IJCentral: International Justice Central

The Kofi Annan team that brokered the peace pact after the 2007 elections is worried that powerful forces are regrouping to frustrate the prosecution of post-election violence suspects.

The team monitoring and evaluating progress in reconciling Kenyans and pushing reforms, says communities are being mobilised to defend possible suspects.

“Impunity is re-organising and is fighting back through mobilisation of ethnic constituencies against International Criminal Court intervention,” said the report commissioned by the Panel of Eminent African Personalities.

The survey revealed that senior politicians were determined to terminate or delay investigations and eventual prosecution of key suspects because of its potential to end their political careers.

“It is only the pre-trial chamber that can stop the ICC process. The court can decide to terminate the case or send the prosecutor back to find more evidence,” said the report.

The report prepared by South Consulting from a survey done between July and October warns: “Individual politicians and other influential people have been behind the post-election violence and not communities.”

It is because such individuals have never been put on trial, the report shows, that impunity has thrived and continues to threaten the life of the very communities they claim to represent.

The Kenya National Dialogue and Reconciliation monitoring project draft report, which was to be launched on Wednesday, is of the view that divisions in the Grand Coalition Government continues to hinder ICC’s work.

The report will be discussed by members of the Serena group next week. The report accuses some national leaders of intimidating witnesses.

They had also caused the disappearance of witnesses lined up to give evidence at The Hague if criminal prosecutions are filed. The audit notes that allegations that witnesses had been compromised, coached or intimidated is a threat to justice.

The report comes in the wake of allegations by Eldoret North MP William Ruto that a human rights watchdog had bribed people to testify against him. Justice minister Mutula Kilonzo said that if Mr Ruto does not provide proof, his allegations amount to intimidation of witnesses.

In a letter to the Kenyan government last month, the ICC’s head of International cooperation Amady Ba raised concern over reports that some witnesses had been offered bribes by people who feel threatened by the ICC.

Further, it is alleged that some politicians persuaded key witnesses against participating in the investigations, with promises of land, money and scholarships.

It has been reported that at least six potential witnesses have been flown by the ICC to Europe for their own protection. Another 70 potential witnesses are being protected by human rights groups within and outside the country.

According to the report, some of these witnesses have allegedly been approached and may have been compromised. The ICC has not been depending on government witness protection programmes.

However, the report says that some of those who left the country early are losing interest in the prosecution, citing fatigue and lack commitment to address the violence cases.

There are also allegations that some of the human rights organisations have sabotaged the ICC by releasing important confidential information to alleged perpetrators to help them prepare their evidence and identify key witnesses for harassment, intimidation or even elimination.

The survey indicates, some people in the Rift Valley and Central provinces regard the possible indictment of their leaders as unjustified on the argument of ‘who bears the greatest responsibility’ for the violence.

In spite of that, public confidence in the ICC remains high. Most people expect the prosecutions at The Hague to change Kenya’s political culture of tolerating and celebrating impunity, especially with regard to influential politicians.

The ICC’s Pre-trial chamber II approved investigations into the Kenyan situation about March this year.

source: The Daily Nation

OTP Weekly Briefing 2 - 8 November 2010

Have you worked in the field of post-conflict justice?

Would you like the chance to share the story of your experiences?

If you have ever worked on issues relating to post-conflict rule of law or accountability for atrocities, you are invited to participate in a survey about your work experience. You can take the survey on-line in English here. Or if you would prefer to take the survey in French, click here.

The survey, which is being conducted by yours truly, Professor Elena Baylis at the University of Pittsburgh Law School, should take only about 10-15 minutes to complete.

As thanks for participating in the survey, you will be eligible to win a $100 Amazon.com gift card. One of every 25 people participating in the survey will win. At the end of the survey, you will see a report summarizing the survey responses so far and indicating how your responses compare to those of other survey-takers. You will also be given the chance to request a copy of the final report of this research study.

We would also welcome the opportunity to talk to you about your post-conflict justice work. You will have the chance to volunteer for an interview at the end of the survey. Interviews will be brief (no more than 30 minutes) and can be conducted in person or over the phone.

