IJCentral: International Justice Central

By Mariana Rodriguez-Pareja and Salvador Herencia-Carrasco*

There are currently 120 States Parties to the Rome Statute of the ICC but this number will increase to 121 in a few months. This Thursday, January 26, Guatemalan Parliament approved the ratification of the treaty. With this decision, Guatemala will join 15 other Latin American countries to be part of the ICC, pending similar efforts by Cuba, El Salvador and Nicaragua.

This vote was welcomed by the civil society, which has been working towards the signature and ratification of the Rome Statute for more than 10 years.

Ratification is a welcoming effort towards the future

As written before for IJCentral, Guatemala is a Latin American country shattered by violence and genocide resulting in the death of 200,000 people and victimizing an entire nation between 1960 and 1996. The report of the Guatemalan Truth Commission (Comisión para el Esclarecimiento Histórico), concluded that government forces under the de facto presidency of General Efrain Rios Montt perpetrated more than 600 massacres, homicides, forced disappearances, and other heinous crimes, particularly against rural and indigenous communities. A quarter of a century later, the country still carries the scars of a violent past with little accountability for those responsible for systematic human right violations.

But things are changing. In an effort towards justice, in August 2011, a local tribunal in Guatemala City convicted four former soldiers from an elite unit of the Armed Forces to 6,060 years each for the massacre of Las Dos Erres, where government forces assassinated 200 people, including women and children. This has been seen as an important advance in the process of the country’s recovery and set an important precedent for justice in Guatemala.

It should be noted that despite the lack of comprehensive legislation on international criminal law and human rights in the country, many of its core principles have been already binding on the state through the 1969 American Convention on Human Rights and the rulings of the Inter-American Court of Human Rights. The Rome Statute and several rulings by Ad-hoc tribunals (e.g. the International Criminal Tribunals for the Former Yugoslavia and Rwanda) have been used as interpretative tools for human rights organizations to claim justice before national and foreign tribunals. The most notorious case is the Spanish Audiencia Nacional, which has been trying cases on Guatemala regarding genocide, under universal jurisdiction.

What delayed the accesssion?

In a similar way to the cases of El Salvador and Nicaragua, the delay in the ratification of the Rome Statute had political, rather than legal reasons. In these cases, the argument was the fear that the ICC could investigate crimes against humanity perpetrated during the internal armed conflicts, namely enforced disappearances and torture.

In the case of Guatemala, the Constitutional Court rendered a favorable opinion in 2002 whereby no constitutional amendment is needed in order to ratify the ICC.  Nonetheless, Congress was historically opposed to ratification. Last week, upon entering into office and in his inaugural speech, President Pérez Molina, a former military General, referred to the International Criminal Court and said his administration “was willing”to become party to the Rome Statute.

In this context Congress swiftly included this issue in the agenda, adopting by 129 favorable votes, this Thursday, Decree No. 3-2012, approving the ratification of the Rome Statute. Now, the President must sign and publish the Decree for its final enactment. This is a simple procedural rule that should take place in the following days, considering that the decision to ratify the treaty came directly from the Executive Branch.

At the same time, human rights activists celebrated the fact that former President Rios Montt appeared for the first time in a Guatemalan court, where he will be prosecuted for counts of genocide and crimes against humanity. General Efrain Rios Montt has since been placed under house arrest and the judge announced that there is sufficient evidence for him to stand trial in Guatemala. This is a mighty step towards justice, and a huge victory for those in Guatemala who have fought relentlessly for accountability for the crimes committed under Rios Montt’s command in the 1980s.

ICC for the Future

When a country joins the ICC it does not exclude any other means of justice. Guatemalan and other international organizations should continue to advocate for justice for victims of atrocity crimes and genocide committed in Guatemala.

The ICC is a Court of last resort and states that become parties to the Rome Statute accept that if they are unable or unwilling to prosecute the grave crimes contained in the Statute the ICC shall apply its jurisdiction to bring those criminals to justice.

The human rights violations perpetrated for 36 years must be addressed by the Guatemalan state or by tribunals that have jurisdiction.

Guatemala’s ratification of the treaty will contribute to strengthening its judicial system and rule of law throughout the country.

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* Mariana Rodriguez-Pareja is the Director of the Human Rights Program at Asuntos del Sur (ADS). Twitter handle: @maritaerrepe

Salvador Herencia-Carrasco, LL.M. University of Ottawa, Legal Adviser of the Andean Commission of Jurists. E-mail: sherencia@cajpe.org.pe

10 years on and the ICC is yet to find its place in the world

By Mariana Rodríguez-Pareja and Salvador Herencia-Carrasco

2012 marks the tenth anniversary of the entry into force of the Rome Statute; it is an appropriate time to make a critical, yet constructive, balance of the most important international organization created since the United Nations. Needless to say, when the Rome Statute was adopted on July 17, 1998 followed by its swift entry into force on July 1, 2002, expectations were high. But it would prove impossible for a nascent and exceptional International Criminal Court (ICC) to meet the demands of human rights violations around the globe.

A decade in a nutshell

Almost 10 years after its entry into force, muchof that enthusiasm has been lost, replaced with demands for the ICC to begin to fulfill its duty. But it is not easy to create an institution from scratch, especially when the Court’s mandate is the “power to exercise its jurisdiction over persons for the most serious crimes of international concern”.

As of today, 120 countries have ratified the treaty and the voices criticizing the existence of the Rome Statute have substantially diminished. The ICC is currently investigating 14 cases in 7 different situation countries, and during the 2010 Review Conference the Crime of Aggression was adopted. The United Nations Security Council has referred the situations of Darfur and Libya, granting the ICC jurisdiction over two of the most desperate humanitarian and political crises in the 21st century. In addition, the ICC has triggered the so-called “peace vs. justice debate”, concluding that justice and peace are not in existential opposition.

Despite these significant achievements, the ICC is yet to conclude a single judgment (the ruling on the Lubanga case is expected in the coming weeks), the Office of the Prosecutor (OTP) has failed to open an official investigation in any country outside Africa, despite the existence of grave situations that fall under the jurisdiction of the ICC in Latin America. Furthermore, the final drafting of the Crime of Aggression could suggest that it will take a long, long time for this crime to come into force.

In this context, 2012 could not be any less welcoming

The global economic crisis hampered the increase of its annual budget needed to conduct more investigations in the field; the last election of six ICC judges at the Assembly of State Parties showed old and bad habits by States struggling to elect their own officials and the recent release of Callixte Mbarushimana because of deficiencies in the way the OTP handled the case. These have triggered a number of criticisms towards the ICC.

Implementation and Complementarity: Who helps whom? 

One of the most important aspects in the adoption of the Rome Statute is the principle of complementarity and the need for States to adopt implementing legislation regarding international crimes and judicial cooperation with the ICC. This has prompted countries around the world, including those under preliminary examination and situation countries, to discuss and/or enact laws regarding the application of International Criminal Law, as well as the triggering of national prosecutions.

Perhaps it is Latin America where the most significant progress has been made in this field, both at the national level as well as within the framework of the Inter-American Court of Human Rights. Despite the fact that most cases in this region concern international crimes perpetrated outside the temporal jurisdiction of the ICC, the significance of the Rome Statute has prompted this significant judicial and legal accomplishment.

However, this cannot be considered to be enough. As a court of last resort, prosecuting only those alleged to be most responsible for committing the most heinous crimes, the ICC should also work to strengthen its role in capacity building within national judiciaries. If the Court aims to comprehensively strengthen the current international justice system and the rule of law, it must work (without compromising its independence) to ensure that State Parties are capable of investigating and prosecuting international crimes.

From Preliminary Examination to Official Investigation: No clear standard, no clues, lost efforts…

One of the major criticisms that academics and NGOs have made of the ICC and the OTP is the lack of a clear policy regarding the identification of situations that may lead to an official investigation by the Court. Although it would be impossible to harmonize standards for places as different as Afghanistan and Colombia or Palestine and Nigeria, as of now the decision to open an investigation seems to reside on elements outside the sole legal framework of the Rome Statute.

Colombia, continued Unresolved Business

Colombia has been under the ICC radar for 6 years now. Its domestic Criminal Code has a substantial regulation regarding international crimes. But, the country has been suffering an internal conflict for more than four decades; a conflict that appears unceasing, in which political corruption, drug-trafficking, paramilitaries and a high-level of violence are characteristic.

In 2006, the OTP declared it was “examining alleged crimes within the jurisdiction of the Court and investigations/proceedings conducted in Colombia against […] paramilitary leaders, politicians, guerrilla leaders and military personnel.” Later, the OTP added that it was also analyzing allegations of international networks supporting armed groups committing crimes in Colombia. But the Court has not formally commenced any investigation because of the complementarity assured by the Rome Statute.

