Casas de la Memoria to Conviction?

From “casas de la memoria” in Guatemala, Peru, and El Salvador to an upcoming international colloquium in Spain entitled “From Past to Future: Memory and the Process of Transition,” the development of collective memory – an enduring and shared memory of events – is taking center stage as one path toward healing the wounds of a tattered national conscience and preventing the recurrence of mass atrocities. But to what extent is collective memory compatible with judicial systems, which tend to be very individual-centered?

An annual online symposium co-hosted by Opinio Juris and NYU Journal of International Law and Politics (JILP) that went live this morning is exploring this very question. The focus of the symposium is The (Re)collection of Memory After Mass Atrocity and the Dilemma for Transnational Justice, my article that was recently published in Volume 47, Number 4, of NYU JILP.

The impetus for this article arises from the challenges I encountered in working with survivors of mass atrocity. The indivisibility of their memory struck me, as did the healing and bonds it generated. As I began to examine the literature on collective memory, I realized that I was not alone in this observation. Scholars from disciplines ranging from sociology to clinical psychology have written about and documented collective memory and its cathartic effects.

My article explores the tension between the preservation of collective memory and another impulse that follows mass atrocity: the desire for justice. Because many judicial systems are heavily influenced by notions of individualism, they are by design ill equipped to accommodate collective memory. Traditional rules of evidence and professional conduct often exhibit a single-minded focus on individual representation by replicating models that assume one client who autonomously makes legal decisions without consulting his or her community. Bound by these rules, attorneys must disrupt or even dismantle collective memory, thereby retraumatizing their clients.

In this article, I offer an alternative. I believe that human rights attorneys should instead endeavor to preserve and promote collective memory. For that reason, I urge a fundamental rethinking of the law’s preference for individual memory in the context of transitional justice. I believe that the inclusion of collective memory would better serve the goals of transitional justice by facilitating a more complete understanding of the collective harms of mass atrocity and possibly advancing reconciliation.

Today and tomorrow, Opinio Juris will feature comments on my article from four distinguished scholars:

Mark A. Drumbl is the Class of 1975 Alumni Professor of Law and Director of the Transnational Law Institute at Washington & Lee University.
Naomi Roht-Arriaza is Distinguished Professor of Law, University of California, Hastings College of Law (and a fellow IntLawGrrl!Ed.).
Ruti Teitel is Ernst C. Stiefel Professor of Comparative Law at New York Law School.
Johan D. van der Vyver is the I.T. Cohen Professor of International Law and Human Rights, Emory University School of Law.

Tomorrow, I will respond to their comments. I welcome you to join the conversation by posting your thoughts here.

Sexual and gender-based violence in the Colombian conflict should not get a raw deal before the International Criminal Court

In 2014 an average of two women were raped every three days in the course of the armed conflict in Colombia. Sexual and gender-based violence is a systematic and widespread phenomenon. Yet to date there have been very few convictions for sexualized violence – especially in cases in which the perpetrator was a member of the armed forces. By failing to act, the Colombian state is denying women the protection against sexualized crimes and access to justice that it is obliged to guarantee under national and international law. The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) in The Hague has to date failed to include a comprehensive gender perspective into its assessment of the Colombian conflict. In its Interim Report on the Situation in Colombia from November 2012, the OTP acknowledged that between 2002 and 2008, members of the Colombian army deliberately killed thousands of civilians (so called “falsos positivos” cases) and classified them as crimes against humanity. The OTP also noted that rape and other forms of sexual violence can be attributed to state forces, paramilitaries and guerrilla. Regarding state forces, however, the OTP thus far considered sexual crimes only as war crimes. It remained silent on the question of whether sexual violence committed by the state forces could amount to crimes against humanity.

A comprehensive legal analysis of a conflict situation under international criminal law requires an adequate narrative of the conflict, which necessarily involves a gender perspective in order to detect and avoid patriarchal ways of applying international norms and international criminal law. The new Policy Paper on Sexual and Gender-Based Crimes (PP) by the OTP of the ICC provides a helpful tool for applying these norms without reproducing gender inequalities. The content of the PP is the achievement of long-term lobbying by feminist activists and academics and is based on a liberal rights-based approach of feminist theory. In the PP, the OTP announces its intention to integrate a “gender perspective” and “gender analysis” at all stages of its work, terms, which, however, remain rather vague. Prosecutor Fatou Bensouda recently acknowledged, “an important aspect of challenging the culture of discrimination that allows sexual and gender-based crimes to prevail is the effective investigation and prosecution of those most responsible for such heinous crimes.”

Therefore, the OTP should start implementing its PP in the Colombian case. This could have a substantive effect on preliminarily examinations in general, and on evaluating command responsibility and the admissibility criteria in particular. Continue reading

The government of Sudan, the bombing of civilians, and the silence of the international community

The recent elections in Sudan call into question the legitimacy of the government soon to be re-elected. Even if the elections had been free and fair (which they have not), the government’s legitimacy would be challenged unequivocally by the fact that the very same government currently being re-elected into power is authorising the continual and systematic bombardment of civilians who are technically part of its polity.

