IJCentral: International Justice Central

Nairobi, Kenya

After more than a year of investigations, the chief prosecutor of the world’s sole war-crimes tribunal has accused six prominent Kenyans of orchestrating the post-election violence that killed 1,200 people three years ago.

Luis Moreno-Ocampo said on Wednesday that he has evidence that all were involved in the perpetration of crimes against humanity, including murder and ethnic cleansing. He has brought two separate cases, with three defendants each.

If judges at the International Criminal Court (ICC) agree, the six men will be summoned to appear at The Hague, Netherlands – and issued arrest warrants if they fail to comply.

If the two cases come to trial, it will mark a first for Kenya. There has never yet been a single successful prosecution for senior Kenyan figures implicated in a series of alleged gross crimes of violence or corruption.

“Kenya is turning a page in its history, moving away from impunity and divisionism toward an era of accountability and equal opportunity,” said President Obama in a statement Wednesday.

“I believe that the Kenyan people have the courage and resolve to reject those who would drag the country back into the past and rob Kenyans of the singular opportunity that is before them to realize the country’s vast potential.”

Florence Wambugu, a woman selling grilled maize on a street corner in an upmarket Nairobi suburb, agreed with Mr Obama.

“This is something we know we cannot do ourselves, even if so many of want these people to go to court,” she said.

“In Kenya, they would buy their way to freedom. There, in Europe, we hear that you cannot do that. They must face their music, and others wanting to copy their evil deeds will be made to think twice.”

The six accused

Mr. Moreno-Ocampo, the ICC’s chief prosecutor, has drawn up two cases, with three accused in each.

The first involves William Ruto, the suspended higher education minister, Henry Kosgey, the industrialization minister, and Joshua Sang, a presenter on a local-language radio station.

All are accused of involvement in crimes against humanity including murder, ethnic cleansing, targeting supporters of rival political parties, and torture.

The second case involves Uhuru Kenyatta, the deputy prime minister and son of Kenya’s founding father; Francis Muthaura, head of the civil service and a close ally of President Mwai Kibaki; and Maj. Gen. Hussein Ali, the former chief of police.

That trio is linked to crimes against humanity, murder, ethnic cleansing, inhumane acts, and sexual violence. Most of the men swiftly denied any wrongdoing Wednesday.

“These were not just crimes against innocent Kenyans,” said Moreno-Ocampo, who is pursuing separate cases against Sudan’s president, Congolese warlords and Ugandan militia leaders.

“They were crimes against humanity as a whole. By breaking the cycle of impunity for massive crimes, victims and their families can have justice.”

Kenyan president stands by those accused – so far

The ICC judges are expected to spend the next few weeks going through the 158 pages of evidence presented Wednesday by Moreno-Ocampo.

If they agree with him, the six men will be summoned to appear before the court, and arrest warrants will be issued if they fail to comply.

In what Mwalimu Mati, director of anti-graft watchdog Mars Kenya, called a “distressing sign,” President Kibaki has already stated that he will not ask those members of his government named in the list to step aside until charged.

“The people who have been mentioned have not yet been fully investigated as the pre-trial process in The Hague has only but began,” Mr. Kibaki said in a statement.

“They therefore cannot be judged as guilty until the charges are confirmed by the court. Calls for action to be taken against them are therefore prejudicial, preemptive and against the rules of natural justice.”

For Mr. Mati, this is not enough.

“These are people who will wake up tomorrow and go to work for the government, despite being accused of rape, murder and ethnic cleansing,” he said.

“Of course, they are innocent until proved guilty. But it does seem that the president is sending totally the wrong message by starting this whole thing by appearing to stand by them.”

But other Kenyans believe Ocampo has gone too far.

“Ocampo has thrown everybody off balance and this decision to charge these politicians does not reflect the mood of the people,” says Nairobi lawyer Ken Ogeto.

Some have worried about another outbreak of violence in the Rift Valley, home to three of the six accused – Mr. Ruto, Mr. Kosgey, and Mr. Sang.

But in the Rift Valley town of Eldoret, scene of much of the post-election violence in early 2008, Ken Wafula says that the area remains calm, and adds, “I have not, as a non-Kalenjin, received any threats as it was during the post-election violence.”

source: The Christian Science Monitor

LAMU, Kenya — The prosecutor of the International Criminal Court is seeking to indict several high-ranking Kenyan politicians, including the finance minister and a former national police chief, for crimes against humanity in what he calls an orchestrated campaign to displace, torture, persecute and kill civilians during Kenya’s election crisis in 2007 and early 2008.

These are the first serious charges sought against Kenya’s political elite for the violence, and are intended to address one of Africa’s glaring weak spots — disputed elections — which have led to turmoil in Zimbabwe, Ethiopia, Nigeria and, most recently, Ivory Coast.

