Joint Open Day for the International Criminal Tribunal for the former Yugoslavia and Mechanism for International Criminal Tribunals

ICTY/MICT Open Day in The Hague

The International Criminal Tribunal for the former Yugoslavia (ICTY) and Mechanism for International Criminal Tribunals (MICT) are hosting a joint Open Day on Sunday, 25 September, as part of The Hague International Day. At the Open Day, there will be opportunities to interact with Judges and other key staff members, view new documentaries produced by the ICTY Outreach Programme, and explore art exhibitions and Archives material.

ICTY President Judge Carmel Agius and MICT Judge Burton Hall will deliver the opening remarks.

Speakers (with Q&A sessions) for the day include:

·        Judge Alphons Orie, ICTY and MICT
·        Judge Bakone Justice Moloto, ICTY and MICT
·        Ana Cristina Rodríguez Pineda, ICTY Chef de Cabinet
·        Bob Reid, Chief of Operations, ICTY Office of the Prosecutor
·        Roman Boed, Senior Legal Officer, MICT

Events will be held throughout the day from 11:00 – 17:00 at the ICTY and MICT joint premises (Churchillplein 1, 2517 JW The Hague).

To register or request more information, please contact Timothy Jesudason at jesudason@un.org.

Kosovo Specialist Chambers: Launch of New Website

The Kosovo Specialist Chambers would like to announce the launch of its new website. At the inaugural press conference of the Kosovo Specialist Chambers held in The Hague, the Netherlands, (15th September), the Registrar, Dr Fidelma Donlon, emphasised the website as the legitimate institutional source of facts about the Chambers. Dr Donlon encouraged all those interested in the work of the Kosovo Specialist Chambers to look to the website and to engage directly with the Public Information and Communication Unit of the Kosovo Specialist Chambers. The website is presented in the three languages of the Specialist Chambers, and will provide up-to-date information on the Chambers, as well as on any proceedings that may be held.

Call for Papers: Eyes on the International Criminal Court

We are currently accepting submissions for Volume 12 of the Eyes on the International Criminal Court. Given the groundbreaking events in international criminal justice over the past year, our Editorial Board has expressed particular interest in publishing articles covering (1) ICC’s conviction of Jean-Pierre Bemba Gombo, (2) ICC’s termination of the case against Kenya’s Deputy President William Ruto and journalist Joshua Arap Sang, and (3) ICTY’s conviction of Radovan Karadzic. However, we are also accepting other articles analyzing the International Criminal Court.

We are accepting article submissions from scholars, jurists, professionals, and exceptional work from students for publication in the upcoming volume. Or, if submitting an article sounds like it is too much of a commitment, we are also looking to expand our pool of peer-reviewers.

Submissions may be sent through ExpressO or directly to icc@americanstudents.us. We look forward to hearing from you!

Call for Papers: More Info

Call for Peer Reviewers: More Info

Sexual and gender-based violence under the Geneva Conventions: A New Commentary

The 1949 Geneva Conventions, A Commentary (A. Clapham, P. Gaeta, M. Sassòli, Eds. OUP, October 2015), is a mammoth effort to update the interpretation of the Conventions to take account of the significant developments in international law, especially international human rights and international criminal law, since the ICRC published Jean Pictet’s edited commentaries* in the middle of last century.

As the editors point out, since Pictet’s commentaries were published the international legal landscape has dramatically shifted. For one thing, the 1949 Conventions have been universally ratified and their application interpreted in hundreds of cases. International human rights law (IHRL) has developed enormously since the 1960s and its intersection with IHL is more commonly acknowledged. Recently concluded human rights treaties expressly address their application to situations of armed conflict (e.g., Istanbul Convention on violence against women; Convention on the Rights of Persons with Disabilities). International criminal law has become something of a growth industry since the 1990’s when the tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) and the International Criminal Court (ICC) were established with jurisdiction over IHL violations.