The purpose of this research study is to learn about the work and career choices of people working on post-conflict justice issues and to examine what effect those choices are having on the development of the field of post-conflict justice. This is the first study to focus on the role of the people involved in post-conflict justice, rather than primarily on its processes or institutions. By participating, you will help us better understand this emerging area of the law—and have the chance to tell your story as well.

The survey is anonymous, and interviews can also be conducted anonymously if you wish. All individual responses are confidential and will be kept secure. The data from the survey will be reported only in the aggregate. There are no foreseeable risks to you from participating in this research study, and the only benefit offered is the chance at winning a gift card. Your participation is voluntary and you may withdraw from the study at any time.

If you have any questions about this study, or if you wish to volunteer for an interview or request a copy of the final report without taking the survey, you may contact me directly at (JavaScript must be enabled to view this email address).

Suspended Higher Education minister William Ruto returned to the country on Monday from Netherlands where he had gone to meet the International Criminal Court investigators and declared that he was satisfied with the trip.

Mr Ruto arrived at the Jomo Kenyatta International Airport shortly after 8am to a rousing welcome. His supporters, friends and relatives who had been waiting at the airport from as early as 5am burst in song, dance and cheers when he emerged from the international arrivals lobby.

Mr Ruto stopped briefly to greet the cheering crowd and thanked them for their support.

He declared that he had returned home glad that there was still room for truth in Kenya, adding: “Ukweli ukidhihirika, uongo utajulikana (When the truth comes out, falsehood will be isolated).”

And using another popular Kiswahili saying, perhaps to drive home his happiness, he added: “Mungu si Athumani, Mungu si binanadamu (God is not a human being).”

After speaking for less than 10 minutes, he left the airport as his security detail struggled to keep his supporters at bay.

Rumours and Lies

He later addressed the media at Nairobi’s Panari Hotel where he trashed as rumours and lies the contents of the Waki Report on the post-election violence and the Kenya National Commission on Human Rights Report - the two documents that have become central in the investigation into Kenya’s post election violence.

He accused the two commissions of denying those adversely mentioned the opportunity to give their side of the story, and further accused judges who compiled the Waki Report of going ahead and lying that he was given a chance.

He said: “Some of those investigations were compiled and they represent quite a bit of rumours and falsehood and propaganda.”

That, he added, was the reason he went to The Hague – “to set the record straight” – and held successful discussions with ICC investigators.

When asked whether he met Chief Prosecutor Luis Moreno-Ocampo, his reply was short, and indirect: “As to whether I went to the ICC to meet a taxi operator, that is for you to decide.”

Present at the news conference included his wife, Mrs Rachel Ruto, his mother Ms Sarah Samoei, and MPs Charles Keter, Joseph Kutuny and Linus Cheruiyot.

source: The Daily Nation

KHARTOUM (Reuters) - Sudan’s security service accused staff at a radio station which focuses on Darfur of working for rebels in the region and for the International Criminal Court, which is seeking the arrest of President Omar Hassan al-Bashir.

Reports in state media on Saturday marked the first official confirmation of a crackdown on the Netherlands-registered Radio Dabanga, whose Khartoum office was raided last week.

“Radio Dabanga was working against Sudan, focused on inciting hatred among the people and aborting the peace process,” the Sudanese Media Center quoted a source in the National Security and Intelligence Services as saying.

“Most of the staff are working for Darfur’s armed groups or for the ICC,” the source added.

Sudan tightly controls radio and television, and refused to allow U.N. radio station Miraya to broadcast in the north of the country. The Darfur peacekeeping mission, UNAMID, has also been not been given permission to begin broadcasts in the region.

Radio Dabanga is one of the few sources of in-depth news on Darfur still on the air. Last week 13 staff at Dabanga and pro-democracy group HAND were arrested along with another prominent Darfuri journalist working for the independent al-Sahafa paper.

No was immediately available for comment at Radio Dabanga.