After back and forth, meetings and exchange of information, the ICC concluded the Colombian judiciary was both willing and able to carry out its own investigation of the crimes. Therefore, the situation in the country is classified as a “situation under analysis.” In its December report on Preliminary Examinations, the OTP states that “There is no basis at this stage to conclude that the existing proceedings are not genuine”.

However, civil society organizations consider that the Colombian judiciary is not addressing past and present international crimes, including gender violence, correctly. Despite several visits by the OTP and other ICC officials, local NGOs continue to call for ICC action in Colombia, with as yet no official response from the Court.

Honduras, the Forgotten Coup

Honduras is party to the ICC and seven years after ratifying the Statute, President Zelaya was forcibly removed from his office by the military in 2009. The Head of Congress, Mr. Roberto Micheletti was appointed as provisional President, and served until Porfirio Lobo was elected President of Honduras later that year.

NGOs sent communications to the ICC on crimes against humanity being committed since September 2009. But in November 2010, the Argentine ICC Prosecutor Luis Moreno-Ocampo announced publicly his decision to conduct a preliminary analysis of the situation. Even though his decision was welcomed, there has not been any update on the actions carried out by the Prosecutor’s office to date.

NGOs continued to call on several occasions for the protection of human rights defenders, journalists, and social activists. Human Rights Watch (HRW) has also shed light on police brutality, lack of accountability for human rights abuses committed in the context of the coup, and lack of judicial independence.

Before turning 10…

In spite of the above, we must not forget that the Rome Statute is the most important instrument presently available in the international criminal justice system to prevent mass atrocities and to bring justice to victims of heinous crimes. It is also the first institution to put forward high standards in terms of monitoring gender crimes, fairness of proceedings and victims’ rights.

The challenges of the ICC include the efforts to continue the ratification process of the Rome Statute in the Middle East and the Asia-Pacific, to work in the strengthening of national judiciary and to deliver rulings that will become a benchmark to judges worldwide. In this scenario, a more transparent policy regarding preliminary examination and criteria for the selection of cases would also be welcomed.

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Mariana Rodriguez-Pareja. Director of the Human Rights Program at Asuntos del Sur (ADS). Twitter handle: @maritaerrepe
Salvador Herencia Carrasco is the Legal Adviser to the Andean Commission of Jurists. E-mail: salvadorherencia@yahoo.com

El Salvador joins Guatemala and Nicaragua as the only Central American countries that are yet not States Parties to the International Criminal Court (ICC).  These three countries not only share their refusal to become party to the Rome Statute, but also share a common history: all three experienced non-international conflicts during the 70s, 80s and 90s, where several human rights and humanitarian law violations took place.  In each country there are currently different processes of redress underway for the atrocities committed during those conflicts.

In the following article I will only refer to the Salvadorian situation. In that sense, it is important to take into consideration the historical background of this country.  El Salvador suffered one of the most violent non-international conflicts in Latin America that left 75 thousand dead, and included enforced disappearances, extrajudicial executions, and outright massacres.Having those facts as background, one can see that the ICC has a special importance in a country like El Salvador.  In that sense, the preventive and dissuasive elements of the ICC would have a strong significance for El Salvador; not only because these elements will prevent such terrible crimes taking place again in El Salvador. But also in the case of more crimes occurring, and when the state is incapable or unwilling to prosecute the authors, there will be a fair and impartial tribunal that can judge the crimes.

Since the international adoption of the Rome Statute, El Salvador has rejected the Court’s principle of international jurisdiction.  An example of this is that El Salvador was one of the Latin American countries to sign a bilateral immunity agreement with the USA in order to prevent US nationals from being sent to the ICC, even when they have committed crimes within the ICC’s jurisdiction.
In addition, during the ARENA (Alianza Republicana Nacionalista) Government (1989-2009) there was a clear opposition to the Rome Statute; ARENA claimed constitutional obstacles prevented it from ratifying.  However, the real concern of the right wing parties in El Salvador (ARENA and PCN, Partido de Conciliacion Nacional) was that the crimes committed during the Salvadorian internal armed conflict could be judged by the ICC.  Apparently these political institutions did not understand the principle of non-retroactive law (freedom from Ex Post Facto Laws) established in Article 11 of the Rome Statute.

In 2009, the Presidential Elections were won by the main left wing party (FMLN - Frente Farabundo Marti para la Liberacion Nacional).  To many sectors of Salvadorian society, particularly the human rights movement, the new political scenario is seen as conducive to the ratification process.  Thus, the Ministry of International Affairs launched a public survey regarding the pros and cons of ratification.  However, results of this survey are still pending. On the other hand, in September 2011, the President of the National Congress, and member of the FMLN, urged the President of the Republic, Mauricio Funes, to send the Statute to the National Congress for ratification.  As yet, there has been no response from the President. It remains to be seen if and when El Salvador will ratify the treaty.

Original in Spanish at Asuntos del Sur: http://www.asuntosdelsur.org/opiniones/opinion/172

Revolutions have been sweeping the Middle East and North Africa for a year now, in what has been commonly referred to as the Arab Spring. When looking back and examining which Arab countries have not yet experienced large-scale protests or anything commonly considered a revolution, one realizes that these countries govern through traditional versus legal forms of domination, i.e., they are hereditary monarchies. The Kingdoms of Morocco, Jordan, Bahrain, as well as those of Oman, Saudi Arabia, Kuwait, the U.A.E. and Qatar, have been left relatively unscathed by the regional revolutionary zeitgeist, which begs the question, why? This piece will not attempt to prove if a monarchy as a form of government is more or less prone to popular revolt, or resilient to calls for reform. It will instead explain certain dynamics of such regimes as compared to their republican counterparts, which have already seen large-scale protests or democratic transition. I find that there are structural differences between the two forms of government, but ultimately there might not be such drastic differences in the prospects of change between the two.

Sources of Change

Arab monarchies have not been characterized by the persistent mass mobilization of their populations, but rather, by appeasement policies and repeated promises of reform. In the past year Saudi Arabia has allowed its women to vote (though not yet to drive); cabinets have been continuously reshuffled, constitutional amendments passed, reviews of government performance published, and economic incentives promised. There has been the constant reminder that the government is willing to engage in ‘open dialogue’ and the King of Jordan has even stated that the “failure to change is a lose-lose proposition”. But what kind of change can really emerge from within the regime itself? The government may promise reform, but essentially, the source of the ‘change’ would remain the monarch.

Initial promises of reform in Arab republics were not enough to diminish escalating protests, and ultimately, leaders were forced to resign. Libya was, and Syria remains, an exception. It was citizens of Egypt, Tunisia, and Libya who were the source of change, and who still continue to work toward achieving democracy. Yet even these bottom-up processes toward reform have faced difficulties, especially as competing opinions arise on how to form new governments and manage the democratic transition. Might it be more effective, then, to instate reform in a top-down fashion, as these monarchies claim to be doing?

Leaderless Revolutions versus Top-down Reform

The revolutions which have so far advanced the furthest are those of Tunisia and Egypt. No doubt they were bottom-up processes, with the social advantage of allowing for the participation of a vast array of society; the poor and the well-educated, Muslims and Christians, men and women. A leaderless revolution has its virtue in mass inclusion, bringing it one step closer toward democracy through mass mobilization. But beyond the point of removing the leader is when the leaderless revolution perhaps presents some difficulties, if not disadvantages.

The issue to be taken with mass inclusion is that during times of disagreement on how to put in place a new government, the remaining reform elements are often established upon what the country had already agreed upon, namely, the old regime’s legal system. This is perhaps exemplified by Egypt’s constitutional referendum, where, given the choice of rewriting the constitution or amending certain parts of it, about seventy percent of voters chose the latter, indicating their reversion to the old legal system, and reflecting a prevalent fear of too drastic change. Essentially, even the mass movements of the Arab republics have not yet been complete removals of the old regimes. Thus, when examining monarchies, is it any different when a king attempts to institute certain changes while maintaining the present governing structure?

Forms of Government Structure and Legitimation

Protests in Arab monarchies have on the whole called for government reform rather than the toppling of the leader. Essentially, this difference comes from the different forms of authority that the people attach to their leaders. As described by sociologist Max Weber, the traditional form of legitimate domination results from a leader’s claim to divine or hereditary privilege. The legitimacy of certain Arab kings in the eyes of their subjects rests on their claims of descent from the Prophet Mohamed. Conversely, legal forms, most commonly associated with democracies and republics, are based on legally rational measures, such as elections. If citizens have placed the leader in power though their consent, the removal of their consent therefore rationalizes his removal.

