger in Open Society’s success.  What if future international courts decide not to budget sufficient funds for outreach on the assumption that NGOs will fill the gap?  Both gave similar answers: there is need for complementary outreach through courts and civil society.  Gurd notes, though, that there is a danger international courts will undervalue the need for outreach, whether or not NGOs are doing outreach work.  She said the Extraordinary Chambers in the Courts of Cambodia, set up to prosecute leaders of the Khmer Rouge, today relies almost entirely on NGOs for outreach.  “This is not sustainable,” Gurd said.

The day Taylor began testifying in his own defense I woke up with my alarm at 2:30 AM and watched him take the stand from my dark living room in Chicago.  This strategy also was not sustainable, as waking up that early proved terribly painful.  Along with Sierra Leoneans, Liberians, and others around the world, I have come to rely on The Trial of Charles Taylor blog to highlight important testimony.

“It is not enough to just put someone on trial and expect that justice has been served,” Sesay said.  “The people affected by the crimes must feel engaged and must feel part of the justice system.”

Shelby Grossman recently worked for one year with a human rights organization in Liberia. She has written articles as a freelance reporter from Turkey, Uganda, and The Hague, where she wrote about apathy toward the Taylor trial. Currently, she is a first-year graduate student in the Department of Government at Harvard University. She can be reached at (JavaScript must be enabled to view this email address).

orginally posted at The Hauser Center

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…

Much hay has been made since the ICC announced the arrest warrants for Sudanese President Omar al-Bashir, about the fact that the warrants were issued for crimes against humanity (5 counts) and war crimes (2) but not for genocide, the third category of crime that Prosecutor Luis Moreno Ocampo had included in his request for the warrants on July 14, 2008.  Many people that I respect in the international justice field have seized on this decision by the ICC judges as if it represents some kind of a failure for the Prosecutor because they thought he should not have accused al-Bashir with genocide in the first place, or because they thought it was too controversial, or are disappointed that the judges decided against issuing a warrant for genocide.  Aren’t these critics satisfied with crimes against humanity and war crimes?  Here’s the definition of crimes against humanity from the Rome Statue, the founding document of the ICC:

“Particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. Murder, extermination, torture, rape, political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of falling into the category of crimes under discussion.”

Whatever the reasons, it really feels like splitting hairs, or finding the negative in what I see as huge positive step forward for humankind.  We finally have a Court that is capable of issuing arrest warrants for a sitting head of state - that’s amazing.  As former ICC Senior Trial Attorney says in the film “The Reckoning: The Battle for the International Criminal Court”, the Sudan/Darfur case is the kind of case the Court was made for, to hold leaders of countries to account when they commit war crimes, crimes against humanity and genocide.  As the Prosecutor said at the press conference last week announcing the warrants, the judges considered his requests and decided not to issue the warrant for genocide - this shows a well functioning and independent court, where the judges don’t simply rubber stamp what the Prosecutor gives them.  One of the judges had a dissenting opinion, but the other two decided against - the Prosecutor said he would review their arguments against and perhaps file an appeal.  So let’s focus on the positive aspects of what the ICC is doing, and provide constructive criticism when appropriate.

A genocide charge may not be hanging over al-Bashir’s head at the moment, but crimes against humanity and war crimes are, and let’s focus on that.

