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.

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Transitional Justice: What is the role of law in bringing imaginative and imaginary peace to Colombia?

This blog post is based on a reflection presented at the “Transitional Justice as Legal Field, Site and Imagination” panel at the Transnational Law Summer Institute, Kings College, London June 29, 2016. I am grateful to Prabha Kotiswaran and Peer Zumbansen for the invitation.  

What is the role of law in bringing imaginative and imaginary peace to Colombia?

June 23 2016 was described by Colombian and international media as the “last day of the war”, adopting FARC’s hashtag #ElÚltimoDíaDeLaGuerra. The signing of a bilateral ceasefire between the Colombian government and FARC formally ended hostilities in the world’s longest running war. The signing of a peace agreement is expected to take place during the summer of 2016.

To the overlapping academic fields of human rights, transitional justice and post-conflict reconstruction, the sophisticated Colombian transitional justice process is attractive and will likely be highly influential for the coming decade, both as an example of success and of failure. There is also a significant risk that scholars (outside Colombia) will embrace the Colombian experience either deterministically — as an example of systemic yet de-historicized power imbalances — or as a fantastical  and outsized legal progress narrative that can serve as an endless source of political models, constitutional processes and legal arguments suitable for embellishing the transitional justice juggernaut.

My argument in the following is based on one big supposition: I will put forward the idea that approached from a law and social change perspective, the Colombian transitional justice project is necessarily a failure foreseen.

“Everybody” knows that positive peace is not going to happen through legislation, decisions by a progressive Colombia Constitutional Court or the signing of a formal agreement. This Everybody also knows that if positive peace happens, it will not happen soon.  At the same time, it is easy to imagine that a year from now, politicians, ordinary Colombians, pundits and academics will dismiss the transitional justice legislation and the peace agreement as partial or total failures for their inability to perform the impossible expected by the Everybody; namely ending violence, providing reparations and changing the structural inequality that is the source of much of the violence.

However, I think that precisely at this juncture, as a community professionally engaged in the business of imagining peace and transitional justice, we need to reflect on what the critical takeaways from and beyond this failure foreseen could be. We may find that imagined and imaginative outcomes turn out to be imaginary. But this is not enough, it’s not even a starting point. We need to go beyond that.

Hence, after briefly describing the Colombian peace process, I will map out three sets of issues that could serve as tentative points of departure for critical reflection. This includes:

  • How we can gauge the meaning of the Colombian transitional justice process for Colombian citizenry, citizenship and the state;
  • The implications of Colombia being both outlaw and legal outlier for how we consider the role and place of the law in creating durable peace;
  • A first attempt to think through some of the general lessons Colombia can have for transitional justice practice and scholarship.

Peace and conflict as statecraft

The armed conflict between the government and FARC began in 1964. Separate negotiations have previously led to the demobilization of smaller guerillas (MAQL, M-19; EPL) and an agenda for formal negotiations has now been agreed with ELN.  However, Colombia has been at war or seen violent societal conflict for most of the time since the late 1890s. Colombian peace processes and attempts at political, legal and land reform are a fixture of Colombian statecraft. The last round of peace talks with FARC ended with fiasco in 2002. From 2003 president Uribe engaged in a much-criticized effort to demobilize the paramilitary AUC, with a basis in the 2005 Justice and Peace Law. Despite its shortcomings, it must be remembered that this framework has provided a platform for the current process.

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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

“Rule of Law, Transitional Justice & Gender Politics”: Hague summer school

WT_logo_Grotius_Centre_Summer_SchoolsOur colleague Martine Wierenga writes to encourage readers to enroll in “Rule of Law, Transitional Justice and Gender Politics,” this year’s Human Rights and Transitional Justice Summer School, sponsored by Leiden University’s Grotius Centre for International Law Studies, located at The Hague in the Netherlands.