On average, the Sudanese government has dropped three bombs a day on rebel held territory in its Southern Kordofan and Blue Nile States since April 2012. The impact of this bombing campaign on those living in the area has been devastating. Not only do the bombs often kill or maim civilians, but they also coincide disproportionately with planting and harvesting cycles, as well as market days, suggesting a deliberate strategy to decimate livelihoods. Yet despite the disruption to the local economy, the government of Sudan refuses to allow humanitarian access to these areas, citing fears that aid would be used to support rebel fighters.

As a result, 1.7 million people – roughly half of the population of the two states – have been displaced. Those who have remained, live with the daily threat of aerial bombardment, of government land forces breaking through the rebel Sudan Peoples’ Liberation Movement–North (SPLM-N) frontline, and a chronic lack of food and medicine.

A report released today highlights the voices of civilians living in the midst of this conflict. It emphasises the devastating impact of the conflict on every aspect of people’s lives. But it also talks of the resilience and resistance of those who are living through it. Despite unrelenting attacks against them, local organisations and activists have taken it upon themselves to educate the population about the means of surviving Antonov[1] attacks, in particular by digging foxholes and learning when and where to take cover.

This resilience, in many respects, is fuelled by defiance: many people have remained in Southern Kordofan not only because the alternatives are bleak (most of those who have been displaced have fled to South Sudan, itself in civil conflict), but because they see their ongoing presence as a form of resistance to a state they believe is trying to destroy them. As a result, many aspects of day-to-day life continue in rebel held areas of Southern Kordofan, as evidenced by children going to school and markets functioning (albeit under the daily threat of bombing and with chronic shortages.)

Furthermore, the extent to which the current government of Sudan is seen to lack any form of legitimacy is reflected by the fact that civilians are putting their faith in alternative structures of government. The rebels have recently set up a civilian administration in conjunction with the military structures that already exist, which the findings in the report demonstrate are broadly accepted by the civilian population. Civilians hope that this administration will eventually create an alternative, inclusive form of governance – in contrast to those of the Sudanese state, which they see as highly exclusionary.

However, it is important not to over-romanticise this resilience which, not surprisingly, is being severely depleted. The population’s efforts have certainly helped to minimise civilian casualties and allowed many people to remain in Southern Kordofan despite the substantial impact of the conflict. But their ability to survive is also being worn away by the continuing onslaught.

While primary responsibility for what is taking place lies with the government of Sudan, it seems unlikely that they will end their military campaign in the foreseeable future – and certainly not without considerable coercion from the international community (or at least certain parts of it). But the international community has remained, for the most part, silent.

Courageous local organisations and citizen journalists have been reporting on the intolerable circumstances in which civilians live in Southern Kordofan. Yet these organisations remain limited in their external reach. Indeed, civilians caught up in this conflict are struggling to have their voices heard – or rather, heeded. With the government of Sudan blocking independent media and international organisations from the field in a deliberate effort to cover up the consequences of the violence, there is both insufficient awareness at the international level about what is taking place, and a failure to mobilise around what information is available, with reports from NGOs regularly being dismissed as biased.

One of the strongest messages that came through the research was that those living in Southern Kordofan do not want pity: they want solidarity. They want the international community to acknowledge what is taking place and work with them to end the conflict. Their resilience is not being matched by support from the international community, which appears caught between denial and helplessness. The consequent lack of decisive action is proving disastrous, and the disconnect between the standards of international humanitarian and human rights law and their lack of enforcement could not be more stark.

It is hard to see a military victory for either side any time soon. Furthermore, for as long as the government fails to put in reforms that have been demanded, for decades, by those on the peripheries within the broader context of Sudan, there will be a reason for people to fight. In this context, a stalemate is unacceptable – a stalemate that is taking an intolerable toll on a civilian population that has been depleted of most of its reserves.

So what can the international community do? Obviously, there are no easy answers. It has already tried to call the president of Sudan to account in Darfur with an arrest warrant issued by the International Criminal Court. This strategy has so far failed to reap any direct benefits to those in Darfur, let alone those in Southern Kordofan and Blue Nile. One recommendation that the report makes is for the United Nations or the African Union to conduct an independent inquiry into what is taking place. Once such an “official” body has documented the situation for themselves, key members of the international community will find it harder to dismiss the evidence of massive attacks on civilians. Maybe this will lead to action. Or maybe not. But for now it might be a step in the right direction. At the very least it would send a powerful message to the people of Southern Kordofan that the international community are aware of their plight, and it would shed some light on an increasingly dark chapter of Sudan’s already shady recent history.