Perhaps it is then more difficult to imagine the monarch’s cross-generational familial ties with the throne severed in just a few months. Perhaps not. Lisa Anderson indicates in her 1991 article, Absolutism and the Resilience of Monarchy in the Middle East, that “monarchy as currently understood in the Middle East is no more indigenous than liberal democracy”. The families of the current leaders- King Mohammed VI of Morocco and King Abdullah II of Jordan- were actually instated by French and British colonial rule in the 20th century. Left with remnants of colonial structures, these monarchies have been able to remain strong and centralized. The removal of presidents like Mubarak and Ben Ali, and not any Arab kings as of yet, essentially comes down to what it means to cause the downfall of the regime, and not merely the head of state. In Egypt, the army, a strong U.S. ally, still holds power after Mubarak’s fall and maintains certain stabilizing policies of the Mubarak era. But when a monarch is toppled, essentially, the state’s legislative, military, and sometimes even religious allegiances shift, allowing for a greater chance of state decentralization and regional uncertainty. Perhaps fear of this uncertainty is what had deterred the call for the monarch’s removal, until now.

The People Demand the Downfall of the…. King?

Throughout the revolutions, people have expressed their will by chanting, “The people demand the downfall of the regime”. Despite the more drastic outcomes that might result from the removal of a monarch as opposed to a president, citizens of kingdoms have begun expressing the same ambitions. Following sustained protests since February, it was only recently that protestors in Bahrain began calling for the removal of the king himself. This call and response to the king’s speech given last week was voiced by the head of the Bahrain Center for Human Rights, who claimed that it was actually the king whom the people faulted and that that it was since his ascendancy to the throne in 2002 that injustice has been rampant.

In Morocco, the desire for the removal of the king has also been displayed during street protests. According to the NYTimes, the country’s motto “God, the Nation, the King,” has been transformed into “God, the Nation, Liberty”; and “Long live the King” has become “Long Live the People.” Morocco, unlike Jordan and Bahrain, was officially an absolutist monarchy. The king’s first step toward reform was announcing a transition to a constitutional monarchy, yet still allotting himself supreme military and religious authority. But top-down reform measures are not effectively appeasing the people. Just today, AlJazeera has reported the self-immolation of unemployed college graduates, echoing the catalytic action of Mohamed Bouazizi at the start of the Arab Spring. Protestors in kingdoms are slowly starting to adopt methods resembling those of their counterparts in republics. Whether these mass movements will be effective in countries with a heavily centralized king, or whether monarchies will prove themselves immune to change by the people, is to be discovered as the movements develop.

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History of Political Discontent

Within the context of political upheavals in Egypt, Tunisia, Syria, Yemen, and Libya, the revolution in Bahrain is certainly not an isolated event. Dissatisfaction with the ruling family has been cyclical, and over the years there have been small steps taken toward political reform. But amidst the regional effort for overthrowing authoritarian regimes, the current uprising for reform in Bahrain has persisted since February, ultimately becoming a call for regime change, in the hope that the country will embark on its own democratic transition. The current regime in Bahrain, officially known as the Kingdom of Bahrain, is a monarchy led by the Khalifa family. The chief of state is King Hamad, and while he’s only held his position since February 14, 2002 (only, comparative to the decades-long rule of leaders from neighboring Arab states), the prime minister, also the King’s uncle, has been in power since the country’s independence from Britain in 1971. The revolution has been portrayed as simply an uprising of the country’s Shia majority (who constitute 70% of the population) against the Sunni ruling family, but with a prime minister who’s been in power for 30 years, surely the issues at hand are not only sectarian but of national representation and reform.

Since February 14, 2011, there have been injustices committed against Bahraini citizens advocating for their right to self- expression and for government reform.  Peaceful assemblies of protest have been met with violence. Laws have been passed so that even marching in a protest can warrant an arrest for illegal assembly. Military trials have been called for 47 doctors and nurses accused by the Bahraini government of stockpiling weapons, stealing medicine, and inflicting harm on their patients. In their humanitarian efforts to treat protest casualties , they have been accused of trying to subvert the regime. The trials of the convicted medical personnel were resumed earlier this month, for which foreign coverage was restricted. 

According to Nabeel Rajab, a prominent Bahraini human rights activist, in 2004 the government shut down the Bahrain Center for Human Rights after its director accused the prime minister of responsibility for the country’s systemic corruption. The director was subsequently, and still remains, imprisoned. The current liberation movement has been a collective effort comprising sectarian, political, economic, cultural, and social discontent. Nabeel Rajab has also claimed in an interview with Jadiliyya that “some of them are Communists, others are Shia and Sunni, intellectuals and uneducated, managers and workers. This is the first time that we are able to bring together so many people of such diverse backgrounds and cultures in one movement, one cause, and one uprising”. The 1990s uprisings had ended with the declaration of a National Action Charter, meant to place the country under constitutional rule and toward reform. This led to the first parliamentary elections in 2002 and saw a period of economic advancement, but clearly, this has not been sufficient to address the grievances of those still protesting even after the destruction of one of the physical symbol of the protests – Pearl Roundabout.

The GCC, Media and International Double Standards

The struggles against the authoritarian regimes of Egypt and Tunisia were largely played out internally, between pro-government and opposition groups of the same nationality. In Libya, the case was different, with NATO’s involvement in toppling Qaddafi, and in Syria, where observers from the Arab League have been sent to monitor government abuse. In Bahrain, however, neighboring countries and even Western powers have shown an interest in maintaining the current regime. As a member of the Gulf Cooperation Council (GCC), Bahrain’s stability is integral to the economic and political well-being of the organization’s member countries which include other monarchies such as Saudi Arabia, Kuwait, Oman, Qatar, and the UAE. Therefore, these countries have taken action, whether direct or indirect, invited or uninvited, to maintain the current status quo in Bahrain. On March 14, Saudi Arabia sent in troops to suppress the revolutionaries. Regional media outlets, while continuing to focus on developments in Yemen and Syria, have largely remained silent on any such developments in Bahrain. Surely this is not only because Bahrain is a relatively small country, but because of the location of AlJazeera and AlArabiya, the most prominent regional media sources, in GCC countries.

The revolutions seem to have taken the U.S. by surprise, and policies toward different Arab countries have oftentimes been contradictory. According to Human Rights First, “Multiple factors ranging from the influence of the U.S. and Saudi Arabian governments to the lack of access allowed to foreign journalists in the country can be blamed” for the limited media coverage that Bahrain has received, as compared to Egypt, Tunisia, Libya, Syria and Yemen. In spite of the injustices that the Bahraini government commits against its own citizens, foreign relations with Bahraini leaders have maintained the status quo. Despite criticizing Russian and Chinese opposition to intervention in Syria, the U.S. itself continues to sell arms to the government of Bahrain, arms that are being used against Bahraini citizens. At the same time, the U.S. has sent a former police chief to “train” the Bahraini police force on crowd control tactics through the use of “non-lethal” methods such as tear gas. Of course, as evidenced by tear-gas supplied to Egypt, we know that these methods can indeed be lethal and are tools of state-sponsored human rights abuses. Bahraini citizens, initially calling for reform, are now realizing the extent of the state-sponsored corruption which goes so far as to humiliate Bahraini citizens at the hands of foreign personnel.

State of Emergency and Foreign “Conspiracy”

The pattern of government oppression in the region has become all too familiar: citizens hold non-violent assemblies, police are unable to impose crowd control, a national state of emergency is declared, violence ensues. The claim by some governments that the revolutionary movements were “foreign conspiracies” has also been predictable; in Bahrain, there have thus far been claims by the government (attributed to the Shia-Sunni divide) of Iranian involvement in the revolution. It is clear that there has been foreign interest, however, in favor of maintaining the authoritarian government. Without the backing of the Gulf Cooperation Council, it seems Bahrain’s government would have a difficult time maintaining its oppressive and increasingly abusive control over its people. As of March, a “state of emergency” had been declared, and was backed by GCC capitals, especially Riyadh and Abu Dhabi. This law prohibits even peaceful public assemblies and permits the military to suppress them. In March, the GCC pledged $20 billion in financial aid to Bahrain and Oman over a 10-year period to assist the two nations in their struggle with Arab protests. In June, in an effort to salvage Bahrain’s image and economy, King Hamad lifted the state of emergency, offered to renew talks with opposition leaders, and formed an independent commission of experts known as the Bahrain Independent Commission of Inquiry (BICI) to investigate abuses during the February and March protests. But this talk of reform accompanied by contradictory state actions has only led protestors to escalate their demand for regime change.