Here’s a description of the week-long summer school, to be held July 4 to 8, 2016, at Leiden’s Hague campus:

Transitions from conflict to peace mark transformative moments for accountability, justice and gender politics. In many contexts, the very process of transition presents new opportunities to rethink existing gender narratives and inequalities. sanjiBut it also creates certain frictions in relation to gender conceptions (e.g. feminism versus gender inclusiveness), patterns of victimization or agency. In contemporary international practice, there is tendency to ‘mainstream’ gender discourses into legal and political responses. This summer school takes a critical look at this phenomenon. It explores how different institutional approaches, bodies of law and school of thoughts shape gender discourses and conceptions. It pays particular attention to the framing and implications of international criminal justice on gender discourses. It studies newly emerging approaches Teresa_Doherty1towards gender justice in different fields, such as peace settlements, international jurisprudence, fact-finding and reparation practices, as well as violence against boys and men. It also addresses tensions that arise in the interplay of these different fields (e.g., human rights, criminal law, development). It draws on specific country experiences (e.g. former Yugoslavia, ICC situation countries) to examine the nexus between international responses and local context. It further studies gender politics and complementarity.

The week will feature are area of lectures, role-playing, and other learning exercises. As detailed in the programme, the summer school will open with a keynote address by International Criminal Court Judge Sanji Mmasenon Monageng (above right). Later in the week, Justice Teresa Doherty (above left) of the Residual Special Court for Sierra Leone will lecture on “Gender justice in the field.”

Among other scheduled speakers are 2 IntLawGrrls contributors:

► Dr. Catherine O’Rourke (below left), Senior Lecturer in Human Rights and International Law at Ulster University, on “Gender narratives and politics” (prior posts)orourke-2

► Kate Orlovsky (below right), Programme Researcher, ICC and ICL Programme, International Bar Association, on “Gender Politics and complementarity” (prior posts)

Also slated to give lectures are:

► Dr. Chris Dolan, Director Refugee Law Program, Makerere University, Uganda, on “Violence against men and boys”

Erin Gallagher, ICC Investigator, on “Fact-finding and gender”orlovksy

Michelle Jarvis, Principal Legal Counsel, International Criminal Tribunal for the Former Yugoslavia, on “International jurisprudence and prosecutorial practices”

► Dr. Alejandro Kiss, Legal Officer, Trial Division, Chambers of the International Criminal Court, on “Reparation policies and practices”

► Dr. William Schabas, Professor of Human Rights Law and International Criminal Law at Leiden, on “Sierra Leone Truth and Reconciliation Commission: Efforts to address gender-based violence”

Marieke Wierda, transitional justice expert, on “Introduction to Transitional Justice”

Details and registration here.

Tailoring Protection of Civilians to State Capacity:The Role of Regional Human Rights Protection Measures

Julieta Lemaitre (Associate Professor at Universidad de Los Andes) and Kristin Bergtora Sandvik (Senior Researcher PRIO and Director for the Norwegian Centre for Humanitarian Studies)

The 2016 UN Agenda for Humanity states that minimizing human suffering and protecting civilians requires strengthening compliance with international law. In response to this call, a new PRIO policy brief offers a complementary vision of protection of civilians (PoC) as a spectrum of possibilities that includes local self-protection efforts, legal strategies, and the practice of judicial and quasi-judicial bodies. The approach is illustrated by the life-cycle of the protection measures ordered for the Colombian Kankuamo by the Inter-American human rights system.

Today, many contemporary armed conflicts and threats to civilians coexist with existing state bureaucracies and civil societies, however fragile. Hence there is a more general need for a better understanding of legal protection measures in relation to the goal of protecting civilians in armed conflicts and the goal of strengthening state capacity to abide by the rule of law.

The PoC agenda arrived at the scene of international politics as a central normative ambition only at the end of the Cold War. When picked up in reaction to the civilian suffering in civil wars and genocide throughout the 1990s, PoC was transformed from a set of limited legal regulations and a doctrine pertaining to the conduct of the military into an organizing principle for international engagement in conflict-ridden countries.

Historically, PoC was understood as a legal principle, within the application of international humanitarian law, as promoted by the International Committee of the Red Cross. From the 1990s, PoC has evolved into a guideline for the intervention of humanitarian organizations. Despite a high international profile, the realization of the PoC agenda has been hampered by conceptual confusion, operational difficulties, and insufficient understanding of how normative developments and the self-protection efforts of civilians can best be aligned. Moreover, the ‘humanitarian imperative’ to protect has involved an increasing militarization of PoC, whereby PoC has become identified with increasingly robust UN peacekeeping activities.

In the 2016 Agenda for Humanity, the Secretary General calls for a concerted global effort to prevent the erosion of international humanitarian and human rights law, demand greater compliance with them and uncompromisingly pursue the protection of civilians.

