IJCentral: International Justice Central

JERUSALEM — The Israeli military said Tuesday that it had indicted “a number of” officers and soldiers for their actions during Israel’s three-week offensive in Gaza in the winter of 2008-9, including a staff sergeant accused of deliberately shooting at least one Palestinian civilian who was walking with a group of people waving a white flag.

The announcement came nearly 18 months after the end of the war, and on the day that Israel’s prime minister, Benjamin Netanyahu, met President Obama in what many saw as a fence-mending visit after months of strained ties. A spokesman for the Israeli military denied any link between the timing of the announcement and the prime minister’s trip.

According to the army statement, the chief military prosecutor has decided to take disciplinary and legal action in four separate cases, including some already highlighted by human rights groups and by a scathing United Nations report on the war. The report, by a committee led by Richard Goldstone, a South African judge, was published in September 2009 and pointed to evidence of possible war crimes.

The offensive came as a response to years of rocket fire against southern Israel from Gaza, and after Hamas, the Islamist militant group, won elections in 2006 and took full control of Gaza in mid-2007. Up to 1,400 Palestinians and 13 Israelis were killed in the war.

Israel refused to cooperate with the Goldstone mission, arguing that the mandate was biased from the outset, and it rejected the report. It also resisted calls by Israeli and international human rights organizations for an independent Israeli investigation outside the military framework.

The staff sergeant accused of killing at least one civilian faces a manslaughter charge. Beyond that, the military said a battalion commander was indicted on suspicion of deviating from “authorized and appropriate” army behavior and from an Israeli Supreme Court ruling when he authorized a Palestinian man to act as a kind of human shield by entering a house where militants were sheltering in order to persuade them to leave.

The Goldstone report accused Israel of several cases of using Palestinian civilians as human shields during the Gaza war, a practice forbidden by the Supreme Court. The Goldstone report stated that such practices violated international law.

In a third case, the chief of staff ordered disciplinary action against an officer who ordered an aerial strike on a militant involved in launching rockets. The man was standing outside the Ibrahim al-Maqadma mosque, the army said, and the shrapnel caused what it called unintentional injuries to civilians inside. The Goldstone report said that an Israeli projectile struck near the doorway of the mosque, in northern Gaza, during evening prayers, killing at least 15 civilians who were mostly inside.

The military said that the officer had “failed to exercise appropriate judgment,” adding that he would not serve in similar positions of command in the future and that he had been rebuked.

In addition, the chief military prosecutor ordered a criminal investigation by the military police into an airstrike on a house that held about 100 members of the extended Samouni family in Zeitoun, a district of Gaza City.

That case stirred particular outrage around the world as Palestinian paramedics were prevented by Israeli forces from reaching the house for days after the strike. Red Cross officials then publicized their discovery of four emaciated Samouni children who had been trapped in the home with their mothers’ bodies. In all, up to 30 Samounis died.

The white flag episode has been widely publicized. According to Palestinian witness testimony gathered by Human Rights Watch, the Goldstone mission and others, a group of 28 Palestinian civilians from two families set out on Jan. 4, 2009, in the Juhr al-Dik area, south of Gaza City, trying to evacuate the area after their homes were shelled.

According to the witnesses, the group was fired on from the direction of some Israeli tanks. They said that Majida Abu Hajjaj, in her 30s, was killed while waving a white flag. Her mother, Rayya, was also fatally shot.

The Israel military said that it had been unable to match the testimonies of the Palestinians with those of dozens of soldiers and commanders questioned, but that the soldiers testified that on Jan. 5, 2009, a man was shot and killed in the same location.

The military determined that “the two events are apparently one and the same,” and that after reviewing the evidence, the military advocate general, Maj. Gen. Avichai Mendelblit, ordered that a staff sergeant be indicted on charges of manslaughter by a military court.

“This decision is based on evidence,” the military said, “that the soldier, who was serving as a designated marksman, deliberately targeted an individual walking with a group of people waving a white flag without being ordered or authorized to do so.”

In Gaza on Tuesday, Majed Abu Hajjaj, the son of Rayya and a brother of Majida, said that the opening of the military investigation was “an achievement in itself,” but he expressed doubts that the soldier would receive adequate punishment.

He added that the soldier’s imprisonment would not be enough. “What about the chief who refused to let us evacuate the bodies, and the driver of the bulldozers who buried them near the house and kept them there until the end of the war?” he said. “All of those should be prosecuted.”

Earlier this year, the military said it had reprimanded a brigadier general and a colonel for the firing of artillery shells that hit a United Nations compound in Gaza, and two Israeli staff sergeants were charged with instructing a 9-year-old Palestinian boy to open several bags the soldiers suspected were booby-trapped during the war. Another soldier was convicted of stealing a Palestinian’s credit card.

The military says that more than 150 cases have been examined since the campaign, and nearly 50 criminal investigations have been started.

Fares Akram contributed reporting from Gaza.

source: NYTimes

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.

Follow Rahim Kanani on Twitter

source: Huffington Post

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

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

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? 

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.