(This post first appeared on OpenDemocracy https://www.opendemocracy.net/arab-awakening/lucy-hovil/silence-over-sudan%E2%80%99s-bombing-of-civilians)

[1] Antonovs are cargo aircraft designed in the Soviet Union in the 1980s. Because they are cargo planes, they lack any sort of guidance system and bombs are simply rolled out of the cargo hold, and are therefore inherently indiscriminate.

Read On! Taking Economic, Social and Cultural Rights Seriously in International Criminal Law

Evelyne Schmid, Taking Economic, Social and Cultural Rights Seriously in International Criminal Law, Cambridge Studies in International and Comparative Law, 2015.

At least sincoverpictce Amartya Sen’s economic research, it is well-known that many of ‘those who fall victim to adverse human agency are not injured by proximate violence but as a result of being compelled to live in subhuman conditions’. To address this fact, scholars and practitioners have been debating whether the mechanisms commonly used to address legacies of widespread abuse could engage with economic, social and cultural abuses. Should they be encouraged to do so? And can international law(yers) be of any help in this regard? Continue reading

The Historic Journey to Respond to the Kim Regime’s Crimes Against Humanity

“A small body of determined spirits fired by an unquenchable faith in their mission can alter the course of history.” Mahatma Gandhi

 A little over a year ago, history was made at the 25th session of the United Nations Human Rights Council (HRC) when three UN commissioners released a report finding, based on a “reasonable grounds” standard, that “systematic, widespread and gross human rights violations have been and are being committed by the Democratic People’s Republic of Korea, its institutions and officials.” The three commissioners had just spent the better part of a year carrying out their UN mandate to investigate potential human rights violations, per HRC resolution 22/13, as members of the new Commission of Inquiry on Human Rights in North Korea (COI). The commissioners collected evidence and heard witness testimony of crimes committed by North Korean officials that “shocked the conscience of humanity.” They stated that based on the body of testimony and other information “crimes against humanity have been committed in [North Korea], pursuant to policies established at the highest levels of the State.”  The commissioners called on North Korea to undertake profound reforms to provide its citizens with basic human rights, including recommending that North Korea first “acknowledge the existence of human rights violations, including the political prison camps.” Undoubtedly, their work shined the spotlight brighter on one of the darkest places in the world and was instrumental in catalyzing international attention on the suffering of North Koreans under the Kim Family Regime.

One Year After the COI Report: On February 17, 2015, the Center for Strategic and International Studies (CSIS), the Committee for Human Rights in North Korea (HRNK), Yonsei University Center for Human Liberty, and The George W. Bush Institute co-sponsored an unparalleled conference in Washington, DC on “the road ahead” for North Korean human rights, which North Korea protested. The conference aimed to carry the momentum of the COI report, findings, and recommendations forward and commemorate the one-year anniversary of the Commissioners’ report.

Since this historic report, history continues to be made and a new path forged by all parties involved. For the first time, the issue of the human rights situation in North Korea, “without prejudice to the item on non-proliferation,” was put on the UN Security Council’s agenda for ongoing attention in a decision adopted 11:2:2 (with votes against from China and the Russian Federation). In addition to the perseverance demonstrated by civil society organizations in propelling human rights up front, a key COI recommendation calling on the UN to ensure “that the most responsible for crimes against humanity committed in [North Korea] are held accountable” played a vital role in creating this momentum. Although there has yet to be a Security Council referral to the International Criminal Court, the UN has moved many steps closer on the path toward accountability of the Kim Family Regime’s ongoing crimes against humanity.

Over the last year, the commissioners’ COI report has shown the international community that North Korea is increasingly more responsive and motivated to counter findings that its leader, in particular, could be held individually responsible for international crimes, specifically crimes against humanity. In addition, there have been good arguments, as noted by law firm Hogan Lovells in a report commissioned by Human Liberty, that North Korea’s State-controlled officials could be found to be committing genocide by targeting groups labeled as “hostile class,” Christians, and children of Chinese heritage.

Undoubtedly, the commissioners and their report laid the groundwork necessary for these historical milestones to occur, and they have also put other States with North Korea relations on notice that they could be aiding individuals responsible for crimes against humanity by supporting the State. It will be interesting to see how the current ten non-permanent Member States view the issue of North Korea’s human rights violations as related to international peace and security going forward.

Continue reading

Precipitating Politics Around The Revival of Prosecutions in Bangladesh

This is part 3 of a three-part series on the Bangladesh International Crimes Tribunal.  Part 1 (overview) and 2 (deep history) are here and here, respectively.