The ICC issued an arrest warrant for Bashir in 2009 for war crimes in Darfur and added genocide to the indictment this year. Bashir rejects the charges.

The United Nations estimates about 300,000 people have died in a humanitarian crisis when 2 million people fled a counter-insurgency campaign to squat in miserable camps surrounding Darfur’s towns. Sudan blames Western media for exaggerating the conflict and puts the death toll at 10,000.

Neither Radio Dabanga nor HAND has legal status in Sudan. After the ICC arrest warrant was issued several rights activists in Sudan said they were arrested and tortured while others fled the country fearing for their lives. Khartoum expelled 13 aid groups, accusing them of working for the ICC.

Washington criticized Khartoum for the arrests, and rights groups have said Sudan is using a referendum due in January on whether the south of the country should secede as a cover for the crackdown on Darfur.

Fighting between Darfur rebels and the army reignited last week after a lull caused by heavy rains.

The Darfur rebel Justice and Equality Movement (JEM) said it had fought with Sudan’s army in North Darfur on Saturday.

“Yesterday ... JEM clashed with SAF in North Darfur,” senior JEM commander Suleiman Sandal told Reuters on Sunday. “The army was moving to take control of the water sources in the region and we got this information and attacked them,” he added.

Three JEM fighters died and 13 were injured, he said, while the army suffered many losses and retreated. The army was not immediately available to comment but has confirmed clashes in the past week with JEM in South Darfur and North Kordofan, a region neighboring Darfur.

(Reporting by Opheera McDoom; editing by David Stamp)

source: Reuters

Flawed justice system prompts some rape victims to reach out-of-court agreements with assailants.

When 14-year-old Judith, not her real name, was raped in Goma, her father decided not to report the matter to the authorities. Instead, the family of the victim sat down with that of the rapist and hammered out a so-called friendly settlement.

“At least I received the equivalent of a dowry from the family of the boy who had taken my daughter by force,” the father said. “Our two families sat around the table with a few wise men from the neighbourhood and we came to an amicable agreement.”

He added that going to the courts would have meant losing both time and money unnecessarily.

“I didn’t want to call the police because this would have meant a scandal for my daughter and, even if I had done this, nothing would have come of it,” he said.

“Indeed, we always see perpetrators of these acts being released three months after having been arrested and tried, roaming in the neighbourhood and even harassing their victims’ families. So why should I lose my time and unnecessarily spend the little money I have to support my family by going before justice?”

Irène Ntambuka, programme director at Dynamique des Femmes Juristes, a local NGO that provides legal aid to rape victims, says that such agreements in sexual violence cases are becoming more common, largely because of a lack of trust in the local justice system

“People believe that if they go before the courts they will not obtain justice and damages will not be paid,” she said. “On the other hand, if they choose a friendly settlement, they can get a few goats, cows, some money, and so forth.”

New legislation to combat sexual violence was introduced in 2006. Among other things, it raised the age of consent from 16 to 18, and repealed a previous law that allowed those convicted of rape to pay a fine in return for a lighter sentence.

Rape carries with it a sentence of between five and 20 years, as well as a fine of at least 100,000 Congolese francs (approximately 3000 US dollars). In cases where the victim dies as a result of an attack, the law provides for a maximum term of life imprisonment.

But, despite this new law, few people trust the verdicts that are delivered by the courts and tribunals of North Kivu.

Data from the Provincial Commission for the Fight against Sexual Violence, CPLVS, a platform of human rights organisations, indicates that 4,026 rapes were reported in North Kivu during 2009, down from 4820 the previous year.

Eugène Buzake, a lawyer and coordinator for the NGO Synergy for Judicial Assistance, SAJ, says that a friendly settlement agreement reached between two families is often harmful to the rape victim.

“The agreement does not benefit the victim for several reasons,” he said. “The victim is often isolated and does not take part in negotiations. Therefore, her needs are not taken into account.

“Moreover, such agreements favour a victim’s silence, even though the victim can have serious health and psychological problems that need significant assistance. Another consequence is that the agreements send out the message that you can commit rape, as long as you have just a few goats.”