Responding to this call for a recentring of law in the struggle to protect civilians, we argue that PoC should be imagined as a spectrum of possibilities, with an emphasis on subsidiarity and state capacity. When tailoring PoC to state capacity, international and national legal bodies are the means for holding states with the capacity to protect civilians accountable for their security. PoC is then operationalized through state action and civil society efforts to shape and monitor implementation. This requires an expansion of territorial control by the state, especially by a state bound by the rule of law, and not just the extension of control by state armed forces and paramilitary allies acting outside the rule of law.

Taking a bottom-up approach to this process makes visible how grassroots actors strategically use legal protection as part of their self-protection efforts, and how state response is entangled in its own interests. To that end, this brief makes reference to the successful experience of the Kankuamo people in Colombia, and the complex relation between protection measures and actions taken by both the state and Kankuamo authorities to curb violence against civilians.

You can read this policy brief here.

This policy brief is an output from the project Protection of Civilians: From Principle to Practice, funded by the Norwegian Research Council under the HUMPOL program. The project aims to ascertain the role and impact of contemporary policies and practices of PoC. The project is organized under the auspices of PRIO and the Norwegian Centre for Humanitarian Studies.

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.

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Guilty Verdict in Guatemala Trial on Sexual Slavery and Sexual Violence as Crimes Against Humanity

After almost a month-long trial, Judge Yassmin Barrios and her two colleagues on February 25 found two military officers guilty of crimes against humanity in the form of sexual violence, sexual slavery and domestic slavery against 11 Maya Q’eqchi’ women. The defendants, former Col. Esteelmer Francisco Reyes Girón and former military commissioner (local army representative in rural areas) Heriberto Valdez Asig, were sentenced to 120 and 240 years in prison, respectively. The first was also found guilty of the murder of Dominga Coc and her two young girls, while the second was also convicted of the forced disappearance of seven men, who were the husbands of the women. The defendants were convicted for both direct participation and for their roles as those in charge of the base.

As narrated in an earlier post, the case had its origins in the families’ efforts to establish legal title to their lands in eastern Guatemala. Local landlords called in the army, which treated the local population as “guerrillas,” detaining the men, who were never seen again. Once the men were captured and disappeared, the women were considered fair game. They were moved to the outskirts of the military base, where they were forced to take turns cooking, cleaning and being raped by soldiers. The judgment found that the victims’ accounts of the rapes, corroborated by former soldiers and men who had been imprisoned and tortured in the military base of Sepur Zarco, were credible and proved the elements of the crime.

Guatemala’s penal code art. 378 is a hybrid of crimes against humanity and war crimes, and includes “inhuman acts against a civilian population.” Earlier cases had established that unenumerated acts could constitute inhuman acts even if not explicitly described in the law, so long as they were criminalized in national or international law. The prosecution and civil complainants (a coalition of women’s groups) presented expert evidence on the criminal nature of sexual violence, sexual slavery and domestic slavery under international law, on the political roots of the crimes in land issues, on military structure and other themes.
At trial, the women covered their faces with traditional shawls to hide their identity. Supporters noted that the women had been subject to stigma and isolation when they returned to their communities, while defense lawyers tried to paint the women as prostitutes who were now seeking to cash in on reparations payments with the support of foreign NGOs. The judges would have none of it, recognizing the courage of the women “for appearing, testifying and publicly denouncing the multiple sexual attacks to which they were subject, which have undoubtedly left them with irreversible post-traumatic stress.” The judges found that the women were treated as war booty, and that the fact that they no longer had husbands made them available, in the eyes of the military, for any kind of abuse.
0b197ffc-afde-4014-85b7-818c0c6869b6_749_499“Acknowledging the truth helps to heal the wounds of the past and the application of justice is a right of the victims and helps strengthen the rule of law in our country, creating awareness that these types of crimes should not be repeated,” Judge Barrios declared.
This is the first case in a national court convicting military defendants for crimes of sexual violence and sexual slavery committed against their own citizens. As discussed here and here, international and internationalized criminal courts to date have been reluctant to, and not very good at, charging and proving these crimes, although upcoming cases may change that. It shows the importance of long-term work with groups of victims – one of the coalition of groups, ECAP – had been providing psychosocial help to the victims for over a decade. It brought together women’s groups (another of the civil complainant groups is called Women Transforming the World), groups working with indigenous women, and human rights groups. And it showed the importance of insisting on making national courts do their job, fighting impunity even under very difficult circumstances.