Fast forward to the present day. Prosecuting local collaborators for crimes committed at Liberation emerged as a central campaign pledge of the Awami League and now-Prime Minister Sheikh Hasina Wajed during the 2008 elections when the Awami League “Grand Alliance” emerged triumphant. The law was not invoked until 2010 when authorities arrested four leading politicians from the rival Islamist political party, Jamaat-e-Islami. Jamaat-e-Islami had been banned from political participation following the 1971 war of independence, and its leaders went into exile in Pakistan. The ban was eventually lifted. The party revived, was mainstreamed, and eventually joined in multiparty alliances with, most prominently, the Bangladesh Nationalist Party (BNP). It is now the principal Islamist political party in Bangladesh and a key opponent to the majority Awami League. The most recent general elections were held on January 5, 2014. Jamaat-e-Islami was barred from participating, and the Bangladesh Nationalist Party (BNP) and other opposition parties chose to boycott the elections. As a result, 154 of 300 seats went uncontested, so Awami League candidates won by default. The rise of the Awami League, and the marginalization of any credible political opposition, has cleared the way for the government to launch targeted prosecutions against key political opponents under the 1973 Act.

Once prosecuting political opponents became policy, Parliament amended the 1973 Act several times to make it operational. The legislation, which mostly incorporates the Nuremberg/Tokyo definitions of the crimes and benefited from the assistance of international law experts, was quite forward leaning for its time in terms of substantive law. By today’s sensibilities, however, the legislation is outdated and does not reflect recent developments in the law occasioned by the work of the ad hoc criminal tribunals.

The real concerns, however, relate to a number of procedural infirmities contained in the statute itself and in amendments to the Constitution that deny procedural protections to individuals detained or prosecuted under the 1973 Act. For example, 1973 amendments to the Constitution protect the Act from legal attack. Notably, Article 47(3) states:

(3) Notwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defence or auxiliary forces or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any such law is inconsistent with, or repugnant to any of the provisions of this Constitution.

Article 47A also withdrew certain procedural rights from individuals subject to Article 47(3)—including the right to enjoy the protection of the law, the prohibition of ex post facto prosecutions, the right to a speedy and public trial, and the right to challenge the court’s jurisdiction.

The legislation itself invalidates additional rights, including the right against self-incrimination (the statute provides that defendants shall not be excused from answering any question on the ground that the response will incriminate the suspect). Long pre-trial detentions have led the U.N. Working Group on Arbitrary Detention to declare that several defendants hve been subjected to arbitrary detention in violation of international law, notably the ICCPR. In addition, idiosyncratic Rules of Procedure and Evidence govern the Tribunal, so any protections contained in the normal criminal procedure code, including rights of appeal, are inapplicable. For example, the law imposes an obligation on the Appellate Division of the Supreme Court to dispose of any BICT appeal within 60 days—a tall order given that no interlocutory appeals are allowed. In practice, although the accused ostensibly enjoy the right to counsel of their choice, the Bangladesh government and Bar Association have made it virtually impossible for outside counsel to adequately represent their clients by, among other things, restricting their travel to the country and their presence in interrogations. Several trials—including that of Abdul Kalam Azad, the first case to go to verdict—have proceeded in absentia. A U.S. citizen, Ashrafuzzaman Khan, and a U.K. subject, Chowdhury Mueen-Uddin, have also been sentenced to death in absentia for crimes against humanity. Such trials are not, per se, contrary to international law, but defendants must be given a right to a retrial if and when they are apprehended. No defendant in his right mind would appear voluntarily before a tribunal so stacked against him.

Among other retrograde elements, on February 17, 2013, the International Crimes (Tribunals) (Amendment) Act of 2013 amended the law again to allow for the prosecution of “organizations” for their role in the 1971 War of Liberation. (There is some talk that the law may need to be amended anew to enable the prosecution of “parties” in addition to “organizations” if it is to serve its intended purpose). This baldly political move is aimed directly at Jamaat-e-Islami, notwithstanding that its continuity with its liberation-era predecessor is questionable. After the BICT sentenced Abdul Quadar Mollah, the assistant secretary-general of Jamaat-e-Islami, to life imprisonment for crimes against humanity in February 2013, the Act was further amended to allow the prosecution to appeal a sentence or a verdict of acquittal. The amendments were made retroactive. On the prosecutor’s appeal, the Supreme Court converted Mollah’s sentence from life imprisonment to death, a final sentence that does not admit the right of judicial appeal. Despite calls on December 11, 2013, from U.S. Secretary of State John Kerry and United Nations Secretary General Ban Ki Moon to Sheikh Hasina herself, Mollah became the first BICT defendant to be executed. He was hanged on December 12, 2013 after a last minute stay of execution was lifted, on the eve of the upcoming Victory Day celebrations. Indeed, trials and appeals proceeded at a breakneck pace in 2013, apparently in an effort to achieve results in advance of the January 2014 elections.