Since Pictet’s day, the worldview of sexual and gender-based violence (SGBV) and IHL has also radically changed. Due to the persistence of feminists over many decades, there is greater awareness of the prevalence of SGBV during armed conflict and a growing intolerance of it as an inevitable part of war. There have been numerous convictions for SGBV crimes as a violation of IHL (e.g., at ICTY, ICTR and ICC). In this context, SGBV has also evolved from its arcane conception in the Conventions as an attack against the honour of a female person, focussed on forced sexual intercourse, to encompass a wide range of acts against the sexual integrity of a person of any gender.

Patricia Viseur-Sellers and I wrote the chapter on protections from rape and other sexual violence and we start from the principle that humane treatment, the fundamental tenet of the Conventions regime, prohibits these acts against any person in every circumstance. We look in detail at Article 27, Fourth GC on civilians as the only article in the Conventions to refer expressly to sexual violence. It requires that female civilians “be protected against any attack on their honour, in particular against rape, forced prostitution and indecent assault”.

None of these terms are defined in the Conventions. We examine each one drawing on a range of sources, including international jurisprudence where available (e.g., Nuremberg, the International Military Tribunal for the Far East, the ICTY and ICTR), the Rome Statute and Elements of Crimes of the ICC, as well as leading critical feminist analysis, especially the work of J. Gardam & M. Jarvis in Women, Armed Conflict and International Law (Kluwer, 2001).

Much of the discussion focuses on a critical assessment of the imprecise and out-dated approach in Article 27(2) that protects women from sexual assault as “attacks on their honour” rather than against their person and sexual integrity. We agree with Gardam and Jarvis that IHL is a “thoroughly gendered system” and that equating female honour with chastity and modesty mischaracterises sexualised violence and perpetuates the discriminatory gender stereotype which sees women’s honour as belonging to her family and community, especially its male members. We point out that it also perpetuates the myth that sexual violence, especially rape, can only be committed against females. Continue reading

El Salvador’s Constitutional Court Invalidates Amnesty Law; Will Prosecutions Follow?

After years of deliberations, the Constitutional Chamber of El Salvador’s Supreme Court ruled on July 13 that the country’s 1993 amnesty law is unconstitutional and must be stricken. The 4-1 decision, although long expected, has caused uproar in El Salvador, where neither side in the civil war has been supportive of prosecutions for past crimes and where rampant criminality and insecurity are present-day scourges. The four-person majority of judges Sidney Blanco, Florentín Meléndez, Rodolfo González and Eliseo Ortiz, grounded the decision in the rights of the victims to access to justice, to judicial protection of fundamental rights, and to full reparations. It makes extensive use of international law, especially the jurisprudence of the Inter-American Court of Human Rights. It will provide new hope for the long-suffering victims of the country’s twelve-year civil war, but will also complicate the country’s politics and challenge a weak and compromised prosecutors’ office.

The complaint was brought by a number of NGO representatives and victims of rights violations, alleging that the amnesty law was illegally passed and violated El Salvador’s international commitments and constitution. The 1993 amnesty was passed to deal with the crimes of both sides in a civil war that cost some 75,000 lives. The amnesty was passed just three days after a U.N. sponsored Truth Commission issued its report. The Commission found that most of the massacres, assassinations, forced disappearances and torture committed had been carried out by the armed forces or by death squads connected to them.

The text of the decision

The Court first dismissed the procedural illegality argument, but used the occasion to note that the amnesty was not, as the Prosecutors’ office argued, a part of the peace accords that ended the civil war. On the contrary, those accords had stressed the need to end impunity for human rights violations. The Court thus confronted head-on one of the central myths of the country’s political classes, that amnesty was required by the peace accords. Rather, the Court held that the legislature had to balance the need for reconciliation with the need for justice for the victims. It cited with approval in this regard the 1992 Law of National Reconciliation, which provided amnesty for political crimes, but expressly excluded “grave violent events from January 1, 1980 on, which have left their mark on society, and demand the most urgent public knowledge of the truth” that were mentioned by the U.N.-backed Truth Commission.