Abuse Persists, Now with more Observers

Most recently, Nabeel Rajab has been beaten by state-hired personnel, some of whom he claims were Jordanian and Pakistani (the extent of the state’s reliance on foreigners is quite baffling here). The government, on the other hand, has stated that it had found the activist lying on the floor and that it took him to the nearest hospital. A representative of the Gulf Council for Foreign Relations claims that Bahrain is different from Egypt and Tunisia, because the situation is “a reform process, not a revolution”. But abuse and shameless lying cannot be steps toward reform. In the face of continued oppression, it becomes clear that the removal of a regime that tortures its citizens and lies to protect its image is perhaps the only means to bring about real change. But in a country facing not only internal oppression but also regional pressures to maintain the status quo and with the U.S. continuing to sell arms to Bahrain, how loud will the collective voice of Bahrain’s one million citizens have to shout? At least now there is hope in that the world is slowly awakening to the abuse in Bahrain, and civil society organizations have been keeping track of abuses which had largely been hidden since the start of the 2011 revolutionary movements.

So far this blog series has investigated the US-ICC relationship from a historical perspective.  It has become evident that this relationship has waxed and waned from one of initial engagement, but not acceptance, under the Clinton administration, to belligerency under the first several years of the Bush administration, to a more engaging, almost accepting approach under the latter years of Bush and the early years of the Obama administration.  With these previous historical perspectives as our foundation, we may now ask what policy towards the ICC is most beneficial for the United States.  In other words, what approach to the Court serves the United States’ national interests?  In order to engage this question, it is imperative that we first understand the concept of ‘national interest’ before discussing how US-ICC relations affect it.

Oftentimes the literature and debate on US national interest is characterized as contentious and partisan.  I would argue that the contestation concerning national interest is typically not about what constitutes national interest, but the means by which the United States achieves that interest. Generally speaking, there is a commonality that persists in the debate over national interest; and although some (like Ron Paul’s neo-isolationist agenda) remain opposed to this common notion of national interest, others are united around the idea of perpetuating a global liberal order.  The pursuit of what John G. Ikenberry referred to as a “liberal grand strategy” binds together the seemingly different foreign policy agendas of such administrations as Woodrow Wilson, Harry Truman, John Kennedy, Ronald Reagan, Bill Clinton, George W. Bush and Barack Obama.  What they all have in common is the desire to have American liberal values permeate all areas of the global community.  Such values would include: rational leadership, limited and representative government, freedom and liberty of the individual, and substantive equality among these individuals.  Where they differ, as mentioned above, is in the means by which the US achieves this goal.  Should the United States pursue a liberal institutionalist or multilateral policy, a unilateral approach, interventionist policy, or something altogether different?  But in the end, all administrations are trying to perpetuate the global liberal order because it is within this liberal order that the United States remains hegemonic.

So how does US policy concerning the ICC fit into this national interest debate?  In order to address this question, we must first address whether the ICC is a liberal institution.  If US national interest is bound up in the promotion of a global liberal order, then acceptance of international institutions should in some way be predicated on their relationship to liberal principles.  And one only need read the Rome Statute to realize that the ICC is clearly a liberal institution.  This institution accepts the notion of individual equality, protection and equality before the law, election of authority via democratic means, victims’ rights, rights of the accused, and many other legal-liberal principles.  Aside from the use of bench trials as opposed to trial by a jury of peers, the Rome Statute is complementary to the United States Bill of Rights.  Thus, the liberal nature of the Court is simply unquestionable.  This does not eliminate the issues raised by the United States concerning the Court, as discussed in earlier entries in this series, but it stipulates that the ICC retains many of the liberal principles that are inherent in a liberal global order.

How then should this affect US policy concerning the ICC?  This brings us to the final piece of the puzzle, the notion of hegemony.  As I stated earlier, the liberal order is a fundamental part of US hegemony; but what exactly does this mean?  Hegemony is defined as the ability to control outcomes.  Traditionally, this is discussed in a purely material way—which country has the largest military, most advanced technology, strongest economy, etc.  This form of hegemony, not only in its acquisition but also in a state’s ability to sustain this position, is predicated on a more coercive form of authority.  However, another way to conceive of hegemonic authority is via ideational power.  Some, such as Joseph Nye, discuss this as soft power, or power via consent and acceptance as opposed to domination and control.  The Italian philosopher Antonio Gramsci described this form of authority as “intellectual and moral leadership.”  But no matter what we term this form of hegemony, it remains predicated on an intersubjectively accepted understanding of norms and principles that finds its leadership in a hegemonic nation-state working to perpetuate this system.  Thus, its causal source of power is in aligning one’s interests with those of the global community, not in imposing your will on said community in a coercive manner.

If the United States is the current hegemon, and I believe this is empirically accurate, and the causal source of power is the acceptance of a global liberal order, then how should the US approach the ICC?  Bearing in mind the foundational conception of both ideational hegemony and the liberal nature of the ICC, it seems accurate to claim that an oppositional policy towards the ICC is both hindering the international community’s pursuit of global justice and undermining the current status of American hegemony.  This is due to the liberal nature of the ICC and its contribution to the perpetuation of the global liberal order.  As a result, the United States’ ability to pursue its national interest is also being hindered.  One must recall that the basis of American hegemony throughout much of its history has been the pursuit of an international system that reflects its domestic liberal values.  This pursuit exists in both material power and ideational hegemony, or one predicated on soft power.  Thus, US opposition to the ICC and its mandate appears detrimental to the primary goal of American national interest—the perpetuation of a global liberal order.  The only rational policy recommendation is acceptance of the ICC and its pursuit of global justice.  Any other approach to the Court undermines US power as opposed to sustaining it. 

In making this recommendation, it is important to recognize that such a policy originates from a power-based perspective, not a moral one.  Many of the world’s most pre-eminent legal scholars have drafted supportive documents in favor of US support and/or ratification of the Rome Statute based on morality.  As evidenced by the slow and incremental engagement of the ICC by the United States, it is apparent that this line of rational thinking has not fully permeated the mindset of current policymakers.  Thus, this editorial attempts to speak to government officials in a language they can understand—power.  By opposing the ICC, the United States is failing to support its own liberal agenda.  The result of such action is a loss of ideational influence, a decline in hegemonic status, and a defeat for American national interests—in short, a loss of power.  In order to rectify this situation, the US need not openly embrace the ICC and immediately move towards ratification of the Rome Statute; instead, the US should continue to establish a working relationship with the Court and cease its undermining tactics.  The Obama administration has done well to create such an affable relationship with the Court and needs to continue with this approach.  Only such a policy will serve as a foundation for future participation in liberal institution building and as a result, continued promotion of a liberal world order—both of which serve US national interests.

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Read parts One and Two of the special series on the US and the ICC here.

One year has passed since the self-immolation of Mohamed Bouazizi, a Tunisian fruit vendor whose actions ignited a chain of protests against social inequity in the Middle East, and almost as long since the January 25th Revolution in Egypt. The Arab Spring was remarkable in its ability to mobilize citizens through the use of non-violent methods and sometimes, even, through humorous slogans and posters. Yet while some government bodies initially responded to non-violence in the like (i.e. the Tunisian and Egyptian armies), others in Syria and Libya have since the start provoked the use of violence and undermined the main goals of the movement for social justice, better living conditions, and freedom, causing civilians to take up arms against the state.  Last year’s advancement in the democratic aspirations of citizens across the Middle East and North Africa was phenomenal, yet with immediate living conditions becoming dire, a reconsideration of the virtues of the revolution comes as no surprise and leaves it difficult to legitimately claim that the revolution has been wholly beneficial. But sometimes conditions will become worse in order to get better. Overcoming the corruption and civil injustice of previous decades will require consistent efforts toward the rejuvenation of civil society and government.

The issues to be tackled over the coming months are varied and heavy. While I do not claim full understanding of any issue at hand, I’ve outlined my hopes for 2012, using mostly examples from Egypt. The ideas expressed are based on my understanding of the issues through first hand experience and from surveying both U.S. and Middle Eastern reports.