The BICT has also been mired in corruption allegations. In December 2012, The Economist broke the story, based upon leaked emails and recorded Skype conversations, that a BICT judge had been seeking outside advice on how to rule from the Brussels-based director of the Bangladesh Centre for Genocide Studies, who was also apparently collaborating with the prosecution. The leaked correspondence suggest that the government was pressuring the judges to issue their judgments more quickly. The judge eventually resigned, but the BICT nonetheless responded with threatened contempt of court charges against The Economist’s journalists. Other journalists and media outlets that have been critical of the BICT have also been hit with contempt charges.

Individually, these infirmities are deeply troubling. Collectively, they fundamentally undermine the fairness of the proceedings, especially given that the death penalty is on the table.

The international community initially supported this effort at historical justice, given the longstanding impunity stemming from the war of independence. Human Rights Watch, for example, called the trials an important and long overdue step to achieve justice for victims. The United Nations Development Programme (UNDP) offered assistance, and the European Union passed resolutions supporting the trials. However, this support soon soured when it was clear that the process had been corrupted and was more political than legal.

The United States’ position toward the BICT has been a guarded one. While acknowledging the need to address the atrocities committed during the war, the United States has also called for proceedings to be free, fair, transparent, and consistent with international and domestic due process standards. The United States Ambassador-at-Large for War Crimes Issues, Stephen Rapp (my former boss), has visited Bangladesh five times (most recently in August 2014) in an effort to bring the proceedings better into line with international standards. Before the trials began, he wrote an extensive analysis of the original legislation, which was later leaked to the press, setting forth his concerns and suggestions for improvements. He was later criticized for offering his views, even though they had been solicited by Bangladesh. Some of these suggestions—including the recognition of res judicata and double jeopardy, the right to a fair and public hearing with counsel of the defendant’s choice, placing the burden of proof on the prosecution, and establishing a system of witness protection—were at least partially implemented. Others—having to do with interlocutory appeals, interrogation rights, disclosure obligations on the prosecution, and enabling the participation of foreign lawyers in court—were disregarded. Now that proceedings are fully underway, the prospects of genuine legal reform are dim. The goal now seems to be to keep the defendants alive.

And What of the Birangonas?

The suffering of Bangladesh’s rape victims continues. Indeed, these women were twice made the victim. The first breach of their rights and dignity occurred when they were subjected to mass rape on a staggering scale. Although we will never have accurate numbers, all accounts suggest that tens of thousands of women were systematically kidnapped, raped, and mutilated.  Many did not survive their ordeal.  Those who did suffered a second kind of assault in the aftermath of the war. Rather than being treated with compassion, given medical and psychological assistance, receiving reparations, or getting access to meaningful justice, many survivors were instead silenced, ostracized by their families, and treated as pariahs in their own communities. The only medical services on offer were makeshift abortion clinics staffed by experts who were flown in to conduct late-term abortions. Many “war babies” who were not aborted were put up for international adoption. For many women, the only tangible recognition they received for what they had suffered were the plaques eventually bestowed on them. Although labeled “Birangonas” (war heroines), this supposed honorific turned out to be little more than a cruel hypocrisy. Many survivors continue to live in poverty and shame.

The propaganda value of violence against women has long been recognized. There is now the risk that these women—who for years have been hidden away, ignored, ostracized or worse—will be injured a third time when their legitimate claims for justice will be used to justify a deeply illegitimate process.  They will be trotted out in support of the trials under the illusion that their stories matter. Once the victims have played their part in justifying a flawed process, they will be relegated back to the shadows once again. As criticism mounts about the BICT, Bangladesh’s Birangonas will come to realize that offering them the opportunity to achieve justice for what befell them was never the goal.

The Bangladesh International Crimes Tribunal (BICT): Complementarity Gone Bad

International courts cannot handle all possible international crimes prosecutions; as such, it is incumbent upon national systems to carry much of the burden. Indeed, the International Criminal Court is expressly complementary; it will assert jurisdiction only when there is no domestic court that is willing or able to bring charges. Although the ad hoc criminal tribunals enjoyed primacy over domestic systems due to their Security Council provenance, the relationship is still a partnership, as evidenced by the high degree of information sharing between the tribunals and their domestic counterparts, the provision of technical assistance and training to local actors, and the ICTY’s Rules-of-the-Road project. Rule 11bis was added to the Rules of Procedure and Evidence to enable the ad hoc tribunals to refer low-level cases to a domestic system with jurisdiction as part of the tribunals’ Security Council-mandated Completion Strategies. Putting to the side the imperatives of capacity, efficiency and cost-effectiveness, many experts express a preference for local justice for more deontological reasons. The theory is that judicial processes convened closer to the events in question will enjoy greater legitimacy within impacted regions, help instantiate the rule of law, and enable more meaningful access and participation for victims and witnesses.