Local residents share different views about whether friendly settlements are a positive alternative to the national justice system. Some say that, given that the Congolese justice system is so slow, these agreements at least provide some sort of closure.

Gilbert, a sociology student at Goma University, said. “It is better to settle all this within the family instead of waiting years and years.”

Others believe that, even if it takes time, the important thing is that perpetrators of rape are punished according to the law.

“This would be an example for others who believe that one can rape if one has the capacity to give the dowry to the victim’s family,” Kavira, a trader at the central market in Goma, said.

This view is shared by Ntambuka, from Dynamique des Femmes Juristes, who said, “It is the dreadfulness of the act that should push the victim to go before the courts to get justice, and not the money.”

A source within a special unit for the protection of children told IWPR that more is now being done to fight sexual violence in eastern DRC, pointing out the “zero tolerance” approach that President Joseph Kabila announced last year.

“Things have changed now,” he said. “Perpetrators of obvious human rights violations should be held accountable. But, for this to happen, victims must report these acts so that we can catch these criminals.

“The question of rape should not be settled within the family. This is the way of encouraging the perpetrator of these heinous acts to continue doing them. We must say no to this.”

But Ntambuka says that a lot remains to be done.

“Justice should get closer to the people,” she said. “For instance, we know that Masisi, Walikale, Rutshuru and Nyiragongo territories have no courts [that can handle rape cases] and depend on Goma. How can a victim go from Walikale to Goma, which is more than 200 kilometres away, in order to get justice? This is something that the government really should think about.”

She added that there should also be awareness campaigns so that people, especially women, become familiar with justice and how they can obtain it. She also said that the government should address the problem of prison conditions, starting with the infrastructure, since this is what facilitates the escape of prisoners, making people think that there is no justice.

source: Institute for War and Peace Reporting

A prominent member of Sudan’s governing National Congress Party (NCP) told VOA the renewal of U.S. trade sanctions will not negatively affect President Omar Hassan al-Bashir’s government insisting Khartoum is “accustomed [to] and immune” from the sanctions.

Rabie Abdelati Obeid said the sanctions are yet another demonstration of what he described as America’s arrogance and dictatorial tendencies towards the government in Khartoum.

“I don’t think these sanctions have any justification except that it will only prove that it is oppression by the United States administration,” sais Obeid. “It also shows that the American administration did not acknowledge the sovereignty of Sudan.”

Obeid said Washington’s renewed sanctions are regrettable.

“[The] United States involved herself in an internal issue of Sudan. And, I think, that this is a very serious intervention in a domestic issue and also shows the arrogance of the American administration. I also do not think that this will help for the smooth running of the upcoming referendum, which should be carried out in the beginning of the year 2011,” Obeid said.

This came after Washington renewed trade sanctions for another year, but says they could be re-evaluated after January’s independence referendum in the semi-autonomous south Sudan.

In a letter to Congress, President Barack Obama wrote that the conditions that warrant the sanctions, Sudanese support for terrorism and its complicity in violence in the Darfur region, have not be resolved.

He calls Sudan’s actions and policies an extraordinary threat to American security and foreign policy. But, U.S. officials say the sanctions would be reviewed if the Sudanese government takes a cooperative approach to two separate January referendums on the country’s future.

Obeid said the renewed sanctions against Khartoum are not a good sign of cooperation from Washington.

“I can say that this will be considered as biased of the United States of America towards the south more than showing justice [towards the north]. And, this will not be acceptable by the Sudan government and it will not be accepted by the free people of this world,” Obeid said.

He further said that the sanctions will not have any negative impact on Sudan’s economy.

Voters in south Sudan are to decide if the area becomes independent or remains part of Sudan. The oil-rich Abyei region will also vote on whether it stays in Sudan or joins an independent south Sudan.

source: Voice of America

The final witnesses scheduled to give evidence in the Thomas Lubanga war crimes trial are expected to complete testimony by November 25, Presiding Judge Adrian Fulford said today.