1) Education
Education reform is essential for the emergence of a generation of students receiving a decent public education and college degrees allowing them to attain a career in their field. This problem is not specific to Egypt, but when so many people behind the wheel of a taxi actually have degrees that can place them in engineering and public health positions, the education and economic systems are lamentable. An increase in teacher wages is probably key to eliminating the widespread need for private tutoring outside of the classroom, which has undermined the integrity of public education. What I don’t think is immediately necessary is the alteration of textbook narratives honoring Hosni Mubarak for his service in the 1973 Arab-Israeli War, among other things. Physical evidence of his negation were evident as of March, when none of his previously omnipresent portraits were visible as I roamed Alexandria’s streets. The removal of his portraits, his name from schools and subway stations cannot change history, but positive measures toward changing an education system that aimed to foster blind obedience to the state can help correct the thirty years of Mubarak’s rule which saw Egypt suffer.

2) Moral Reform
With the relatively moderate Muslim Brotherhood and the more conservative Salafi Party soon to hold a majority of legislative power, the external image of Egyptian society might change. If they choose, unwisely, to focus on minute aspects of social reform rather than on larger ones such as the economy, laws might advocate the compulsory veiling of Muslim women or banning certain aspects common to tourism such as alcohol. Who knows? What I hope is that if measures such as these are indeed to be imposed, that steps to remove corrupt practices of the state first be achieved, so that religious reform will logically follow moral reform. Corruption is not compatible with religious ideals of virtue and honesty, and state policies should not encourage citizens to take on religion in a ritualistic sense while opting for daily forms of bribery, political favors, and police brutality in the name of state service or even survival. The degradation faced by citizens at the hands of police brutality continues to be unjustifiable, and the restoration of dignity through moral reform is a priority. For more, please read Alaa al-Aswany’s segments on Social Justice and State Repression in On the State of Egypt and Galal Amin’s Egypt in the Era of Hosni Mubarak.

3) Civil Society and NGOs
In the face of the ever-extended state of emergency law that legalizes censorship, restricts basic freedoms, and allows police forces to detain any citizen suspected of dangerous behavior, the presence of human rights organizations and observers is important to record, if not prevent, violations. Of course the Egyptian Supreme Council of Armed Forces (SCAF) knows this and has been cracking down on those organizations which it feels are funded by foreign powers and present a potential threat . Yet it is essential for these organizations to persist in their struggles in order to help meet the demands of the revolution, and to form strong civil society networks to hold their governments accountable and to establish a strong justice system. The actions of the SCAF to cover up the public exposure of certain violations such as the continued use of tear gas and beatings to disperse protests, by cracking down on human rights organizations, is regrettable. This leads me onto the next topics:

4) Military
The military forces of the Arab countries facing revolution have been pivotal determinants of the country’s ensuing circumstances in their choice of siding with either the leader or the people. The Egyptian military was deemed heroic in its refusal to apply armed force against protesters during the initial days of protest, while Mubarak still reigned. Proof of this sentiment was evident on the streets in Egypt as of March, with slogans painted along the Alexandrian shore claiming, “The army and the people are one hand” and “The army and the people are in Egypt’s service”. Yet this civilian-military unity was subsequently proven false, as the SCAF’s eventual resort to violence against civilians has shown. Is it possible to regain their reputation as heroes? We have yet to see the SCAF reform abusive practices and government policies. My hope for the militaries of the region is that they will not massacre their own people for the short-term goal of keeping the current leaders in power. Their rule shall eventually end, whether by means of internal or foreign influence, but an abusive human rights record will live to tell of these atrocities.

5) Internal Justice and International Organizations
The leaders of Tunisia, Yemen, and Libya have sealed their fate either by finding deals of impunity or facing death. It is Mubarak’s pending trial that is expected to set up a system of accountability. I hope that his trial, and those of his sons and his minister of interior is not merely a symbolic gesture; this needs to set a precedent against the impunity of top-ranking officials and businessmen which had previously pervaded Egyptian trials. Future leaders should remember this trial, should they ever step out of line. Mubarak and his sons should not be executed for justice to prevail, but the trial should set a precedent for the rule of law to establish an effective internal system of justice. In the case of internal justice fallbacks, it would be wise for Arab governments to consider the jurisdiction of international bodies such as the ICC. Delegations from Arab states, particularly Egypt, Kuwait, Jordan, and Syria that participated in the Rome Conference and the Preparatory Commission meetings in 1998, were actively involved in the establishment of the International Criminal Court.  I wish for effective measures to be taken against the systems of impunity present in the region, whether or not this involves the actions of international organizations. The ICC has procedures in place for applying the rule of law to account for the actions of authoritarian leaders, but it can only do so much on its own. There is a need to work with cooperative representatives, and this goes back to my third point on civil society building.

2011 was a year to realize the power of non-violent movements, the strength in thousands of bodies gathered together in a single square, with a single goal. The power of the collective will. 2012 will be a year to explore new methods of government accountability, experiment with new forms of self-expression and push toward new frontiers in justice and civil liberty. Maybe my aspirations have been inspired by viewing the overly-optimistic advertisements on Egyptian television depicting a sun gleaming over smiling citizens proudly waving their flags. Or maybe it’s this positivity that is needed to continue this revolutionary drive, past the toppling of authoritarian leaders, one year since the beginning of the revolution. Of that, at least, I’m certain.

With the sentencing this week of two former Rwandan politicians for their role in Rwanda’s 1994 genocide, the Tanzania-based International Criminal Tribunal continues its work of trying the masterminds of the violence.  In its 17-year history, the tribunal has achieved a number of firsts. 

Mathieu Ngirumpatse and Edouard Karemera, president and vice-president of Rwanda’s then-ruling party, will be spending the rest of their lives behind bars for turning a blind eye to the atrocities committed by their party’s youth wing, the Interahamwe.

They join some 21 others currently serving sentences following trials in which they were found guilty of such charges as genocide, war crimes, and crimes against humanity.

Seventeen years ago, the United Nations set up the International Criminal Tribunal for Rwanda to catch the so-called “big fish,” or high-level organizers, of a methodical, systematic campaign aimed at wiping out the Tutsi ethnic group.  An estimated 800,000 Tutsis and moderate Hutus were killed during several months in 1994.

Since its beginning, the tribunal has indicted 92 suspects and has passed down judgments against 72 people.  These include former government ministers, army commanders, diplomats, journalists, and other Rwandan elite.

Tribunal spokesman, Roland Amoussouga, says the capture and trials of the genocide’s architects have brought about what he calls a “credible and on-going process of national reconciliation and healing” in Rwanda.

“If they were not arrested, God forbid, nobody knows what could have happened to the peace and stability in Rwanda.  At the beginning, when they were not all arrested, there was trouble in most parts of Rwanda,” he said.

Amoussouga says the tribunal’s efforts have complemented Rwanda’s justice system.

In Rwanda, one of the most prominent justice activities has been the setting up of traditional `gacaca’ courts to conduct trials of people accused of committing murder, rape, looting, and other crimes during the genocide.  An estimated 1.5 million cases have been heard since 2001, mostly at the village level.

The International Criminal Tribunal for Rwanda has achieved a number of firsts.  It was the first international court to convict someone of genocide.

On June 24 of this year, the former Minister of Family and Women’s Development, Pauline Nyiramasuhuko, was sentenced to life in prison.  Amoussouga says her conviction sets her apart.

“She was indicted for rape as (a) crime of genocide and she was the first woman to be arrested for genocide, for crimes against humanity.  All these made her unique,” Amoussouga said.

She was tried alongside her son, who is also now behind bars for life.

Amoussouga says the tribunal has built up, in his words, a “substantial body of jurisprudence” on such concepts as “genocide,” “crimes against humanity,” and “war crimes” that can be used in courtrooms in other jurisdictions.  He says the tribunal has also built up an extensive databank of historical evidence of the Rwandan genocide.

But the tribunal has had its share of challenges and criticisms.

Carina Tertsakian is senior researcher at Human Rights Watch in London.  She says that the process has been, in her words, “slow and cumbersome,” too bureaucratic, and punctured with many delays.

But, says Tertsakian, the most serious shortcoming is an omission to confront atrocities committed by a rebel group at the time that forms Rwanda’s current government.

“One aspect in which it (the tribunal) has failed is to prosecute cases of crimes committed by the Rwanda Patriotic Front, the ruling power currently in power in Rwanda.  The Rwandan government has put very, very heavy pressure on the various ICTR prosecutors over the years to drop investigations into RPF crimes, and one by one, sadly, they have succumbed to that,” Tertsakian said.

At the end of 2008, Human Rights Watch sent the tribunal’s prosecutor, Justice Hassan B. Jallow, a letter urging the court to investigate reports of revenge killings of thousands of civilians by the Rwandan Patriotic Front.

The tribunal is set to wind up its work in 2014.