Efforts at local justice can backfire, of course, as exemplified by the work of the Bangladesh International Crimes Tribunal (BICT). The BICT is a purely domestic effort proceeding under a 1973 statute defining international crimes within Bangladeshi law. Tracing its roots to the War of Liberation that gave rise to modern-day Bangladesh, the BICT is dedicated to prosecuting alleged collaborators of the Pakistani Army (then West Pakistan) for atrocities committed when East Pakistan (now Bangladesh) sought to secede in March 1971. These events cry out for justice; however, the fundamentally unfair proceedings underway before the BICT pervert the values and goals of transitional justice, insult the victims who deserve a more legitimate accountability process, and threaten to leave a lasting stain on both the Bangladeshi legal system and the system of international justice writ large. Many of the defendants may in fact be guilty of the crimes of which they are charged. But because the proceedings are so profoundly unfair, and the defendants are subject to the death penalty, we will never know for certain. Once hailed as a courageous and important exercise in historical justice, the BICT has become an object lesson for how international criminal law can be manipulated for political ends.

The BICT has drawn sharp criticism for a whole host of reasons, not the least of which is that its proceedings are entirely one-sided. So far, indictments have been leveled against eleven defendants representing the senior leadership of two opposition political parties (nine from Jamaat-e-Islami and two from the Bangladesh Nationalist Party (BNP))—both rivals of the ascendant Awami League. Not a single so-called freedom fighter (mukti bahani) or Pakistani national has been prosecuted, suggesting that the BICT is just a tool within a byzantine political vendetta rather than a genuine, and long-overdue, effort at historical justice. Although Bangladesh has ratified the International Covenant on Civil and Political Rights (in 2000), and was the first, and one of the few, Asian nations to ratify the ICC Statute (on March 23, 2010), many aspects of proceedings run afoul of the litany of procedural protections owed to criminal defendants under human rights law, most notably Article 14 of the ICCPR. Some of this unfairness can be traced to the very genetic code of the BICT’s legal framework; the rest has is attributable to the practice of the tribunal.

Due in part to their perceived unfairness and one-sidedness, the trials have become a dangerously polarizing force in Bangladesh. The verdicts have prompted mass demonstrations, street violence, and destructive hartals (strikes), which have brought Dhaka to a veritable standstill, destroyed public and private party, and led to the deaths of dozens of protesters at the hands of the Bangladeshi security forces. The imposition of the death penalty brings supporters of Jamaat-e-Islami to the streets; a mere life sentence, by contrast, infuriates backers of the Awami League and prompts competing protests and petition drives calling for the application of the death penalty. Many observers breathed a sigh of relief when the Supreme Court on September 17, 2014, commuted the sentence from death to life imprisonment of a leading Islamist politician and cleric, Delwar Hossain Sayedee. Nonetheless, the move sparked street protests, expressions of disappointment from members of the government, and calls for the Constitution to be amended yet again to remove the possibility of pardon. This trial was marked by heightened controversy, particularly when a key defense witness (who had originally agreed to testify for the prosecution) was kidnapped on the courtroom steps by plain-clothed agents as he arrived to testify. (He was later forcibly transported to India where he was promptly arrested for immigration violations). The independence of the judiciary—such as it was—is even more in jeopardy since the 16th Amendment to the Constitution—finalized on September 22, 2014—will empower Parliament to impeach Supreme Court judges for “incapability and misconduct.”

Notwithstanding these defects, the proceedings are popular among a number of victim groups, who have been denied any meaningful justice since the War of Liberation. In particular, the trials have given voice to the so-called Birangonas (“war heroines”), who are on record demanding the mass application of the death penalty—and worse—to BICT defendants. The Birangonas suffered unimaginably during the War of Liberation, and they deserve their day in court. They also deserve a legitimate, fair, and impartial judicial process that will stand the test of time, rather than the facsimile of justice being peddled by the BICT: justice in the service of politics and the demands of the street.

In August, I participated in a session at the San Francisco Bar Association (video here) on the BICT with Toby Cadman, a British barrister doing a yeoman’s job of representing defendants before the BICT. The remainder of this series of posts will provide a backgrounder on the BICT proceedings and the substance of our remarks.  Part 2 provides a deep history of the BICT; Part 3 addresses the BICT’s procedural infirmities.  The BICT can be followed more closely here and here. The best academic treatment of the BICT’s history and jurisdiction is by Suzannah Linton of Bangor University.

In passing: Hans-Peter Kaul, ICC judge, German diplomat, antiwar activist

kaulSaddened to read that Judge Hans-Peter Kaul, a pivotal member of the International Criminal Court’s founding generation, has passed away. The in memoriam notice at the ICC website reports that he died yesterday, as a result of the serious illness that earlier this month compelled his resignation after nearly a decade on the ICC bench.