The defense will then file an application asking judges to consider dismissing the case. Judge Fulford stated that because the defense had been preparing this application for months, it might be able to file the application shortly after the completion of the testimony.

“This has been a very long time coming so we would hope that your submissions are in very large measure already prepared,” said the judge. “Of course with you needing the opportunity to make appropriate adjustments depending on the evidence that is given by the final outstanding witnesses.”

He suggested that it would be desirable if the defense filed the application before the Christmas break, which commences on December 17. The defense will provide a response tomorrow.

Last January when the defense case opened, lead defense counsel Catherine Mabille said the defense would call witnesses to testify to how intermediaries of the Office of The Prosecutor (OTP) coached and bribed witnesses, and then ask judges to dismiss the case on the grounds of abuse of process.

The defense contends that a fair trial for Mr. Lubanga cannot be ensured when “such a significant part of the trial is based on fabricated evidence.”

All the scheduled defense witnesses have already testified, and the court is currently hearing from some of the OTP intermediaries and investigators implicated in corrupting evidence. The prosecution has called some rebuttal witnesses to testify before the defense files its application.

Although Mr. Lubanga’s trial resumed on Monday last week after a three months’ hiatus, only two witnesses have testified so far. Both of them – an intermediary and an OTP field liaison officer in the Democratic Republic of Congo (DRC) – had given evidence earlier this year. Both have testified with voice and face distortion, with almost their entire testimony given in closed session.

Mr. Lubanga stands accused of conscripting, enlisting, and using child soldiers in armed conflict in the DRC during 2002 and 2003 while he purportedly headed the Union of Congolese Patriots (UPC) and its armed militia.

The defense has stated that if the trial is not dismissed, it will not endeavor to show that there were no minors amongst the ranks of the UPC militia. Instead, it will provide evidence that Mr. Lubanga did not play a part in recruiting or using child soldiers, but when he could worked strenuously to demobilize child fighters from the group.

Meanwhile, prosecutors said today that ‘Witness 38’ who had been expected to testify in the week of November 8 would only be able to travel to The Hague on November 12. This witness had been earlier been scheduled to testify last week, but could not travel because he did not have a passport and visa. Judge Fulford described as “exceedingly bad news” the report that the witness would be delayed further.

This witness, who has previously testified for the prosecution, will give evidence that the intermediary who introduced him to the OTP never asked him to falsify evidence or to lie to the prosecution or the court.

The trial is expected to continue tomorrow.

source: The Lubanga Trial

November 2, 2010 (WASHINGTON) – The New York-based Human Rights Watch (HRW) issued a report last week accusing Sudan of failing to act on the recommendations of the African Union panel on Darfur (AUPD) which was headed by the former South African president Thabo Mbeki.

“A year is far too long to wait for the government to get serious about the panel’s recommendations for justice for the horrific crimes in Darfur,” said Elise Keppler, senior counsel in the international justice program at HRW.

“And with attention now focused on the referendum for the future of southern Sudan, the panel’s work risks being forgotten” Keppler added.

A year ago, the AU Peace and Security Council (AUPSC) summit in Abuja endorsed a report prepared by AUPD which was tasked with crafting a formula to resolve the conflict in Darfur that would take into consideration peace, justice and reconciliation.

The panel was formed weeks before the International Criminal Court (ICC) issued an arrest warrant for Bashir prompting skepticism from Darfur rebels and other critics who say that the AU wants to circumvent the indictment, something which Mbeki has denied in meetings with Darfur IDP’s.

The former Egyptian foreign minister Ahmed Maher who was on the panel revealed after recommendations were released that their goal “was to find a way out” for Bashir from the ICC row. Mbeki was reportedly outraged on the remarks but did not issue a formal response.

The AU has been opposed to Bashir’s indictment and instructed its members through two resolutions not to cooperate with the Hague-based tribunal in apprehending the Sudanese president even if they are legally obliged to do so under the Rome Statute to which they are signatories.

AUPD called for establishing hybrid courts to try war crimes suspects and changes to Sudanese laws. It took no position on the ICC warrant except to say that the Hague-based tribunal cannot try all the suspects, effectively supporting its work.