Read original article on VOA here.http://www.voanews.com/english/news/africa/Rwanda-Criminal-Tribunal-Pleased-With-Progress-136146908.html

This past year has been highlighted by drastic political changes across the Arab world and has seen developments in the engagement and prospects of the International Criminal Court (ICC) in the Middle East and North Africa region. Shortly after its toppling of former authoritarian president, Ben Ali, Tunisia acceded to the Rome Statute, making it a state party to the ICC. Libya is not a state party to the ICC, however, after being referred to the Court by the U.N. Security Council, Libya is now one of the ICC’s seven situation countries. So far, the Office of the Prosecutor has requested arrest warrants for Colonel Qaddafi (prior to his death), Qaddafi’s son, Saif al-Islam, as well as the former head of Military Intelligence, Abdullah Al-Senussi. They have been charged with crimes against humanity. While the ICC has been quick to act on certain cases of human rights abuses in the MENA, it has stalled on other issues.

One main issue facing not just the ICC but other international organizations, especially in the past few months, concerns reaching a consensus on Palestinian statehood. After the 2008-2009 humanitarian crisis in Gaza, the Palestinian National Authority filed a declaration at the International Criminal Court (ICC) accepting the ICC’s jurisdiction in the territory of Palestine. Three years later, no clear response has been made on whether Palestine meets the statutory requirements for the ICC to accept jurisdiction there. But the decision for denominating Palestine as a state does not just entail the Palestinian people’s right to self-determination, or a nationalistic struggle for the reclamation of rights to land after more than sixty years. Rather, it entails establishing a system by which to hold the Israeli government accountable for certain crimes it has committed against the Palestinian people on Palestinian territory, as well as holding Hamas accountable for crimes it has committed against Israelis.

Pending: Palestinian Statehood: What can the ICC do for Palestine?

On January 22, 2009, the Office of the Prosecutor (OTP) of the International Criminal Court received an official communication from the Minister of Justice of the Palestinian Authority (PA), Ali Kashan. He placed a declaration with the Registrar under Article 12(3) of the Rome Statute, which allows States not party to the Statute to accept the Court’s jurisdiction. While the PA’s declaration made no mention of the war in Gaza, which took place between December 2008, and January 2009, the request for ICC jurisdiction immediately followed it. On May 3, 2010, the OTP published a “Summary of Submissions on whether the declaration lodged by the Palestinian National Authority meets statutory requirements”. This was a compilation of different opinions regarding the issue, both for and against jurisdiction. One such opinion comes from John Quigley, who states, “If Palestine is not a state, then there is no state that has the capacity to grant the ICC jurisdiction in Gaza. Gaza would be a virtual dead zone from the perspective of the ICC. The only remaining potential bases of jurisdiction would be the nationality of a particular offender, or a referral by the UN Security Council.” The OTP has yet to make its own decision on the issue. This evaluation by the Office would also determine whether crimes within the Court’s jurisdiction have been committed and whether there are national proceedings in relation to the alleged crimes.

In a recent lecture held in New York, Richard Falk, Professor of International Law at Princeton University, also having served as United Nations Human Rights Inquiry Commissioner for the Palestinian territories and as the United Nations Special Rapporteur on Palestinian human rights, spoke of Israeli impunity in regards to international law and the consequences it would face were Palestine to be recognized as a state. The mission for Palestinian statehood is inconvenient for Israel not because it is a unilateral action and, as it states, a digression from negotiations and the “peace process,” but because every step closer to Palestinian statehood is a step closer to holding the Israeli government accountable for crimes committed against the Palestinian people, such as the 2008-2009 incident in Gaza. The main peace settlements that have been put in place in the Palestinian-Israeli conflict have been interim agreements largely characterized by the postponement of any substantive steps toward a Palestinian state and which allow for Israel to respond with alterations of the geographic boundaries, such as creating settlements in East Jerusalem and the West Bank.

With Israeli ratification of the Rome Statute out of the question, as such action would only cause the Israeli government to hold itself accountable for its own actions, it is Palestinian ratification that would hold the Israeli government responsible for crimes against humanity committed against the Palestinian people since the establishment of the court in July 1, 2002. However, in order to investigate crimes committed in Palestinian territories, the ICC must first determine whether it holds state status. As seen in other international organizations, the debate over the recognition of a Palestinian state in Gaza and the West Bank is splitting countries based on their geopolitical interests. The U.S., backing Israel, vetoed the vote at the Security Council. Israel’s impunity with regards to international law, which Professor Falk spoke of, would be altered with the recognition of a Palestinian state, as only states can give consent to ICC jurisdiction over acts committed in their territory, and Palestine, once having ratified the Rome statute as a state, would be able to file a complaint for certain cases of humanitarian violations that Israel has committed on Palestinian soil.

The Prisoner Swap and Moving Forward

Israel and the Palestinian Authority have recently completed a prisoner swap of 1027 Palestinian prisoners for the Israeli soldier Gilad Shalit, held captive by Hamas in Gaza since 2006. According to Human Rights Watch, Israel linked its aerial bombing of Gaza’s sole electricity power station on June 28, 2006, to Shalit’s capture two days earlier and later prevented full repairs to the station. Due to the blockade, the power station’s reduced capacity caused citizens of Gaza to experience an average of eight hours of blackouts each day. Joe Stork, deputy Middle East director at Human Rights Watch, states that “Gaza’s civilians should no longer suffer under Israel’s punitive blockade, and Hamas should end abuses of detainees, whether Israeli or Palestinian.” At the same time, along with fostering mutual respect for human rights, punitive measures put in place would hold perpetrators on both sides accountable and allow for a more effective system of justice.

This past year in the Arab world has seen a striking series of civilian uprising against authoritarian governments. These regional changes have opened up several opportunities for justice seeking and for democratic transition. As the revolutions continue to unfold in Egypt, Libya, Syria, Yemen and Bahrain, it is important not to neglect citizens of regions such as Iraq and Palestine, facing humanitarian crises not just at the hands of their heads of states, but also at the hands of foreign powers. According to the Coalition for the ICC, Palestinian NGOs meeting last year decided that the OTP has compiled sufficient information and arguments and thus should move to the decision phase, in accordance with Article 15(3), to request for authorization of an investigation. With the drastically changing power dynamics in the region, we can only expect for there to be transformations in how citizens of the region respond to international law mechanisms and hope that this is reciprocated in how international institutions respond to them.

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 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…

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.

The International Criminal Court is attempting to make clear that its judges—not the Libyans (and not the ICC prosecutor)—will have the final say on where Saif Gaddafi will be tried:

In accordance with Resolution 1970, adopted unanimously by the United Nations Security Council on 26 February 2011, the Libyan authorities have the obligation to cooperate fully with the Court. On 5 July 2011, a request for cooperation with regard to the surrender of the suspect was notified, together with the warrant of arrest, to the Libyan authorities.

Should the Libyan authorities wish to conduct national prosecutions against the suspect, they shall submit a challenge to the admissibility of the case before Pre-Trial Chamber I, pursuant to articles 17 and 19 of the Rome Statute of the ICC. Any decision on the admissibility of a case is under the sole competence of the Judges of the ICC.

Therefore, contrary to what has been reported in the media, Pre-Trial Chamber I of the ICC remains seized of the case and the Libyan obligation to fully cooperate with the Court remains in force.

But note that the court’s statement is studiously silent on whether Libya can make that admissibility challenge while holding Saif or whether it must turn him over first.

More: If the ICC judges are looking for documentary evidence that Libya is currently unable to conduct a trial of Saif on its own, they can turn to the UN Secretary General’s new report (h/t Denis Fitzgerald):

While political prisoners held by the Qadhafi regime have been released, an estimated 7,000 detainees are currently held in prisons and makeshift detention centres, most of which are under the control of revolutionary brigades, with no access to due process in the absence of a functioning police and judiciary. Sub- Saharan Africans, in some cases accused or suspected of being mercenaries, constitute a large number of the detainees. Some detainees have reportedly been subjected to torture and ill treatment. Cases of individuals being targeted because of the colour of their skin have been reported. There have also been reports of women held in detention in the absence of female guards and under male supervision, and of children detained alongside adults.

Original article:
http://bosco.foreignpolicy.com/posts/2011/11/28/the_judges_strike_back?utm_source=dlvr.it&utm_medium=twitter?page=full

by Kevin Jon Heller

The ICC has announced that the Assembly of States Parties has eliminated Andrew Cayley and Robert Petit from consideration as Moreno-Ocampo’s replacement:

The Assembly of States Parties of the International Criminal Court (“the Assembly”) will hold its tenth session at the United Nation Headquarters in New York from 12 to 21 December 2011.
The tenth session will be marked by elections, which will significantly change the composition of the Court. The Assembly will elect a new President of the Assembly of States Parties for the tenth to twelfth sessions (2011 – 2013). Ambassador Tiina Intelmann (Estonia), was recommended for the post by the Bureau in July. She will replace Ambassador Christian Wenaweser (Liechtenstein).

