IJCentral: International Justice Central

By Mariana Rodriguez-Pareja


In June 2011 – only a few months after a brutal crackdown on mass protests – King Hamad Bin Isa Al Khalifa of Bahrain announced the establishment of an independent panel of legal experts “to investigate and report on the events that occurred in Bahrain in February and March 2011” and the subsequent consequences arising out of those events. The international community welcomed the positive development, inconceivable only a few months ago. The Bahrain Independent Commission of Inquiry (BICI) was established and was met with both hope and skepticism.
On November 23rd, after four months of investigations, the BICI made public their report and their findings.

The Panel

The five-member inquiry panel was comprised of individuals of internationally recognized independence, impartiality, integrity and expertise. These individuals included: Professor Cherif Bassiouni, recent Chair of the UN Human Rights Council and member of the UN panel investigating the situation in Libya; Justice Philippe Kirsch, former President of the International Criminal Court (ICC) and member of the UN panel investigating the situation in Libya; Sir Nigel Rodley, current member of the UN Human Rights Committee and former UN Special Rapporteur on Torture; Dr Mahnoush Arsanjani, former UN legal advisor; and Dr Badria al ‘Awadhi, expert on international and Sharia law.
Interestingly, Dr. Philippe Kirsch and Professor Cherif Bassiouni have experience with the International Criminal Court. Dr. Kirsch is the former President of the ICC and was the Chair of the Diplomatic Conference on the Establishment of an International Criminal Court in 1998 – also known as the Rome Conference. Professor Bassiouni was the Head of the Drafting Committee of the Rome Statute at the Rome Conference and one of the most renowned academics on international criminal law.

Mixed Reactions and Skepticism

In New York, United Nations Secretary General Ban Ki-Moon welcomed the decision to launch a probe to investigate the incidents. His spokesperson issued a statement on Ban Ki-Moon’s behalf in which he “welcome(d) this development and underscore(d) that the commission should be granted full access to all individuals, organizations and information relevant to the investigation.”  Moreover, UN High Commissioner for Human Rights, Navi Pillay welcomed the move and said she was confident it would meet international standards and noted that her team would examine the details of this “major development.”
Bahrainis remained skeptical, however, as to the reasons the King would establish such a Commission.  Some viewed the BICI as an attempt to whitewash the human rights violations committed by the Bahraini Government, even questioning and attacking the integrity of its Commissioners.

Bad Record

Bahrain’s human rights record is quite controversial, and has been described by Human Rights Watch (HRW) as ‘dismal’. The government has closed or banned human rights organizations at various times, imposed travel bans on human rights activists, tried and sentenced civilians in military courts, and has jailed human rights defenders and activists (many of who have reportedly been tortured). Throughout the years, numerous governments and organizations have called on the Bahraini government to comply with its obligations under international treaties that it has joined. However, its human rights record has not improved.
In 2010, HRW cited reports of 430 missing and detained persons who remained unaccounted for by the government. The case of Ayat al-Qurmezi, a poet and student who was sentenced for reading aloud a poem at a pro-reform rally, made international headlines; she was reportedly tortured while in detention.
Furthermore, as part of the “Arab Spring,” Bahrainis peacefully protested at the Pearl Roundabout in Manama, mirroring Tahrir Square in Cairo. A brutal repression followed and since 14 February, approximately 50 people have died.  The Pearl Roundabout monument was destroyed in an attempt to completely eliminate any reminder of this part of Bahrain’s history. The Gulf Cooperation Council sent in troops at the request of the Bahraini government to restore peace and order. On 14 March, the King declared Martial Law.

Human Rights Violations

The 503 page report of the BICI is divided into 12 Chapters, in which they go through Bahrain’s history, relevant legal aspects of the country’s legal system, construct a narrative of the events that took place in February and March, 2011 and at the Salamiya Medical facility, and investigate human rights violations.  The Commission determined that it was not its task to determine “which side was responsible for what outcomes”, but that in order to understand the evolution of the events, they had to look at the facts and their “underlying causes”.  They concluded that what occurred in March/Feb and in its aftermath was a result of “an escalating process in which the government and the opposition have their share of responsibility in allowing events to unfold as they did.”
The Commission criticized the government for the lack of accountability and the culture of impunity throughout the security agencies of Bahrain. This was especially evident in the excessive use of force, particularly by the Ministry of the Interior, in dealing with what were for the most part peaceful demonstrations. Grave violations of human rights included the deprivation of life, torture, and arbitrary detention in addition to the demolition of mosques and the systematic expulsions and firings on of students and laborers.  It also documented attacks on migrant workers.
In the case of torture, the report found that “many detainees were subjected to torture and other forms of physical and psychological abuse while in custody”, indicating that this type of behavior was both systemic and systematic by certain government agencies. While there were no reports of torture after June 10, other forms of ill-treatment were still reported.
Victims indicated they were coerced to sign statements or confessions implicating themselves and others for criminal conduct. The most common techniques, according to the report were blindfolding, sleep-deprivation, exposure to extreme temperatures, verbal abuse and threats of rape. Unfortunately, the government took little if any steps to investigate the widespread allegations of torture.