I am troubled by a persistent current of thought regarding ICC Prosecutor Luis Moreno Ocampo’s call for the arrest of the President of Sudan, Omar al-Bashir, on charges of war crimes, crimes against humanity and genocide.  Judges at the ICC are currently considering whether to issue the warrants, and based on leaked information that was published in the Washington Post (now taken down from their website after the ICC Public Information Office denied that warrants had been issued), I suspect that the judges will issue warrants charging al-Bashir with war crimes and crimes against humanity, but not genocide.  In any case, those who say that the warrants for al-Bashir should be suspended or retracted if they are issued are putting forth the worn-out argument that the international community is treading on thin ice and may provoke a violent backlash from al-Bashir, thereby derailing the peace process in Sudan (What peace process? Can they be serious?).  A good example of this is an article from the Guardian UK by Paul Adrian Raymond, quoting Alex De Waal of course, saying that al-Bashir will lash out, that Africa will retreat from international justice and become a “universal jurisdiction free zone”.  These arguments claiming that justice is an idealistic folly of human rights advocates are on the wrong side of history.  I was raised in Latin America in a time when dictators ruled and they were considered untouchable.  But civil society persevered, often mocked for their “futile efforts”, and now 30 years later, lo and behold, generals went to prison, dictators were put on trial, and Latin America is practically a dictator-free zone.  Justice played a crucial role in this transformation, and the establishment of the rule of law has become a given in most Latin American societies - witness the ongoing trial of ex-President Alberto Fujimori of Peru, now in the dock facing charges of human rights violations in his own country.  I think that eventually the rule of law will prevail in Africa as well, and if the ICC helps it get there, it will be fulfilling its justice mandate.  I don’t buy the Alex De Waal argument - I think that the majority of Africans want the rule of law to prevail, regardless of what their leaders may say.  Power doesn’t like limits, and the ICC is a threat to those who would prefer to operate with impunity, but I think that the impunity gap will be closed.  And as ICC Deputy Prosecutor Fatou Bensouda says, “Africa is at the vanguard of international justice”.  Africa is the continent with the highest number of countries that are members of the ICC, and it’s good to remember that Prosecutor Moreno Ocampo did not initiate the ICC cases in Africa - Uganda, the DR Congo and the Central African Republic are all ICC member states, and they referred themselves to the ICC, and the Sudan/Darfur case was referred to the ICC by the UN Security Council.  So these charges that the Prosecutor has targeted Africa have no foundation - these conflicts in Africa are real, and accountability must be pursued or there will never be peace.

A sad farewell to exemplary human rights defender, activist, author of the definitive tome on the Rwandan genocide, and international justice advocate Alison Des Forges, who died in the Continental plane crash in Buffalo on February 12.  She was an extraordinary and dedicated person, with profound insights on the human condition.  We had the privilege of crossing paths with her several times during the making of The Reckoning, and she will be sorely missed by all.  Read more on her life in the NY Times obituary - she will live on in our hearts and her life will always be an inspiration to present and future human rights defenders.

Senegal’s President Abdoulaye Wade says that he wants to hand over former President of Chad Hissene Habre over to the the African Union (AU) to face trial for crimes against humanity.  Habre is accused of killing 40,000 and torturing 200,000 during his 8-year reign, which would definitely make him an International Criminal Court (ICC) case, but for the fact that his alleged crimes were committed before the temporal jurisdiction of the ICC went into effect in July 2002 (Habre fled to Senegal after his regime collapsed in 1990).  Of course, as Reed Brody of Human Rights Watch says, the AU is not a state and has no capacity to try Habre.  Senegal’s President Wade says he doesn’t have the resources to create a special court and put Habre on trial, and doesn’t want to hand him over to Belgium where a court has sought his arrest based on universal jurisdiction, because he doesn’t want to see an African leader tried outside of Africa.  This whole jurisdictional mess points out the value of having a permanent ICC in place.  If Habre had committed his crimes after 2002, he would be in the sights of the ICC, as President Omar al-Bashir of Sudan is now.  Because of the circumstances, a universal jurisdiction case from a domestic national court such as the one opened in Belgium against Habre seems to be the only option, but the world of international justice will have a lot more clarity when all countries have ratified the ICC and it has universal jurisdiction based on the consensus of an international treaty, the Rome Statute.

An excellent blog post by Raj Purohit and Amjad Atallah in the PSA blog, titled “International Justice Systems and the Muslim World: Why Bashir is Wrong” points out the absurdity of the argument saying that Sudanese President Omar al-Bashir should not be indicted by the ICC because it is acting as a tool of the west in its fight against the Muslim world.  Let’s not overlook the fact that the people targeted in Darfur by the al-Bashir regime are Muslims, so this argument doesn’t hold much water.  To the argument that if Israel is not charged with war crimes because they are protected by major powers, then Sudan shouldn’t be charged either, the authors say,“There is an obvious absurdity to the argument that as long as anyone can commit a war-crime, everyone should be allowed to commit a war-crime.” 