The Assembly will further elect the Prosecutor who shall hold office for a term of up to nine years and shall not be eligible for re-election. As mandated by the Rome Statute, every effort shall be made to elect the Prosecutor by consensus. The four shortlisted candidates recommended by the Prosecutor Search Committee are: Ms. Fatou Bensouda (Gambia), Mr. Andrew T. Cayley (United Kingdom), Mr. Mohamed Chande Othman (United Republic of Tanzania), and Mr. Robert Petit (Canada).

After informal consultations among States Parties, it was decided to narrow the list to two candidates: Ms. Fatou Bensouda (Gambia) and Mr. Mohamed Chande Othman (United Republic of Tanzania). At the 1 December informal consultations, to be held in New York, States Parties will see if there is consensus on one candidate.

I am surprised that Cayley was eliminated — I think he would have made an excellent Prosecutor.  But, of course, it was always unlikely that a non-Africa
n candidate would be elected, especially when the final list included two Africans who were very well qualified for the position.

That said, I still think Fatou Bensouda is the clear choice for the next Prosecutor.  She offers the best of both worlds: an ICC insider who offers institutional continuity, which will be critical in the coming years, but has a strong, independent voice that has not been tainted by Moreno-Ocampo’s incompetent tenure.  Having spoken to numerous individuals involved in the ICC, from OTP staff to legal officers in Chambers to defense attorneys, it is clear that Bensouda was the primary reason that the OTP didn’t fall completely apart over the past eight years.

I have also had the good fortune to spend time with Bensouda over the past couple of years.  She is, to put it mildly, an incredibly impressive woman: smart, articulate, thoughtful (a welcome change from Moreno-Ocampo), and compassionate.  And her pre-ICC credentials are stellar, including significant posts at both the international level and in her native The Gambia:

Senior Legal Adviser at the International Criminal Tribunal for Rwanda (ICTR); Legal Adviser and Trial Attorney at the ICTR; Attorney General and Minister of Justice of the Republic of The Gambia; Solicitor General and Legal Secretary of the Republic of The Gambia; and Deputy Director of Public Prosecutions of the Republic of the Gambia.

Othman also has excellent credentials — although his role as Prosecutor General of the United Nations Transitional Administration in East Timor (UNTAET) has to count against him somewhat; the Special Panels for Serious Crimes were a fisaco.  But there is only one clear choice for the next Prosecutor, and that is Fatou Bensouda.
Fingers crossed.  We should know in early December.

Original article here:
http://opiniojuris.org/2011/11/29/bensouda-vs-othman-for-icc-prosecutor-and-bensouda-should-win/

On November 21, a small number of journalists at the United Nations were chosen to take part in a conference call with U.S. Permanent Representative Ambassador Susan Rice from Malta, her first stop after her a one day visit to Libya. I was one of these journalists. It was clear to me that day that the one question on everybody’s mind, was whether Seif al-Islam Qaddafi would be handed over to the International Criminal Court to face charges of committing crimes against humanity or if he would be tried by a national court in Libya and possibly face the death penalty if convicted. The ICC does not impose the death penalty, even for the worst of crimes, be it war crimes, crimes against humanity or even genocide.

During the “on the record” telephone briefing, we learned from Dr. Rice that the ICC Prosecutor Luis Moreno Ocampo would be arriving to Libya on November 22 to discuss the way forward in regard to Seif al-Islam and possibly Abdullah al-Senoussi, about whom, Dr. Rice informed us, that the reports of his capture were apparently at the time premature.

We have since learned from informed Libyan sources that Ocampo met with the chairman of the National Transitional Council, Mustafa Abdul Jalil, Libya’s interim Prime Minister Abdel-Rahim al-Keeb and finally Mohamed al-Alaqi, who at the time held the NTC justice portfolio. Our sources informed us that Ocampo soon came to realize that the Libyans are determined to hold Seif al-Islam’s trial on Libyan soil.

Ocampo, accompanied by Deputy Prosecutor Fatou Bensouda and one or two of his senior advisors, then concentrated on explaining the ICC’s procedures to the Libyan representatives, which enable high level Libyan officials to implement their plans, to try Seif al-Islam inside Libya, while respecting their obligations under international law, thus showing the world that today’s Libya is a country that respects and abides by international laws and standards.

Of course the ICC is able to try Seif al-Islam in Libya, if they so decide, with the agreement of the Libyan authorities. Article 62 of the Rome Statute allows the court to decide on another venue for holding a trial. The article states that the venue of a trial shall be the seat of the Court, unless otherwise decided. I am sure that we all agree that the most important aspect to consider is that justice is served and seen to be served, regardless of the trial’s location, be it Tripoli or The Hague.

Needless to say that there are many international human rights organizations that argue against holding any trials inside Libya for Seif al-Islam or for that matter Senoussi and others, arguing that the accused will not have fair trials in Libya. Add to that the refusal of nearly all international human rights organizations to accept the imposition and implementation of the death penalty, regardless of the crime.

Nevertheless, the Rome Statute is based on the principle of the ICC being complementary to national criminal jurisdictions, something that is stated clearly in Article 1 of the Rome Statute, the treaty by which the ICC was established. This simply means that national courts have precedence over the ICC to conduct trials for a national or for an individual over whom they have jurisdiction, unless the State concerned is “unwilling” or “unable” to genuinely to carry out the investigation or prosecution (Article 17, paragraph (a) of the Rome statute).

The phrase “unwilling” means that the state would conduct the trial, only to shield the accused from justice, which is definitely not the case here. The phrase “unwilling” also includes any unreasonable delay, like for example in waiting for ever and ever to try the accused, which is also not the case here. Actually I expect the Libyans to get very active and conduct a first hearing of the charges by the end of the year. They might even conduct it by mid- December, knowing that the ICC judges will begin year-end judicial recess on December 16. Under “unwilling”, the Libyan national authorities must also demonstrate that they will not practice any unfair procedures that may infringe on the right of the accused and due process.

As for the phrase “unable”, it means that the national authority has no national judicial system or that the judicial system has totally or substantially collapsed. “Unable” can also mean that the judicial system is unable to obtain the accused or the necessary evidence.

Now that the ICC has issued, in June of this year, arrest warrants against Seif Al-Islam and Senoussi, the Libyan authorities will have to convince the Pre-Trial judges that the arrest warrants are inadmissible since the Libyan state is “willing” and “able” now to try the two accused. There is no reason to doubt that they are not willing and able, right from the outset. But this is a process and not a yes/no question. The Libyan government will have to agree to send a delegation to The Hague to demonstrate to the Pre-Trial Chamber headed by Judge Sanji Mmasenono Monageng of Botswana, that their judicial system will follow fair procedures and that their government will undertake to stay engaged with these judges, updating them on the process as necessary as the trial progresses. In short “the end of the process” is what matters and not “its beginning”, according to a well-placed ICC source.

The Libyan government will have to hold the trials on the same charges that Seif al-Islam was accused of by the ICC in June, namely committing crimes against humanity. Even though the Libyan penal code may not include crimes against humanity, it could be argued that prosecuting Seif al-Islam for the crimes of murder, torture and so forth could be a sufficient substitute for prosecuting crimes against humanity. It could be argued as well that the Libyans could prosecute Seif al-Islam for crimes against humanity under customary international law, even if crimes against humanity are not on the national books. The Libyans can also add other charges to the list of international charges against Seif al-Islam and try him for them.

There is little reason to think that the judges would not approve the Libyan request, but it is a decision for them and them alone. In 2010 the Kenyan government tried the same tactic of the “admissibility challenge”, but was defeated when the Pre-Trial Judges refused their request, considering it far from being a serious request, and insisted on the ICC trying the accused. However in the case of this potential challenge from the Libyan government, once presented, it is hard to envisage that the Pre-Trial Judges would reject it. Indeed it could be the first successful challenge to ICC jurisdiction based on “admissibility”.

During his visit to Libya, ICC Prosecutor Ocampo did say that Seif al-Islam could potentially be tried in Libya. “They want to show the world that this is a serious country with smart people and they can do a good job. It’s an issue of national pride. I think you should not distrust them so easily,” he added.