Recommendations

The Panel made several recommendations to the King, including the need to adopt legislative measures requiring the Attorney General to investigate the claims of torture and other forms of cruel or inhumane treatment, plus training sessions to the judiciary and prosecutorial personnel to ensure their activities contribute to the prevention and eradication of torture.
But most importantly the report highlights the need for reconciliation in the country. The need to reach a point of better understanding and appreciation of human rights, including the respect for religious and ethnic diversities is crucial.  At this moment, there is no program in schools or with the mass media, reaching out to all Bahrainis, to try to reconcile both the Sunni population and the Shia minority.
Yet the culture of impunity for Bahrain security forces seems all but over.  The Commission was only meant to be a first step.  Where the government was quick to attack other findings on the events in Bahrain, the report was meant to confirm – by a Commission established by the King himself – the widespread violations of human rights throughout the country.
That part is now done.
The second part would be to seriously take into account the recommendation of the Commission to establish an independent and impartial national commission to follow up and implement the recommendations of the report.
That part has not been done and will only leave Bahrain with two options, to continue on a path to reconciliation and justice, or allow a return to the status quo of impunity for human rights abuse.
The imposed selection of the members of the committee, without allowing those entities to choose for themselves, as well as in the lack of accountability for the human rights violations almost a full year after the beginning of the protests, raises concerns over which path Bahrain is following.
Protesters have taken back to the streets and the numbers are growing.  How far is the government willing to push its population?

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Mariana Rodriguez-Pareja is a Communications expert and a human rights advocate with a special interest in international justice. Twitter handle: @maritaerrepe.

NEW YORK, Dec 20 (Reuters) - The five countries that contribute the most funding to the International Criminal Court are seeking to cap the court’s budget for the third year in a row, according to diplomats involved in the negotiations.

The budget negotiations are taking place in New York this week as part of the annual meeting of the Hague-based court’s 120 member countries.

Japan, Germany, Britain, France and Italy, which together contribute more than half the court’s funding, have pushed for zero growth in the court’s budget because of the global financial crisis, said the diplomats, who declined to talk on the record.

The five states are trying to ensure that the “budgetary constraints of all member states are well reflected in the ICC budget,” said a French diplomat.

The International Criminal Court, which investigates war crimes, crimes against humanity and genocide, had a budget of 103 million euros ($134 million) for 2011, 20 million euros ($26 million) short of what it says it needs for 2012.

The court has not received a budget increase for two years. In 2009, its budget allocated funding for 218 prosecution staff, responsible for investigations in four places. In 2011, the same allocation covered investigations in seven places.

Asked what a zero-growth budget would mean in practical terms, ICC Prosecutor Luis Moreno Ocampo said, “No Cote D’Ivoire. No Libya.”

The court’s highest-profile detainee is Ivory Coast’s former President Laurent Gbagbo. The court is due to hold a hearing in June next year to decide whether to confirm charges against him related to violence after disputed elections in Ivory Coast last year.

In Libya, the court has issued arrest warrants for Saif Al-Islam, the son of former leader Muammar Gaddafi, and Abdullah Al-Senussi, the former Libya intelligence chief. It must also investigate complaints against those who supported the uprising, Moreno Ocampo said in an interview with Reuters last week.

Moreno Ocampo noted that three of the countries calling for a cap on the ICC’s budget, Britain, France and Germany, voted in favor of a UN Security Council resolution referring Libya to the court. “States parties referred Libya to us and now they say they can’t pay,” he said.

Not all countries support the budget cap, and some say they would be willing to contribute more. “Certainly African states are not supportive of a zero-growth budget,” said Dire Tladi, legal adviser to the South African Mission to the United Nations.

Many African nations want the ICC to launch investigations in countries outside their continent, where all the court’s current investigations are based.

While the court’s budget is normally adopted by consensus, those involved in the negotiations said it may go to a vote this time. Negotiations, which were scheduled to end last week, are now set to end on Wednesday.

Jonathan O’Donohue of the international justice program at Amnesty International said a budget squeeze would undercut the court’s mission. The ICC must be able to threaten to prosecute if national courts fail to act. If the court cannot bring new cases, its threats will be empty, O’Donohue said.

(Reporting by Rebecca Hamilton)

Concessions since Uprising

Uprisings started 10 months ago in Yemen to demand an end to chronic poverty, rampant corruption and lack of economic opportunity characteristic of the 33-year long rule of its president, Ali Abdullah Saleh. When Mr. Saleh first became Yemen’s president in 1978, the country had suffered two decades of civil war and violence. Mr. Saleh, a former military officer with little formal education is said to have consolidated his power over the years by dividing or co-opting rivals and building a patronage system that he alone controlled, leaving Yemen with a barren political environment and hollow institutions. Since the uprisings against his authoritarian rule started in February, the president has made gradual concessions while still remaining in power. He called for a national unity government, an offer that was turned down. In February, he declared, as did the former Egyptian president prior to his ouster, that neither he nor his eldest son, Ahmed, head of the elite Republican Guard, would run for the next election. This echoed a false claim in 2005 when Mr Saleh promised not to run again, only to change his mind the year after.

