IJCentral: International Justice Central

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

They write on behalf of the Burma Justice Committee.

source: Democratic Voice of Burma

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).

The Reckoning: The Battle for the International Criminal Court is an epic, nail-biting account of the new International Criminal Court’s struggle to prosecute perpetrators — however powerful or concealed they may be — of crimes against humanity as the Court fights to establish its own credibility on the world stage. The film shows the lead-up to the court’s most recent and sensational action, the indictment of Sudan’s President Omar al-Bashir on March 4, 2009, for crimes against humanity and war crimes. Established by treaty in 2002 in response to the mass atrocities that stained the late 20th century, the International Criminal Court (known as the ICC) is the first permanent international criminal court created to seek justice for victims of genocide, war crimes and crimes against humanity. But the Court, given a historic mandate by its founding 100-plus nations, was not given a police force or other enforcement arm. Moreover, the ICC faces major obstacles in pursuing its mission from nations that did not join the treaty.

Paco de Onís, Peter Kinoy and Pamela Yates’ The Reckoning, an Official Selection at the 2009 Sundance Film Festival, has its national television premiere on Tuesday, July 14, 2009 at 10 p.m. on PBS during the 22nd season of P.O.V. (check local listings). The series continues on Tuesdays at 10 p.m. through Sept. 22, and returns with fall and winter specials. American television’s longest- running independent documentary series, P.O.V. is the recipient of an Emmy for Excellence in Television Documentary Filmmaking.

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…

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? 

“We haven’t waited 17 years to get justice…we’ve fought 17 years to get justice.”  This quote from Eduardo Gonzalez of the International Center for Transitional Justice is in reference to the victims and members of Peruvian civil society that have been struggling since 1992, without pause, to have Peru’s ex-President Alberto Fujimori face justice for the human rights violations perpetrated during his 10-year regime. We met Eduardo in 2002 when he was working with the Peruvian Truth & Reconciliation Commission, and Pamela Yates and I were scouting to make “State of Fear: The Truth About Terrorism”, the Skylight Pictures documentary about Peru’s 20-year “war on terror” with Shining Path, which covers the role that Fujimori played in gutting his country’s democracy in the name of security, committing the crimes that led to today’s guilty verdict and 25-year sentence.  Today is a big day for all Peruvians that want their country to be ruled by law, but Fujimori’s supporters will surely retaliate as they are a violent cohort.
It’s the first time a democratically elected Latin American president was found guilty in his own country of rights abuses, and Gisela Ortiz and Raida Condor (pictured here) deserve a lot of the credit for it, as they battled tirelessly for 17 years to see Fujimori face justice for ordering their brother and son killed in the La Cantuta massacre.  In Q&As for “The Reckoning: The Battle for the International Criminal Court” I often point to the example that Latin American civil society presents to the world: since the 60s and 70s, when the majority of the region was ruled by dictatorships, we have come to a present ruled by democracies.  It’s a remarkable achievement of what was considered to be an impossible task: namely, to have military leaders and politicians face justice for abuses committed against their own citizens.  To those who criticize the ICC arrest warrants charging Sudanese President Omar al-Bashir with crimes against humanity and war crimes, saying that it will be a setback for peace, I say look at Latin America and the role that the rule of law played in the continent’s transformation to democracy.