In its July 13 judgment, the Court held that the amnesty is unconstitutional as applied to all crimes against humanity and those war crimes that violate the fundamental guarantees of Protocol II of the Geneva Conventions, committed by either side in the conflict. The amnesty violates the country’s international obligations to investigate and prosecute under the International Covenant on Civil and Political Rights, the American Convention on Human Rights, Protocol II, and the constitutional right of the victim of a crime to civil damages and to judicial protection of fundamental rights. Regarding war crimes, although Protocol II calls for the “widest possible amnesty,” that provision must be read in light of all the country’s international obligations, and the amnesty cannot be absolute. With respect to crimes against humanity, those crimes are by definition not subject to amnesty or statutes of limitations and are subject to universal jurisdiction.

Continue reading

CICIG’s investigations show web of corruption in Guatemalan state. Now, what’s next?

Two weeks ago, CICIG (International Commission against Impunity in Guatemala) revealed that the Partido Popular (PP), the former governing party of now disgraced and imprisoned former president Otto Pérez Molina and his—also incarcerated—vice president Roxana Baldetti, was engaged in a web of corruption far more extensive than initially thought. Shortly after reaching power, the party, under the direction of President Pérez Molina, had established an organized criminal structure that had seized the state, and developed an elaborate scheme of collusion between the local private sector and the state to enrich public servants and grant companies easy access to government contracts.

The revelations come just as the so-called Northern Triangle countries (Guatemala, El Salvador, Honduras) are about to receive a large infusion of international assistance through the $750 million U.S. funded Alliance for Prosperity that, rather than being limited to security sector support, seeks to stimulate economic development and strengthen democratic institutions. But given what CICIG has now revealed, are Guatemala and the other recipients ready to adopt the structural changes necessary to effectively channel and apply these funds, to address corruption at its roots?

CICIG was established in 2007 under the auspices of the United Nations to investigate organized criminal networks with links to the state. It is bound by Guatemalan law and must work closely with the country’s Public Ministry. CICIG’s operations have had their ups and downs, as has been documented in a recent report by the Open Society Justice Initiative. However, under the current leadership of Colombian prosecutor Iván Velásquez, it has made important strides in uncovering corruption and eroding impunity of even some of the most powerful.

CICIG’s most important case to date was brought to light in April 2015, when the investigatory body revealed a corruption scheme within the country’s customs authority. That case, named “La Línea,” implicated then-President Otto Pérez Molina and Vice-President Roxana Baldetti, as well as other high-level officials. The massive public outcry that followed led to the resignation of both the President and the Vice-President. Since then, CICIG and the Public Ministry have continued their investigations, and in the following months uncovered more such corruption rings involving high-level officials and prominent businesspeople.

Additional information retrieved through searches and phone taps exposed an even more extensive scheme than originally thought. In June 2016, CICIG concluded that the PP, the former government party, rather than having engaged in occasional (but serious) acts of corruption, was essentially an organized criminal enterprise whose primary purpose was to reach power to gain access to public resources for private gain. Continue reading

Strengthening National Justice for Core International Crimes

The Case Matrix Network are organising a conference on Strengthening National Justice for Core International Crimes: Laws, Procedures and Practices in an Age of Legal Pluralism on 28 June in The Hague.

This conference will analyse some of the challenges faced by national and international criminal justice actors, who are working at different stages of accountability processes, as well as the measures being taken to address them:

  • What are the choices faced by justice actors in determining, pursuing and assisting justice efforts for conduct that may amount to core international crimes?
  • How to evaluate the types of fora or jurisdictions, the necessity for legal reforms or the situations or specific violations to address?
  • How to navigate evidence collection and analysis for different fora or jurisdictions?
  • When to adopt different fact-finding standards and procedures of evidence collection, security measures for investigators, victims and witnesses?
  • Why select or prioritise cases for criminal justice and can criteria provide fairness and transparency?
  • How are these decisions shaped by the context of conflict, transition or recognition, and what are the opposing pressures and restrictions of material resources, operational capacity and capability faced by the executive, investigation and prosecution authorities, judiciary, legislature and civil society?

For more information on the event, please visit the conference website.

The Trial of Hissène Habré

CAE from afarOn May 30, the Chambres Africaines Extraordinaires (CAE) will announce its verdict in the trial of Chad’s ex-dictator Hissène Habré. Conviction is expected. What will it mean?