On March 20, Mr. Saleh fired his cabinet as demonstrations against him grew. On March 21, some members of his regime such as army commanders and one of the country’s most important tribal leaders began supporting protesters and called for Mr. Saleh’s immediate ouster. Several Yemeni officials resigned from the government, including the mayor of the southern city of Aden. On April 23, Mr. Saleh said he would accept a shift of power to his deputy 30 days from the signing of a formal agreement and grant him and his family, who occupy key positions in Yemen’s security apparatus, immunity from prosecution. This proposal was agreed upon seven months later.

Behind the November 23rd agreement

Seeking an exit strategy, it seems President Ali Abdullah Saleh sought to learn from Yemen’s history and to avoid the fate of the two presidents who had preceded him, both having been assassinated. Saleh signed the U.S.-backed power-transfer deal, brokered by neighboring countries, on November 23rd in the Saudi capital of Riyadh. The deal allows Mr. Saleh to retain his title and certain privileges until new elections are held. Yemeni lawmakers are also expected to pass a law granting him immunity from prosecution. The agreement officially transferred power to his vice president, Abed Rabbo Mansour Hadi. Other terms of the agreement include holding elections for a new president set for February 21, 2012 and the creation of a military committee to tackle Yemen’s problems and to “end all of the armed conflicts.” The agreement shows progress in responding the protestors’ demands for democratic transition, as it is the first time Mr. Saleh actually consented to give up formal authority. Yet, questions still remain surrounding other remnants of the regime, as his son and three of his nephews retain powerful posts in the military and intelligence service. While the agreement certainly makes issues at hand, such as Saleh’s avoidance of this fate, easier, it is still unclear as to whether this proposal eases or complicates the Yemeni transition to democracy.

Mr. Saleh’s interest in accepting this proposal is multi-faceted.  One motivation for him to concede power was due in part to threats of sanctions by world powers, in the face of Saleh’s apparent intransigence. Other aspects included financial and travel restrictions; Mr. Saidi, the former United Nations ambassador, said Mr. Saleh had been warned that the Security Council would consider freezing his family assets, and that he might be banned from travel and referred to the International Criminal Court.  Mr. Saleh and his family are believed to have hundreds of millions of dollars in bank accounts and real estate in the United States and Europe. A potential travel ban might have been especially troubling to Mr. Saleh, who may need more treatment for serious wounds sustained in a bomb attack on his presidential palace on June 3rd.

Non-universal Justice
The November 23rd agreement is a favorable exit strategy for the Yemeni president, but what about the Yemeni people? Many protesters in Sana’s “Change Square” said they felt that their popular revolt had been hijacked by political elites and their foreign backers, and were angered by reports that the president and his family would receive immunity from prosecution. Nobel peace laureate Tawakkul Karman was awarded the Nobel Peace Prize this year, along with two other women, for her role in the protest movement that sought Saleh’s ouster. Showing her disapproval of the terms of the treaty agreement, she is advocating for the president’s accountability for crimes committed, stating, “I promised the people in Yemen ... that after they announced I won the Nobel Peace Prize that the first job I will do is taking the file of crimes of Ali Saleh to the ICC”. She is backed by tens of thousands of protesters in Yemen, who have distanced themselves from the formal opposition movement. While Karman has urged the International Criminal Court prosecutor to launch an investigation into the violent crackdown on dissent in Yemen by Saleh, at the same time, she acknowledges the small prospects for this to actually happen, as Yemen is not a signatory state to the Rome Statute, the court’s founding treaty. The only way the prosecutor could launch an investigation is through a recommendation by the United Nations Security Council, as was the case in Libya.
Based on current Yemeni legislation, it seems that crimes beyond those of the president and his family are to go unpunished. On November 27, Mr. Saleh declared a general amnesty for those who had committed wrongdoings during the uprising since it began 10 months ago. It was unclear whether he meant to pardon his own forces accused of killing protesters, or fighters commanded by his rivals during months of bloody fighting. Not exempted from prosecution, however, were those tied to the bombing on his presidential palace in June. Saleh called for those “groups or parties or individuals” responsible to be brought to justice. The incident left him with severe burns to his face and arms and he was taken to Saudi Arabia for treatment.

Future Effects of Yemen’s Revocation of ICC Ratification

The potential role of the ICC in prosecuting crimes in Yemen has taken on a mysterious turn. Back in 2000, Yemen signed the Rome Statute. Following this on March 24, 2007, the Yemeni House of Representatives voted in favor of ratification of the Rome Statute, which would make Yemen a state party to the ICC and place it under the court’s jurisdiction. Yet, in the subsequent procedure of having the president approve the ratification or call for a revote by the Parliament, the Yemeni Parliament voted against the Rome Statute of the International Criminal Court, retracting the majority vote that had been put in place for it on March 24, 2007. Those who voted against ratification claimed that it was contradicting the constitution and Islamic Sharia, yet rumors have stated that the overwhelming majority of the ruling party had received instructions from President Saleh to cancel their previous vote for the agreement. In light of this recent agreement on November 23rd to grant immunity for President Saleh, one can probably understand the reasons behind the vote back in 2007.  Based on the current terms of the agreement for Saleh’s ouster, only justice without accountability has been achieved, and the viability that this impunity allows for a democratic transition shall be tested in future months as a new government is set to emerge.