That tenure continued service to the ICC which had begun in 1998, when Kaul, then a diplomat, led the German delegation at the Rome Conference. He recalled the climax of that conference in a 2012 guest post for IntLawGrrls:

After the decisive vote on the Rome Statute, our founding treaty, there is some kind of explosion, an enormous outpouring of emotions, of relief among those present, unparalleled for such a conference: screams, stamping, exultation without end, tears of joy and relief; hard-baked delegates and journalists who have frowningly watched the entire conference hug each other in a state of euphoria. And a German delegate, normally a level-headed man, jumps up and down like a rubber ball and keeps punching me in the ribs, completely breathless,

‘Herr Kaul, Herr Kaul, we’ve done it! We’re getting an international criminal court!’

Kaul was born 70 years ago this Friday, in Glashütte, near Germany’s border with what is now the Czech Republic. The year was 1943. World War II raged, and memories of his boyhood during that war and its aftermath–including the postwar trials at Nuremberg–never were far from his work on behalf of international criminal justice.

This was evident in his most significant ICC opinion, a dissent from a panel’s preliminary ruling in the Court’s ongoing case involving 2007-2008 post-election violence in Kenya. In a 19-page commentary labeled Dissenting Opinion of Judge Hans-Peter Kaul to Pre-Trial Chamber II’s “Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kipono Kosgey and Joshua Arap Sang” (15 March 2011), Kaul invoked the Nuremberg legacy to argue that only violence at a level of “state-like ‘organisation'” could constitute crimes against humanity. It is an argument that continues to generate academic debate.

Another link to Nuremberg may prove even more lasting. In recent years, Kaul was an impassioned and indefatigable advocate for make the crime of aggression punishable by the ICC. His German delegation had pushed successfully for the listing of that crime–a signature offense at Nuremberg–in Article 5 of the Rome Statute. (Prior posts here and here.) After the Assembly of States Parties adopted the 2010 Kampala amendments to activate the ICC’s crime of aggression jurisdiction, Kaul campaigned actively for ratification. Every time he and I crossed paths, at Chautauqua, The Hague, or elsewhere, Judge Kaul was quick to report on the status of that campaign–and to express particular pride when his native country and its linguistic neighbors deposited their instruments of ratification or accession.

With the ratification by Austria last Friday–the 16th anniversary of the adoption of the Rome Statute–the Kampala amendments have garnered half the 30 ratifications needed for entry into force. (Also required is another Assembly vote.) States that have joined to date are Andorra, Austria, Belgium, Botswana, Croatia, Cyprus, Estonia, Germany, Liechtenstein, Luxembourg, Samoa, Slovakia, Slovenia, Trinidad and Tobago, and Uruguay. Numerous other states, including many others in the North Atlantic Treaty Organization, are reported to be nearing joinder.

Kaul was crystal clear about the reason he pushed for these amendments: The child of war saw activation of crime of aggression jurisdiction as an essential step toward ending war altogether. In his IntLawGrrls post as in other writings and lectures, he explained:

War–this is the ultimate threat to all human values; war is sheer nihilism. It is the total negation of hope and justice. Experience shows that war, the injustice of war in itself, begets massive war crimes and crimes against humanity. In my nine years as a Judge of the ICC, I have seen that, as in the past century, a terrible law still seems to hold true: war, the ruthless readiness to use military force, to use military power for power politics, regularly begets massive and grievous crimes of all kinds.

In Kaul’s view, the prosecution of jus in bello violations is important, yet an incomplete, a symptomatic approach, unless it is accompanied by the prosecution for jus ad bellum violations. His own pithy words are a fitting epitaph:

War crimes, they are the excrement of war.

 

(Cross-posted from Diane Marie Amann)

Colombian peace talks advance, but raise difficult justice issues

Last week, I had the honor of addressing the assembled Colombian judiciary on how comparative experiences can help inform the difficult choices the country will need to make in order to finalize a peace deal with the armed insurgents (FARC and ELN) and bring an end to over 50 years of armed conflict.  As part of the meeting, the chief government negotiator in the talks now being held in Havana, Cuba, outlined the points of agreement and difficulties to date.  The process has raised difficult debates over how to take advantage of the best opportunity for peace in a generation while meeting the country’s international legal obligations, in a world where blanket amnesty is no longer an option.

Unlike earlier peace initiatives – and unlike the deals negotiated in Central America more than a decade ago – the current talks focus almost exclusively with ending the war, leaving political and social reforms to later discussion.  There is one major exception:  an agreement on rural development, based on a shared understanding between the parties that structural inequalities in the countryside are fueling the conflict, and that while the urban middle class has increased and agribusiness is flourishing, small farmers have suffered.  The agreement creates a Rural Land Bank, tax incentives for small farmer development, land surveying and titling, better access to credit and technical assistance, and improved government services in rural areas.  Whether any of this will make enough of a difference in the face of simultaneous widespread African palm and export agro expansion remains to be seen.