The trial of Chad’s Hissène Habré by an ad hoc court in Senegal is making history, and more is expected in the Judgment, scheduled for May 30, 2016. Habré’s trial represents many firsts: it is the first trial of the leader of one country by courts of another, and the first exercise of universal jurisdiction in Africa. The trial is taking place before the CAE, a hybrid judicial product governed by a statute resolved between Senegal and the African Union (AU) employing Senegalese procedure and international criminal law content.

In advance of the expected judgment, this post considers three victors of the CAE, what the trial means for Chad, and what to watch in the post-judgment phase.

The CAE’s Victors:

First, the trial is a triumph for the coalition of international NGOs and Chadian victims that have agitated for recognition of state-sponsored atrocity in Chad since Habré fled in 1990, and perhaps for the broader question of universal jurisdiction more generally. Human Rights Watch’s Reed Brody, a central figure in the effort, deliberately elected Habré’s asylum in Senegal as the place to make this stand, and the trial is the result of two decades of efforts, passing through multiple domestic and international institutions (courts in Senegal, Belgium, Chad, ECOWAS, ICJ and even the fledgling African Court of Human and People’s Rights).

Second, the trial appears to be a triumph for Senegal. Nearly everyone – from foreign diplomats to the proverbial man on the street – describes the trial as “well-run”. The trial stayed within its modest 8.6 million euro budget and, provided the scheduled judgment is issued as predicted, nearly within its timeline. Witnesses appeared when planned and none of them perished or disappeared. Even the resistant Habré was effectively contained: after his first days of bitter resistance, where he fought his guards and was ultimately carried to his seat and physically restrained once there, the Chambers began seating him before the trial began. In this way, Habré’s resistance – beyond his total silence – effectively became a non-news item. Overall, the trial highlighted Senegal’s position as a long, stable democracy with a vital civil society sector, unique to the region. In an African power structure where South Africa is wealthy and Nigeria has vast resources, Senegal has further carved out a position as a regional rule of law expert.

Finally, the trial is arguably a triumph for the International Criminal Court (ICC), though it may be a Pyrrhic. To the degree that the trial follows the tenets underwriting the ICC – the appropriateness of legal responses to atrocity, and the centrality of combating impunity for leaders – the trial can be understood to shore up the ideological foundation of the ICC, and thereby its work. Senegal officially maintains its support for the ICC, and officials at the CAE and within the Ministry of Justice represent the CAE as an institution in line with, not in conflict with, the ICC. On the other hand, the trial can be read as an example of local alternatives to the ICC, and is supported by powers (the AU, Chad) that openly oppose the ICC. Moreover, the lean efficiency of the CAE stands in stark contrast to the ICC’s unwieldy behemoth. For example, the CAE’s four investigative judges, who completed the impressive work of roping international criminal law and the facts (2500 witnesses, 4000 documents) into the 160 page Ordonnance did this by themselves, with no clerks or researchers, over the space of 19 months. The Court Administration, responsible from soup to nuts, from hiring personnel to housing witnesses, has a staff of three. Continue reading

Transitional Justice and State Responsibility

If international atrocity crimes are acts so egregious that their impunity cannot be legally tolerated, why don’t we punish States that commit them? I explore this question in my recent article A Wolf in Sheep’s Clothing? Transitional Justice and the Effacement of State Accountability for International Crimes, published in the Fordham International Law Journal. States and individuals each may be responsible under international law for the same incidents of mass atrocities: individuals under international criminal law and States under the law of state responsibility. Yet when the international community mobilizes to sanction State-perpetrated atrocities, it moves to punish individual perpetrators and side steps States. For example, a 2014 proposal before the Security Council to refer the situation in Syria to the ICC made no mention of legal responsibility of the Syrian State for violation of obligations erga omnes. I argue that part of the reason the international community prefers enforcing international criminal responsibility over holding states accountable is transitional justice.

Transitional justice has emerged as the dominant normative framework for how the international community responds to mass violence. Within transitional justice, the legacy of the Nuremberg trials has produced individual criminal accountability as the highest form of legal accountability for atrocities. Transitional justice rejects punishing States for atrocities as illiberal (collective punishment) and illegitimate (lack of positive law). Advocates justified the ad hoc criminal tribunals for the former Yugoslavia and Rwanda by arguing that punishing individual war criminals was necessary to avoid collective guilt and would promote reconciliation. Transitional justice has focused on legal accountability for individuals and needs to consider what State responsibility offers as a normative and practical matter. Without legal accountability, States enjoy moral and legal impunity for their crimes. States escape their legal obligations to repair the injury they cause and to institute reforms that secure a fuller measure of justice and peace.