Please send any observations or interesting articles to my attention at Nadine@skylightpictures.com or to our Facebook page at https://www.facebook.com/#!/TheReckoningArabic.

Today sees the start of the 10th session of the Assembly of States Parties to the ICC in New York, where he ASP will select six new judges and formalise the consensus candidate for the next Chief Prosecutor of the ICC. To celebrate this momentous occasion in international justice, IJCentral is launching its first ever international justice podcast. This episode includes analysis of what to expect at the ASP from John Washburn and Matthew Heaphy, an interview with the prolific IJ blogger, Mark Kersten, and the latest news from the international justice tribunals. Our host is Hannah Dunphy. Listen to her IJCentral radio debut, and share with your friends.

Sincerely,

The IJCentral Team

Post- revolutionary Elections

Egypt’s first free elections since the fall of Hosni Mubarak began last week as voters from nine governorates including Cairo and Alexandria went to the polls to elect candidates for the lower house of Parliament. This event is the first time in several decades that Egyptians have been able to do so; under Mubarak, elections were constantly rigged for members of his National Democratic Party to remain in power. The turnout rate of 70 percent came as no surprise to the vigorous population that was able to overthrow an authoritarian leader in the collective desire for democratic reform. Voters from the remaining districts will vote on December 14th and again on January 3rd. With voters electing leaders based on party platforms and ideologies, their choice will be based on ideas they wish to see implemented. During the revolution, Egyptians were united on common human rights goals: “Bread, Freedom and Social equality”. How these needs will now take form differs from party to party.  Egypt is now beyond its “honeymoon phase” of revolution and now the path to democracy begins as elections are gradually breaking down society into different multifarious factions.

The elections followed several tense days of uprisings in Cairo’s Tahrir Square against the Supreme Council of Armed Forces (SCAF) where Egyptians expressed discontent with the prolonged military interim rule and its attempts to claim permanent powers allowing it to intervene in civilian politics and to preserve its current rights (such as protection from public scrutiny) under the constitution. The ruling force, headed by Field Marshall Hussein Tantawi, is widely seen as a remnant of Mubarak’s rule, and therefore, undermines the purpose of the January 25th movement to abolish the tyrannical ruling power. More strongly present than the leadership traces of Mubarak’s regime were the physical tear gas canisters used against the protestors. These “non-lethal” weapons that were used to suppress the protestors are the same ones that have been imported and used throughout the post-Nasser era. Since Sadat’s open door policy, Egypt has been a heavy recipient of U.S. military aid and foreign investment.

Stability at the expense of Social Justice

U.S. manufacturers are granted export licenses by U.S. government agencies such as the Departments of State and Commerce. In considering this military aspect, what exact role does the U.S. play in the Middle East revolutions? My previous writings have examined its intervention in Libya, its stance against Syria, and its destruction in Iraq. In Egypt, it is indirectly complicit in the killings of hundreds of protestors in the revolution, through the sale of arms. Ending its contracts to the Egyptian military—the second-highest recipient of U.S. aid after Israel—would be strategically and financially unrealistic. At the same time, on the Egyptian end, this policy would end the last vestige of stability at a financially and politically tumultuous moment in its transition. But in a country where stability is equated with the former and corrupt regime, should “stability” trump justice?

In the midst of these concerns, anxiety was raised around the parliamentary elections—were they even possible in the midst of this chaos? Yet the turnout on November 28th showed the people’s cooperation in what is perhaps the quickest option for transition to civilian rule, i.e. the election of civil leaders. In light of the results of just the first round of elections, Egypt’s military rulers stated they would control the process of writing a constitution and maintain authority over the interim government to keep in check the power of Islamists who have shown a significant lead. Their claim was that as it stands, the parliament does not represent all Egyptians –not that protestors think the army represents their own interests at all. This was done in the presence of mostly foreign journalists and is a means for the army to maintain its interests with and support from the U.S.

This act by the army once more brings the moral question of social justice versus stability. Clearly, with an Islamist electoral landslide, there are fears that a pluralistic, inclusive system might not be achieved. There are also views that the shift of the Muslim Brotherhood from opposition group to leading force in power would necessitate its acceptance of a more moderate platform for state administration. Many secular and liberal Egyptians have been shocked to learn of the far-reaching support for the right-wing Salafi religious group. In that case, a military supervision of the constitutional procedures might ensure that the constitution would protect the rights of all members of society and not be biased toward a fundamental Islamic interpretation or exclude minorities such as Christians. In justifying the army’s stance, General Mulla stated, “We have a lot of other factions such as workers, farmers, engineers and doctors who are not in Parliament.” But the acceptance of the interference of the military regime in political affairs would also undermine the democratic values that Egypt aims to acquire post-revolution and once more explores the conflict of social justice versus stability. Stuck between Scylla and Charybdis, what will Egyptians do?

Foreign Policy: Should Political Islam be feared?

With the Muslim Brotherhood and more conservative factions gaining the lead in the elections, questions have been raised about possible shifts in Egyptian foreign policy. Would the next leadership end the peace treaty with Israel? Will Egypt continue to receive foreign investments which sustain the top tier of society but bypass the economic needs of the lower classes? How will Egypt’s role in the “peace process” be affected—will it continue to serve a passive role and prolong the status quo in Israel? All these are questions where stability and social justice come into conflict, and where the next leaders of Egypt will have to make important decisions. Some leading presidential candidates have confirmed that Egypt would maintain its ties to the U.S. and Israel, explaining that faced with its current national tumultuousness, Egypt cannot significantly alter its foreign policy.