However, the Sudanese government and its officials including Bashir expressed rejection to the idea of the hybrid court.

Last month, the Sudanese justice minister Mohamed Bushara Dousa fired the Darfur special prosecutor Nimr Ibrahim Mohamed and replaced him with his Undersecretary Abdel-Dayem Zumrawi. During the two years Mohamed exercised his functions as special prosecutor he has not announced any indictments in connection with human right violations committed in Darfur since 2003.

HRW said that Sudan recent history casts doubts over its willingness to prosecute war crimes suspects.

“Given Sudan’s long record of inaction on justice for victims in Darfur, the new promises for domestic prosecutions are woefully insufficient,” Keppler said. “Stonewalling by Khartoum on justice is what led the Security Council to refer Darfur to the ICC in the first place.”

“In Sudan, longstanding impunity for the state’s use of brutal ethnic militias to attack civilians in the south set a precedent for similar atrocities elsewhere. This likely factored into Khartoum’s decision to use the same strategy again with devastating results for civilians in Darfur and continues to fuel abuses on a daily basis. Intensified fighting between government and rebel forces, and between other armed groups in 2010, has killed hundreds of civilians” said a briefing paper by the HRW on the one year anniversary of the Mbeki’s panel.

The rights watchdog said that Sudan has to show political will for the hybrid court to see the light and urged Khartoum to accept international involvement in prosecutions and implement reforms to its judicial system.

“A number of well-documented flaws in the domestic criminal justice system—such as lack of adequate fair trial protections, broad immunities for certain categories of individuals, use of the death penalty, and lack of witness protection programs—are likely to prevent a hybrid court situated in the domestic system, or other domestic prosecutions, from meeting benchmarks for fair, effective prosecutions consistent with international law and practice”.

“The high-level panel has made clear that Darfuris deserve justice,” Keppler said. “The AU and other key international actors should press Khartoum to cooperate with the ICC and to act on the panel’s justice recommendations.”

But it is unlikely that any action will follow soon on the recommendations of the panel relating to Darfur particularly as Mbeki’s focus has now shifted towards the South Sudan and Abyei referendum scheduled for January 9, 2011.

Preparations for the key votes in South Sudan and Abyei have proceeded haltingly amid political and logistical obstacles, and the southerners have accused the northerners of stalling, warning of violence if the referendum is delayed. Furthermore, it is all but certain that the Abyei referendum will be delayed as the commission to oversee it has not been established yet. Northern officials have publicly asserted that the disputed border area will not have its vote held as scheduled as issues of border demarcation and eligibility of voters have yet to be resolved.

Mbeki is trying to break a stalemate after talks collapsed last month between north and south Sudan over who will be eligible to vote in Abyei which is inhabited by the Dinka Ngok and the Arab Misseriya who migrate each year to Abyei looking for pasture for their cattle.

Last Friday, US president Barack Obama spoke with Mbeki on the phone to discuss the referendum with both sides affirming that it should not be delayed.

source: Sudan Tribune

A team of investigators from the International Criminal Court - ICC will interrogate 10 security chiefs over the 2007/2008 post election violence.

The officers will receive summons by Tuesday next week and statement taking will start on November 24th.

The announcement was made Wednesday in Nairobi when the ICC team met Lady Justice Kalpana Rawal and officials from the State Law Commission.

Lady Justice Rawal confirmed that she has received questions from ICC that will guide the process of statement taking.

She has pledged to protect all those who will give evidence to the ICC.

She says she will ensure that none of the security and provincial chiefs giving evidence implicated themselves.

Most of the statement taking sessions will be done in-camera apart from instances where they will be done in public.

The ICC had indicated it was interested in questioning at least five Provincial Police chiefs and PC’s who were in office before and during the post election violence.

Mr Moreno-Ocampo plans to use the statements of the government officials to prepare his application for arrest warrants against six individuals he accuses of masterminding the violence.

source: Kenya Broadcasting Company