Its success may also depend on how well the country’s ambitious land restitution scheme ends up working.  Colombia has up to five million forcibly displaced people. In its first six months, newly appointed restitution judges have issued 270 decisions, most of them in favor of people forced off their land by armed groups.  While impressive, this is only a small part of the cases of forced dispossession.  To complicate matters, judges are finding that land was often taken by force more than once during the course of the conflict, leading to multiple claims and contestation by different groups of victims.  The security situation in parts of the country has also impeded implementation of these early decisions, as litigants and judges are threatened and some community leaders have been killed.

The rest of the peace negotiating agenda includes political participation, demobilization, relation to narcotrafficking, victims, transitional justice and the form of citizen approval of whatever deal is reached.  Transitional justice is proving one of the more difficult – and interesting – aspects of the discussion.  There is little talk of amnesty, and a broad understanding that neither the Inter-American Court of Human Rights nor the International Criminal Court (Colombia is a state party, and the Prosecutor has had a preliminary investigation open since 2004) would countenance an amnesty or pardon that included war crimes or crimes against humanity.  At the same time, there are an estimated 10,000 fighters, many of whom have played a role in kidnappings, extortion or military operations.  The Colombian state has neither the ability nor the resources to investigate, much less prosecute them all.

It also has some experience with creating alternative justice procedures, gained in the demobilization of right-wing paramilitary groups starting in 2005.  The Justice and Peace Law 975 promised conditional suspension after a hearing of the normal sentences for murder and other serious crimes, to be replaced by an alternative 5-8 year sentence.  In exchange, the applicant committed to demobilize, give an unsworn public statement detailing his crimes, and turn over any lands or other property stolen as a result of paramilitary activities.   Unfortunately, after years in operation and 4000 demobilization applications, the Law as of 2012 had yielded less than 20 convictions and little asset recovery, in part due to the difficulty of investigating the statements.  There is a widespread sense among judges that the judiciary would get equally swamped were the insurgents included in a similar process.

Arguing that it was needed for peace talks, the government earlier this year passed, and the Constitutional Court approved, a constitutional amendment, known as the Framework Law of Peace.  It allows the Chief Prosecutor to determine criteria to prioritize and select cases for prosecution that involve those most responsible for international crimes.  It also, more controversially, allows for conditions under which sentences can be suspended, alternative sanctions or special modalities of serving the sentence imposed, and some cases not prosecuted at all.  After a challenge, the Constitutional Court upheld the law, reading it, however, as requiring investigation of all grave violations, if not necessarily punishment of all those involved.

 

The FARC have until now rejected the Framework Law because it was unilaterally decreed.  Nonetheless, there seems to be agreement that the shape of a deal will require some form of conditional pardon or suspended sentence for the rank and file, many of whom were recruited as child soldiers.  There also seems to be broad agreement on a Truth Commission that would examine all the actors in the extended conflict, including the state and economically powerful forces.  The big question remains whether some form of conditional suspended or reduced sentence for the top leaders can be crafted in a way that passes muster.  What is clear is how far the region has come since the last wave of post-conflict or post-dictatorship transitions in terms of agreement on the primacy of the obligations towards victims and the rejection of blanket amnesties.

 

The question of how any agreement is ratified by the population is also contentious, with the government proposing an up-or-down referendum and the insurgents leaning towards a constitutional convention.  The idea is that civil society, which has been largely excluded from the talks, would weigh in at that point.  It is unfortunate that, for example, there are no female negotiators on either side (although there are key female advisors), so women’s groups will only be able to raise concerns late in the day.  There is also a determined effort on the part of the right, led by former president Alvaro Uribe, to scuttle the talks and insist on a military victory. Nonetheless, the talks present the best chance in years to finally put an end to Latin America’s longest-running conflict.

ABA Adopts Official Policy on Atrocity Crimes

Jean Claude "Baby Doc" Duvalier in court in February 2013

Jean Claude “Baby Doc” Duvalier in court in February 2013 (photo credit)

ABA

Last month the American Bar Association‘s House of Delegates unanimously approved a policy developed by the ABA’s International Human Rights Committee (IHRC) on no statutes of limitations for genocide, war crimes, or crimes against humanity. The IHRC mentioned what occurred in Haiti, where in 2012 a Haitian judge ruled that Jean Claude Duvalier (“Baby Doc”), having recently returned to Haiti after fleeing allegations of financial corruption and serious human rights abuses, could not face prosecution for crimes against humanity due to the expiration of  Haiti’s relevant statute of limitations. An ABA policy on this issue, said the IHRC, could have assisted the Haitian judiciary in the proper application of international law in this instance.

The policy systematically makes the case that customary international law now proscribes statutes of limitation for genocide, war crimes, or crimes against humanity. It further states that encouraging all countries to adhere to this norm of customary international law will:

  • Minimize the likelihood that the relevant authorities will misapply or disregard this norm;
  • Promote the appropriate understanding of this principle of international law, thereby strengthening its deterrent aspect; and
  • Improve the human rights situation worldwide.

The policy can be found here.