One must look at events in retrospect and compare the worst fears with those of the past. Thirty years of oppression, corruption, economic and social injustice have (almost) been done away with. Whatever government emerges, it will be held accountable to the people. It will be elected for short, 4-5 year terms, after which it can run for reelection. With new democratic policies in place, any government not supported by the people will not be reelected. However, undermining this democratic process from the beginning—before even waiting to see the final results of the elections which should be evident during the first weeks of January—will sabotage the nascent democratic system in Egypt. It is clearly an example of the military rule acting on fears, not facts. What should be done at least for now is to wait for the final result of the elections.

The January 25th Revolution, while emanating from different classes of society and expressing socioeconomic and political concerns shared by all under an oppressive state, only really saw a heavy participation of the urban population that was able to sustainably fight for the rights of Egyptians. What they fought for was democracy, meaning the voicing of the opinion of citizens from other areas who generally have more conservative views, and whose participation in the elections has brought out this overwhelmingly conservative turnout. Whether the military should and will intervene in the constitution writing in order to, as they claim, make it more inclusive, might open another chapter of uprising.  What can, however, be learned from the past is that stability at the expense of the dignity and social justice of the people cannot be sustained for long.

Please send any observations or interesting articles to my attention at Nadine@skylightpictures.com or to our Facebook page at https://www.facebook.com/#!/TheReckoningArabic.

By Mariana Rodríguez-Pareja in Buenos Aires and Salvador Herencia-Carrasco in Lima

President Dilma Rousseff signed in November the Law creating a National Truth Commission (Comissão Nacional da Verdade) to investigate human rights violations that may have been perpetrated in Brazil between 1946 and 1988.

Despite some attempts to establish the record of human rights violations, Brazil has been in much need of truth and justice for many years. There has never been a comprehensive official account of the human rights abuses committed during the military dictatorship of 1964-1985.

In this context, Brazilian Congress passed a bill establishing a Truth Commission that will work under the scope of the presidency (under the organ called Casa Civil) and will operate for two years. It must be noted that this law does not revoke the 1979 Amnesty Law and will not only investigate the abuses committed by the military regime, but also possible crimes committed during democratic regimes as well. Needless to say that this Commission will investigate violations perpetrated until 1988, the date when the current Political Constitution was adopted.

Democracy Interrupted

The military coup of 1964 was significant in the history of Latin America because the military dictatorship was the first one to rule institutionally, not based on the authority of a caudillo or a charismatic leader. It was also ideological, based in the extreme-right “Doctrine of National Security”, largely developed by the Brazilian military.

During the dictatorship, the State was responsible for systematic human rights violations, including extrajudicial killings, forced disappearances, torture, arbitrary detentions, and the curtailment of free expression. Sources report that more than 10,000 Brazilians fled the country during those years; around 50,000 persons were detained just in the first months of the dictatorship and 400 were desaparecidos.
Despite all the efforts undertaken by the civil society and the Church, the exact number of tortured, disappeared and killed has never been clearly established. Two reparation boards established during the governments of Fernando Henrique Cardoso and Lula da Silva have recognized the dignity of the relatives of the disappeared, and have compensated survivors, but there has never been an authoritative narrative. This will be one of the main tasks of the Commission.

The only exception to official silence was a report from the Archdiocese of São Paulo in 1985 describing in detail the commission of tortures and the modes and instruments of torture in police posts; the repressive system; conditions of detentions and the distortion of the law. The report accounts 1,918 cases of torture from 1964 to 1979, noting that its source material excluded an “incalculable” number of other cases.

Importance of Inter-American Rulings

Just like other countries in Latin America, Brazil adopted an Amnesty Act in 1979 to avoid judicial investigation and prosecution over possible human rights violations perpetrated during the military regime. The Amnesty Act, originally demanded by civil society to release political prisoners, was also used to shield government and security officials from prosecution for possible human rights violations. In the Guerrilha do Araguaia Case decided by the Inter-American Court of Human Rights in late 2010, the amnesty Law was ruled “invalid”.

The Amnesty Act, according to the Court, is not compatible with the Inter American Convention on Human Rights. Despite the IACHR ruling, the Act has not been revoked by Parliament.

Readdressing the Truth?

The creation of a National Truth Commission in Brazil was agreed after a long discussion between the different political parties in Congress and with the support of the Human Rights community, including all former ministers of Justice since the return of democracy.

The Commission will be formed by seven eminent Brazilians appointed by the President, whose names have not yet been made public, it will have two years to work on a report with their findings. The number of Commissioners and staff foreseen in the bill raises some concerns, since the bill allocates only a dozen staff for such an extensive investigation.