The problem of Israel’s conduct raises the issue of UN Security Council reform, because as long as the major powers can exercise veto power over resolutions, it is highly unlikely that a resolution will be passed asking the ICC to investigate Israel for committing war crimes.  And Middle Eastern countries should follow Jordan’s lead and join the ICC, because if Lebanon were a member state of the ICC in 2006, for example, it would have allowed the ICC to open a case against Israel.  As pointed out by the Costa Rican representative at a recent meeting of the UN Security Council regarding the Sudan/al-Bashir case, Costa Rica joined the ICC to gain some measure of protection from aggression by larger states with firepower, reasoning that the rule of law could be their shield.

If the evidence gathered by the ICC holds up, then al-Bashir, as well as Sudanese Minister for Humanitarian Affairs Ahmad Haroun and Janjaweed militia leader Ali Kushayb, both indicted by the ICC, they will someday be convicted of orchestrating a genocidal campaign to drive the people of Darfur from their land and into extinction.  Unlike the temporary ad-hoc tribunals for the former Yugoslavia and Rwanda, the ICC is a permanent court and will still be here after leaders like al-Bashir fall from power.  I’m convinced they will face their day at the Court.

Last night Robert Redford inaugurated the Temple Theater at Sundance 09, a truly state of the art venue where documentaries will shine.  The inaugural film was “Reporter”, which follows NY Times columnist Nicholas Kristof on a journey through the Congo in 2007, and examines the role that journalism plays in bolstering democracy and ultimately the protection of human rights and justice.  The Sundance 09 documentary slate has a strong emphasis on films about civil liberties, international justice, and human rights, often on a global scale with films like “The Reckoning” and “Sergio”, and in a more national US context, “Shouting Fire: Stories from the Edge of Free Speech” and “William Kunstler: Disturbing the Universe”, and panels like “Blueprint for Hope” moderated by Paul van Zyl of the ICTJ and “The New Documentary Movement: Emerging Technologies and Participatory Culture” where IJCentral will be officially launched.

Welcome to IJCentral - we’ve been working for months developing this platform for a global conversation about international justice.  During the 3 years we spent on 4 continents filming The Reckoning: The Battle for the International Criminal Court, we realized that there are thousands of people who have a lot to say about mass atrocities and impunity and the role that justice should play in moving a society from the horrors of violent conflict to peace and stability, and there are as many opinions as there are voices.  Most of these voices are never heard outside their local milieu - we have a included some of them in The Reckoning, but at IJCentral we hope that the conversation will expand and be ongoing and that through this process we will all contribute to an effective international justice system.  Through the grassroots movement we aim to build through IJCentral, working in tandem with a range of strategic partners reachable through this site, we will let our leaders know that we want international justice to work, that it’s time to get serious about ending genocide, and it’s time to exercise the political will to support the mandate given to the International Criminal Court in its founding treaty, the Rome Statute.

You can reach us through Twitter text messages or posts from their site if you ‘follow’ IJCentral and put ijcentral in your message.  You can also comment on the IJCentral blog, and send us emails at ijcentral@ijcentral.org.  In the coming weeks and months we will be rolling out FrontlineSMS “listening” posts in various countries with our local NGO (non-governmental organizations) partners, starting with Uganda, so that people from those areas can become part of the IJCentral community and voice their concerns and opinions through SMS text messages, and the community will be able to respond to them.  If you’re on Facebook, join our Facrbook group “The Reckoning: The Battle for the International Criminal Court” where we will be posting updates about The Reckoning, including screenings around the world.

We welcome all constructive thoughts and opinions on the rollout of IJCentral - this is the beta version, and there is much work to be done.