Indeed it is a matter of national pride, but add to that the Libyan new government wants to be seen by the international community as a fair and capable government, worthy of conducting fair and just trials for Seif al-Islam, Sanoussi and others, especially given that there are others for whom Tripoli has already issued arrest warrants and who are sheltering, for the time being, in neighboring countries, such as Saadi Qaddafi who was granted asylum in Niger.

The Libyans wish neither to be seen as a vengeful government nor as a government that outsources one of the biggest challenges to the Libyan justice system to an outside supplier, albeit one as independent and impartial as the International Criminal Court. How they maintain this balance and whether they are up to this challenge, remains to be seen.

(The writer is New York and United Nations Bureau Chief of Al Arabiya. He can be reached at talal.alhaj@mbc.net). Read original article here.

From Wronging Rights

There is SO MUCH international criminal law news right now, you guys. Case 002 opened at the Khmer Rouge Tribunal (more on that later), Bangladesh began a trial for atrocities committed during its independence fight, and George W. Bush and Tony Blair were found guilty of war crimes by a “Let’s Play Make Believe” tribunal in Malaysia.

But the biggest story is that Saif al-Islam Gaddafi and Abdullah al-Senussi, both the subject of ICC warrants on crimes against humanity charges, were captured in Libya this weekend. The Libyan authorities have expressed a very strong desire to try Saif themselves and a reluctance to hand him over to the ICC, so ICC Chief Prosecutor Luis Moreno-Ocampo headed down to Libya yesterday to talk things out.

As far as I can tell, it was at that point that every news media outlet in the world began misreporting the story. So, uh, note to Al Jazeera, The Guardian, MSNBC, Voice of America, and the rest of y’all: Moreno-Ocampo most certainly did not agree that the Libyans will try Saif. You know how I know this, despite my lack of a foreign correspondent on the ground in Tripoli? It’s because the Chief Prosecutor does not have the power to make that decision.

The new Libyan government is well within its rights to challenge the ICC’s jurisdiction if it wants to prosecute the crimes against humanity charges itself. And there’s a good chance they’d prevail on the challenge, given that the ICC’s jurisdiction is complementary, not universal. (This means that the court can only try cases where the relevant domestic judicial system is either “unwilling” or “unable” to prosecute.) However, the assessment of whether Libya is “able” to prosecute rests with the Pre-Trial Chamber of the ICC, not with the state itself, or with the Chief Prosecutor.

This particularly legal issue hasn’t been explored before* so the Libyan case will be an exciting (maybe just for me) opportunity to establish exactly how the ICC will handle inquiries into the ability of states to try mass atrocity cases. Specifically: Will the Pre-Trial Chamber defer to state preferences and call off ICC proceedings when states show a genuine desire to conduct trials themselves, or will it conduct an extensive analysis of judicial capacity?

I suspect the bizarre reports we’re getting that the ICC has “ruled” that the Libyans can try Saif stem from the fact that the Prosecutor has opted for the former course,** and will support Libya’s efforts to try the case. We’ll see whether the judges do likewise…

**Possibly in recognition of the fact that if Libya flat out refuses to hand Saif over, there’s not much the ICC can do…

For the first time, crimes against humanity that might have been perpetrated under the military government that ruled the country between 1973 and 1985 may be investigated. Law No. 18.831, allowing the judiciary to independently investigate these crimes, was adopted by the Uruguayan Parliament on 27 October.

Although there have already been some judicial investigations in Uruguay, the so-called 1986 “Expiry Law” prohibited the judiciary from administering justice in an autonomous manner. The peculiarity of the Uruguayan experience is that the Expiry Law has been submitted twice to a referendum. In 1989, the Uruguayans voted for the Law to remain into force. But in 2009 it didn’t get the majority of votes necessary to push for a reform to repeal it.

During the military dictatorship, human rights organisations estimate that approximately 213 people disappeared; around 6,000 were jailed as long-term political prisoners. The most common practices were tortures and the abduction of the children of political dissidents, who were later given to other families.

Uruguay, like Argentina, Brazil, Bolivia and Paraguay, was part of Plan Condor, which supported right-wing military governments in order to fight the influence of communism in South America in the ‘70’s. This regional strategy facilitated cross-border assassinations,  tortures and enforced disappearances.

The 1986 Uruguayan Expiry Law

After the return to democracy, the civil government led by President Sanguinetti, adopted in 1986 Law No. 15.848 (Ley de Caducidad de la Pretensión Punitiva del Estado), also known as the Expiry Law, granting amnesty to those responsible for human rights violations during military rule.

This Law declared the expiry of the State’s power to prosecute crimes committed before 1 March 1985 by military personnel or police forces during the de facto regime. The approval of this Act was also consistent with the policies and laws adopted by other countries in the region at the time which decided to approve Amnesty Laws fearing chaos or further threats to democracy after years of military dictatorships.

The difference against other Amnesty Acts adopted in the region is that under the Expiry Law, some cases could be opened if the President decided that investigations into cases of alleged abuses could be allowed to proceed.

But after the restoration of democracy, many cases were blocked, without the right to appeal. This power granted to the Executive is in direct contravention to the Uruguayan Constitution and International Human Rights Law, which embodies the separation of powers. Despite the peculiarities of the Expiry Law, de facto President Bordaberry (1973-1976), and President Alvarez (1981-1985) have been prosecuted and convicted for crimes that were not covered by the amnesty.

President Mujica, a former Tupamaro leader who was tortured and served in prison for a long term during the military regime, had previously argued publicly against scrapping the amnesty, pointing to the referendum results. Nevertheless, before the vote in Parliament, amnesty supporters and members of the Armed Forces claimed they would seek prosecution of former guerrillas, especially Tupamaros.

Revoking the Expiry Act

Uruguay’s Expiry Act violated not only the Constitution, but international human rights principles and treaties, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the American Convention of Human Rights, and the Inter-American Convention to Prevent and Punish Torture. It also violates rulings by the Inter-American Court of Human Rights which are binding and final. Even the Uruguayan Supreme Court ruled on several occasions on the unconstitional character of the Act.
In 2006, President Tabaré Vázquez allowed an investigation into the crimes perpetrated under the military regime. Earlier this year, President Mujica, using the powers granted under the Expiry Act, decided to reopen 88 cases of human rights abuses.

Turning point

However, the decisive turning point came in February, when the Inter-American Court of Human Rights in the Gelman Case, determined that the 1986 Expiry Law had no legal effectvis-à-vis the American Convention on Human Rights, ordering Uruguayan authorities to strike down any internal measures that could represent an obstacle to investigate and prosecute those responsible for crimes against humanity, especially enforced disappearances.

The adoption of Law No. 18.831 represents a major change in the national prosecution of crimes against humanity in Uruguay. For the first time, the judiciary is in charge of leading these proceedings, leaving all political considerations aside. Due to the fact that only those cases considered as crimes against humanity can be reopened, no statutory limitations or other measures that may halt proceedings are applicable.

Families of the victims are celebrating the adoption of this law as one step closer to knowing the truth about their loved ones. This new development in Uruguay shows that despite the challenges and limitations - the constitutional standing of human rights treaties, the rulings of the Inter-American Court and its interpretation by national courts - can bring about positive change and consolidate the rule of law.

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Mariana Rodriguez Pareja is a Communications Expert and Human Rights Advocat- based in Buenos Aires. Twitter: @maritaerrepe

Salvador Herencia Carrasco. LL.M. University of Ottawa, Legal adviser of the Andean Commission of Jurists, based in Lima.

Originally published by Radio Netherlands. View the original post here.

by Julian Ku

Reports are a little uncertain, but it sounds like Libya will not comply with the ICC Prosecutors’ arrest warrant and turn over Muammar Qaddafi’s son Seif al-Islam el-Qaddafi.

ZINTAN, Libya (AP) – Libya’s new leaders said Sunday they will try Moammar Gadhafi‘s son at home and not hand him over to the International Criminal Court where he’s charged with crimes against humanity. The government also announced the capture of the toppled regime’s intelligence minister, who is also wanted by the court.

As I suggested in an earlier post, Libya does have an obligation under UNSC Res. 1970 to cooperate with the ICC Prosecutor, and this obligation probably includes the obligation to turn over alleged war criminals.  To be sure, Libya might be able to avoid the obligation to surrender Seif Qaddafi if it tries Seif Qaddafi itself, which it says it is planning to do. But there is a good argument that it has to turn him over first, and then file a challenge to the admissibility of the case on the grounds that it is now willing and able to try Seif Qaddafi himself. This is a procedural point, but an important one. And since Libya apparently has no real court system, there is little chance of them getting him back once they turn him over. So it is not surprising they will hold on to their prisoner, and start the bargaining process with the ICC and the UNSC.

Original article here.