At first glance, it seems that the creation of the Truth Commission will help Brazilians to learn what really happened in the country. However, critics say the Commission will not have enough time to carry out a serious investigation in only two years. The time frame of work cannot be extended and the investigation will have to carefully review 42 years of Brazilian history. The Commissioners will have the difficul task to investigate alleged crimes committed under five civilian governments and by the military officials that ruled the country from 1964 until 1985.
Finally, the Act does not lift the Amnesty Act adopted in 1979, which shields from prosecution those who might have carried out crimes against humanity during the era of military rule It remains to be seen if – acting within this constraint – the Commission will manage to be independent, effective, and unleash a process of soul-searching in Brazil that will finally probe the effects of the amnesty on the national psyche and culture.

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Mariana Rodriguez Pareja is a Communications Expert and Human Rights Advocate. Twitter: @maritaerrepe
Salvador Herencia Carrasco. LL.M. University of Ottawa, Legal adviser of the Andean Commission of Jurists. E-mail: sherencia@cajpe.org.pe

Critics of international criminal justice say it is too slow, expensive and hobbled by politics. However, in November 2011 the pace and effectiveness of international criminal justice increased. Important developments in the International Criminal Court (ICC) situations in Côte d’Ivoire, Darfur (Sudan) and Libya are cases in point.

These are positive developments, not only for the ICC, but also for international criminal justice in general. They are also timely as states parties to the Rome Statute prepare for the Tenth Session of the Assembly of States Parties (ASP) that starts on Monday 12 December 2011.  This ASP session is particularly important because state parties will elect the incoming prosecutor of the ICC. On 1 December, the current ICC Deputy Prosecutor Fatou Bensouda, a Gambian national, emerged as the consensus candidate. This is an obvious victory for Africa that has been calling for an African prosecutor for a long time.

The most recent development was the surrender and transfer to the ICC of former Ivorian President Laurent Gbagbo on 29 November. Gbagbo was transferred to The Hague by Ivorian authorities pursuant to an ICC arrest warrant issued under seal on 23 November 2011. The arrest and surrender comes almost a year to the day after Côte d’Ivoire`s disputed presidential election that resulted in six months of violence.

Gbagbo is charged with bearing individual criminal responsibility, as indirect co-perpetrator, for crimes against humanity allegedly committed in the territory of Côte d’Ivoire between 16 December 2010 and 12 April 2011. Gbagbo’s arrest is groundbreaking for the ICC as he is the first former head of state to be transferred to the Court, which previously issued arrest warrants for Sudanese President Omar Hassan al-Bashir and Libyan leader Colonel Muammar Gaddafi. However, al-Bashir remains at large and Gaddafi was killed in Libya in October 2011. Supporters of international criminal justice hope that his arrest will set a precedent for the arrest and transfer to the ICC of powerful sitting or former heads of state charged with committing international crimes.

Gbagbo’s arrest and surrender comes against the backdrop of other notable developments in the month of November. The first of these is the decision by a Kenyan High Court judge ordering the arrest of al-Bashir.  Al-Bashir is wanted by the ICC on allegations of crimes against humanity, war crimes and genocide in the western Sudan region of Darfur. The order is directed at the Minister for Internal Security and the Attorney General, who were the Respondents in the application.

The judge made the decision following an application by the Kenyan Section of the International Commission of Jurists (ICJ-Kenya). In his decision, the judge further ordered that if the responsible authorities fail to enforce the arrest warrant, ICJ Kenya or any other individual might compel the responsible authorities to do so.

The decision has been welcomed by African and international civil society organisations as an advancement in international criminal justice. However, the issuance of the arrest warrant is not without diplomatic difficulties. Following the announcement of the decision, the Sudanese government ordered the immediate expulsion of Kenya’s ambassador to Sudan. In addition the Sudanese government recalled its representative in Kenya.

It should be noted that, despite these challenges, the decision by the Kenyan High Court should be applauded. Similar to the Kenyan decision, in 2009 a South African magistrate’s court issued an arrest warrant for al-Bashir who was scheduled to attend President Jacob Zuma’s inauguration. These national responses are important, given that the ICC relies on the cooperation and support of its member states to be effective.

Developments in Libya are also noteworthy. First, the arrests of ICC accused Saif al-Islam and Abdullah al-Senussi by Libyan authorities on 19 and 20 November respectively were significant. Both al-Islam, the son the slain former Libyan leader Colonel Muammar Gaddafi and al-Senussi, the former Libyan intelligence chief, are senior officials wanted for committing crimes against humanity in Libya since 15 February 2011. The two are currently in the custody of Libyan authorities. The second noteworthy development in the Libyan situation is the decision by the Libyan authorities to prosecute the accused domestically. Discussions are currently underway between the Libyan authorities and the ICC on whether the two accused can be prosecuted in Libya in line with the Rome Statute principle that the ICC is a court of last resort.

These developments demonstrate that the pace and effectiveness of international criminal justice are improving. Key to this improvement is that states are taking ownership of international criminal justice in a variety of ways. First, in Libya, the two accused are not only considered to be responsible for crimes committed, but are also very powerful. Moreover, Libyan authorities have expressed their intention to prosecute the accused domestically: an approach to justice that is considered effective by many. Second, a Kenyan High Court recently issued an arrest warrant for al-Bashir in compliance with the country’s obligations under the Rome Statute and its domestic international crimes legislation. Finally, the most recent development saw cooperation of Côte d’Ivoire in the arrest and surrender of their head of state to the ICC.