The pursuit of State responsibility for atrocity crimes furthers the aims of transitional justice in important conceptual and practical ways. Accountability for international crimes is a bedrock international principle around which the United Nations has organized international transitional justice policy. Rule of law ideals have thoroughly infused the international justice discourse. Yet international rule of law principles apply equally to States. So when, in the name of accountability for international crimes, transitional justice effectively ignores State legal responsibility, transitional justice undermines the international commitment to rule of law.

In the case of mass atrocities, States violate norms of the highest order—genocide, crimes against humanity, war crimes—and obligations owed to the international community as a whole. Such transgressions deserve to be acknowledged as such. State-perpetrated mass slaughter of civilians is conducted in furtherance of a State policy, and relies on multiple collective dimensions of the State to advance this criminal pursuit. To the extent that transitional justice pursues international criminal sanctions, these acts when carried out by States also should be identified as wrongs, and offending States should be held accountable.

Continue reading

A Week of Firsts at the ICC

It has been a successful week for the International Criminal Court (ICC). On Monday 21 March 2016, Trial Chamber III convicted Jean-Pierre Bemba Gombo as military commander for rape, murder, and pillaging committed by troops under his command in the Central African Republic. Two days later, on 23 March, Pre-Trial Chamber II confirmed all 70 charges against Dominic Ongwen, committing him to trial. Then, on 24 March, Pre-Trial Chamber I issued the confirmation decision in the case against Ahmed Al Faqi Al Mahdi for the destruction of cultural property in Mali. All of these cases have set important precedents: it has been a Week of Firsts for the ICC.

Two firsts in the Al Mahdi case

  • The confirmation of a charge of the war crime of intentionally directing attacks against ‘cultural property’ in Timbuktu (Mali) against Al Faqi Al Mahdi was the first such crime to be confirmed at the ICC.
  • His trial would have been the first regarding the destruction of cultural heritage. Would have been, because on 1 March, Al Mahdi indicated his wish to plead guilty. But that brings us to another first: his will be the first guilty plea at the ICC. If the Trial Chamber accepts his admission of guilt under article 65, the case will proceed to sentencing.

Three firsts in the Bemba case

  • Jean-Pierre Bemba Gombo’s conviction of rape, murder, and pillage was the first time at the ICC that an accused person was convicted of sexual violence.
  • His conviction was also the first ever in international criminal law to classify rape of men specifically as sexual violence (as opposed to other inhumane acts or torture).
  • Bemba was tried and convicted as a military commander for crimes committed by troops under his command for his failure to prevent, repress or punish their commission. Another first!

Four firsts in the Ongwen case

  • Dominic Ongwen saw 70 charges confirmed against him, including various modes of liability. It is the first time an accused faces such a high number of charges at the ICC.
  • With 19 of the 70 charges relating to sexual and gender-based violence, it is also the first time an accused faces such a broad range of sexual and gender-based violence charges. He faces several charges of rape, sexual slavery, enslavement, forced marriage, torture, outrages upon personal dignity, and forced pregnancy.
  • Ongwen will be the first person ever in international criminal law to stand trial for forced pregnancy. Although forced impregnation as a strategy in war and conflict is not new, the ICC’s Rome Statute was the first to codify it as a specific crime.
  • Ongwen is also the first person at the ICC to face charges of forced marriage. While not a specific crime under the Rome Statute, the Chamber concurred with the Office of the Prosecutor that forced marriage constitutes an “other inhumane act” as a crime against humanity. The decision explores in some detail the elements of the crime of forced marriage, which for the Chamber revolves around forcing a person to serve as an exclusive conjugal partner. Importantly, the Chamber stressed that it is not predominantly a sexual crime. His trial will undoubtedly expand upon international criminal law’s understanding of this crime.

It has certainly been an exciting week for the ICC!