These recent developments serve to compound critics of the ICC in Africa. The enthusiasm to cooperate with the ICC in the arrest, surrender and prosecution of suspects is driven from the bottom up by Africans themselves.

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By Ottilia Anna Maunganidze, Researcher, International Crime in Africa Programme, ISS Pretoria Office
Original posted by the Institute for Security Studies

OTP Press Release

Today the Prosecutor of the International Criminal Court, Luis Moreno-Ocampo, requested Pre-Trial Chamber I to issue an arrest warrant against the current Sudanese Defense Minister Abdelrahim Mohamed Hussein for crimes against humanity and war crimes committed in Darfur from August 2003 to March 2004.

The evidence allowed the Office of the Prosecutor to conclude that Mr. Hussein is one of those who bears the greatest criminal responsibility for the same crimes and incidents presented in previous warrants of arrest for Ahmed Harun and Ali Kushayb issued by the Court on 27 April 2007. Mr. Hussein was then Minister for the Interior for the Government of Sudan and Special Representative of the President in Darfur, with all of the powers and responsibilities of the President. Mr. Hussein delegated some of his responsibilities to Mr. Harun, the Minister of State for the Interior, whom he appointed to head the “Darfur Security Desk.”

The crimes were perpetrated during attacks upon the towns and villages of Kodoom, Bindisi, Mukjar and Arawala in the Wadi Salih and Mukjar Localities of West Darfur. The attacks followed a common pattern: the Government of Sudan forces surrounded the villages, the Air Force dropped bombs indiscriminately and foot soldiers, including Militia/Janjaweed, killed, raped and looted the entire village, forcing the displacement of 4 million inhabitants. Currently, 2.5 million remain in camps for Internally Displaced Persons.

In the “Prosecution v. Harun & Kushayb” case, Pre-Trial Chamber I ruled that Local Security Committees coordinated these attacks. They were supervised by State Security Committees which reported to Mr. Harun, who in turn, according to the evidence, reported to Mr. Hussein. “The evidence shows that this was a state policy supervised by Mr. Hussein to ensure the coordination of attacks against civilians”, said Moreno-Ocampo.

“Moreover, the evidence shows that directly and through Mr. Harun, Mr. Hussein played a central role in coordinating the crimes, including in recruiting, mobilizing, funding, arming, training and the deployment of the Militia/Janjaweed as part of the Government of the Sudan forces, with the knowledge that these forces would commit the crimes,” said the Prosecutor.

The Prosecutor considered that Mr. Hussein should be arrested in order to prevent him from continuing with the commission of crimes within the jurisdiction of the Court.
After careful consideration, the Office of the Prosecutor has decided to publicly seek a warrant against Mr. Hussein to encourage further public focus on Government of the Sudan policy and actions, and promote cooperation in taking action to arrest Mr. Hussein and the 3 other individuals subject to ICC warrants, as established by UN Security Council Resolution 1593 (2005).

The Prosecutor emphasized that Mr. Hussein is presumed innocent and will be given full rights and the opportunity to defend himself. Pre-Trial Chamber I will review the evidence and make a decision on the Prosecution’s request.
This is the fourth case of the International Criminal Court in Darfur. To date, ICC judges have issued arrest warrants against Ahmad Harun and Ali Kushayb - for crimes against humanity and war crimes; warrants of arrest against Omar Al-Bashir for genocide, crimes against humanity and war crimes; and summonses to appear for rebel leaders Abdallah Banda, Saleh Jerbo and Abu Garda for war crimes.

The Prosecutor will brief the United Nations Security Council on the situation in Darfur on 15 December 2011 at UN Headquarters.

An African Prosecutor, Africa cases, but still an international court.

It was announced this week that Ms. Fatou Bensouda, the current Deputy Prosecutor at the ICC, has been selected to become the next chief Prosecutor and will be sworn in next summer. Although the member states of the Assembly of States Parties (ASP) have come to an informal consensus agreement on Ms. Fatou Bensouda, the official announcement will not be made until December 12th when the ASP meets at the United Nations.

Bensouda’s succession will mark the end of Luis Moreno-Ocampo’s nine-year term as the first Prosecutor of the ICC. Moreno-Ocampo has presided over cases in Uganda, Central African Republic, Democratic Republic of Congo, Kenya, Ivory Coast, and Libya. He has also lead preliminary investigations in a number of other countries across the globe, from Afghanistan to Colombia. A verdict is expected in the trial of Thomas Lubanga Dyilo before the end of Ocampo’s term, which will be a landmark in international justice and the first verdict to be given since the Court’s formation in 2002. Bensouda, as Moreno-Ocampo’s deputy throughout his term, has been involved with all on going trials at The Hague, and is uniquely positioned to continue the current cases to their completion.

Bensouda, a Gambian lawyer, has had a remarkable career to date. She became the first female Attorney General in Africa, and is widely admired on the continent. Getting the support of the African member states of the ICC, which form the largest regional voting block, was integral to her successful bid for the position of Prosecutor. The question is whether the African Union will expect Bensouda to refocus the prosecutorial lens away from the continent once she begins her term.

The African Union has been outspoken in its claims that the ICC is unjustly targeting Africa, and will surely see the election of an African as Prosecutor as an opportunity to affect this perceived imbalance. However, Bensouda’s proven track record of impartiality, strength of belief in the ICC system and in the rights of the victims, is bound to make any such hopes to bully the new prosecutor entirely futile. We expect Bensouda to treat each new case as she sees it according to the evidence, the law, and the limits of her jurisdiction. That Bensouda is African will make little, if any difference, to her judgement on these facts. The institution of the ICC and what it represents is bigger than the nationality or personality of its Prosecutor. Naturally, her effectiveness will depend on a number of factors, which will include the political climate in the international community over her nine-year term, but one thing is sure, Bensouda will be serving the cause of justice, not the political will of the Africa Union, or the US and Europe. At least that is our profound hope here at IJCentral.

U.S. Support for budding democracies in the Middle East

As the Arab Spring movement has unfolded in the MENA region, U.S. president Barack Obama has slowly but steadily supported the democratic uprisings and denounced military action taken against them. Obama delivered a determined albeit late announcement of his support for the revolutions in Egypt and in Libya, and we have seen the U.S. go so far as to provide military forces to NATO to help topple Qaddafi’s regime. The U.S. has also tried to, in facing opposition from other U.N. Security Council member states, push for sanctions against Syria’s authoritarian leader, Bashar Al-Assad.

While the U.S. has been on the supporting side for international democracy and social justice movements, it has not perfectly stood in line with international standards in regards to human rights law. We have unfortunately seen the U.S. apply double standards when it comes to signing onto the Rome Statute, the treaty establishing the International Criminal Court (ICC) and in maintaining funds to U.N. organizations that welcome Palestine as a member state. Examining how the U.S. picks and chooses where it offers supports and where it rescinds it is interesting in trying to determine whether it is overall a truly positive force in international human rights promotion.

Double standards

Following UNESCO’s vote to approve Palestine as a full member of the organization almost one month ago, Washington withdrew funds from the U.N.’s Education, Scientific, and Cultural organization. This action agreed with U.S. legislation mandating the immediate cutoff of any U.N. organization authorizing Palestinian membership. While the U.S. has been quick to criticize other states, it simultaneously refused to take considerable action as Israel announced its plans to create thousands of new settlements in East Jerusalem, the proposed future capital of a Palestinian state. This act is a clear violation of U.N. resolution 446. How the U.S. decision in failing to support the Palestinians and to neglect condemning illegal action by the Israeli government can possibly further human rights promotion or the prospects of a two-state solution in the Palestinian-Israeli conflict is difficult to grasp. A recent NYTimes article suggests that by taking such action, the U.S. would also be putting certain of its reform programs in Iraq and Afghanistan at risk.

The U.S. has a considerable role in the U.N., sitting as one of five permanent members on the Security Council, which also consists of China, France, Russia, and the U.K. Annual estimates of U.S. funds to UNESCO is $60-80 million, which constitutes almost a forth of the organization’s annual budget. Clearly, through its administrative standing and financial support, the U.S. helps the U.N. provide humanitarian aid and intervene in international crises where deemed necessary. But this most recent case of U.S. withdrawal of funds for the interest of its own geopolitical agenda and at the sake of the interest of other U.N. member states puts into the question the genuineness of American support in international organizations. Are international organizations becoming a convenient means for the U.S. to promote its national agenda? How do U.S. leaders decide which organization to join and which to ignore, or even, condemn?

The U.S. and the ICC

Let’s examine the U.S.’s present standing with another international organization, the International Criminal Court (ICC). The U.S. was an initial signatory state to the Rome Statute in 2000 until John R. Bolton unsigned it in 2003 as undersecretary of state for arms control and international security, citing its lack of popular consensus and sovereignty. The main concern with the ICC is that it would allow foreign citizens to hold U.S. former and current government officials, employees, or military personnel responsible for crimes against humanity and war crimes committed abroad. The American judicial system is still internally regarded as supreme to any foreign or international one. The U.S. has also gone so far as to make efforts to discourage ICC members and non-members from extraditing U.S. soldiers or government officials responsible for war crimes during the Iraq invasion and other occasions to the ICC. Such a right is granted in accordance with Article 98, the provision of the Rome Statute establishing the International Criminal Court that prohibits the Court from prosecuting someone located within an ICC member state if doing so would cause the member state to violate the terms of other bilateral or multilateral treaties to which it may be a party.

The U.S.’s not being a signatory state to the ICC does not always necessitate its extrication from international norms. In 1984, President Reagan complied with international law and withdrew troops from Nicaragua upon receiving condemnation by the International Court of Justice. Furthermore, American interests have not always been in opposition to those of the ICC; the U.S. recently supported the ICC’s prosecution of Sudan’s Omar Al-Bashir for mass killings in Darfur and its arrest warrants for Libya’s Muammar al-Qaddafi. These two situations exemplify a union between the promotion of human rights and justice in the Middle East and North Africa, which the U.S. makes a public effort to stand for, and ICC jurisdiction. If the interests of the U.S. and the ICC slowly begin to converge, this begs the question, what possibilities and effects on the dynamic of the ICC would arise if the U.S. were to become a state party? Perhaps the unfolding of other events in the Arab democratic uprisings will trigger further opportunities for U.S. support of the ICC, only time will tell…

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