“This is a different kind of case,” Luis Moreno-Ocampo, the court’s chief prosecutor, said of the accusations, which are scheduled to be announced Wednesday. “This isn’t about militias. It’s about politicians and political parties. It’s about investigating leadership.”

And, Mr. Moreno-Ocampo added, “this isn’t just about justice. For Kenya, this is survival.”

Among the top six politicians named are Uhuru Kenyatta, finance minister and son of Kenya’s founding leader, Jomo Kenyatta; Mohammed Hussein Ali, the former police chief, who stands accused of unleashing police officers to shoot unarmed demonstrators; and William Ruto, arguably Kenya’s most divisive political figure, widely accused of instigating violence but revered as a hero within his ethnic community, the Kalenjin. Some of the worst episodes of violence, including the burning of a church with dozens of women and children inside, occurred in predominantly Kalenjin areas.

The case follows an international effort to help pull Kenya back from the brink of chaos after the disputed election in December 2007 set off widespread protests and ethnically fueled fighting, which swept the country and killed more than 1,000 people.

“Finally, we have our day,” said Maina Kiai, a former Kenyan human rights official. “This is the first time we have high-ranking people facing the law where they have no control and they can’t bribe their way out of it.”

Mr. Kiai and many others say Kenya has had a dangerous habit of whitewashing sensitive investigations, often setting up high-level commissions but never punishing the culprits. This record of impunity has led to mass killings around previous elections as well, and many Kenyans fear that the next election, in 2012, could be worse if the ringleaders of 2007 go free. Others worry that prosecutions will inflame tensions instead.

The case brings the court into some uncharted territory. All of its previous cases have focused on militias and war zones, and this is the first time that Mr. Moreno-Ocampo has stepped in on his own initiative, without a request from the home country or by the United Nations Security Council.

Mr. Moreno-Ocampo has been criticized for solely prosecuting Africans and for being overzealous, particularly in his dogged pursuit of genocide charges against President Omar Hassan al-Bashir of Sudan. The effort to arrest Mr. Bashir has proved very difficult and alienated some African countries.

This time, Mr. Moreno-Ocampo plans to ask the judges at The Hague to issue a summons, not an arrest warrant. That would allow the accused to turn themselves in and spare Kenya, at least initially, the awkwardness of having to hand over its political elite. Mr. Moreno-Ocampo has also implicated leaders from both sides, the government and the opposition, a decision many Kenyan observers say could be crucial in influencing what happens next — peace or more bloodshed.

“If the I.C.C. is seen as having done a balanced job,” said John Githongo, a former anticorruption official who was forced into exile and recently returned to Kenya, “then it will be more difficult for the elite to mobilize people violently against it.”

But, Mr. Githongo added, “Kenya is now a volatile country. The politics are bubbling. A lot of change is happening at the same time. Anything is possible.”

In recent days, Kenyan police commanders have put their forces on high alert in anticipation of Mr. Moreno-Ocampo’s announcement. But officers were given explicit orders to use restraint, especially with live bullets. Many Kenyans expect Mr. Ruto’s supporters in the turbulent Rift Valley to be the most upset.

The case is expected to face legal hurdles as well. The prosecutor is seeking to charge all six men with crimes against humanity. But several international-law experts and a judge at the court have questioned whether the violence of 2007, while serious, fits that definition.

“The question is not whether the crimes have happened,” wrote Judge Hans-Peter Kaul, one of three judges who reviewed the prosecutor’s investigation. “The issue is whether the I.C.C. is the right forum before which to investigate and prosecute these crimes.”

It was not, Judge Kaul concluded. The two other judges disagreed, allowing the investigation to proceed. But experts said the question of the court’s jurisdiction would linger.

After the disputed election, Kenya’s leaders vowed to pass a new constitution; set up a local tribunal to prosecute the election killings; and undertake land reform, police reform and a number of other ambitious reforms whose urgency was exposed by the election turmoil.

Kenya’s political class accomplished some of these tasks, including the peaceful passage of a new constitution in August that devolves power and establishes a bill of rights. But efforts to set up a local tribunal were typically blocked by the very politicians who were implicated. Now some Kenyan politicians, including several of those named in the charges, are trying to resuscitate the idea.

According to Mr. Moreno-Ocampo, the evidence predates the disputed election in December 2007, in which Kenya’s incumbent president, Mwai Kibaki, was declared the winner, despite mounting evidence that the real winner was Raila Odinga, an opposition politician who is now prime minister.

Mr. Moreno-Ocampo says Mr. Ruto (who used to be a minister but was suspended recently because of corruption accusations); Henry Kosgey, the minister of industrialization; and Joshua arap Sang, a radio broadcaster — all well-known opposition figures — began planning a year before the election to attack supporters of the governing party. After Mr. Kibaki was declared the winner, prosecutors say, the network they cultivated burned homes, killed civilians who had supported Mr. Kibaki and systematically drove people off their land.

In response, prosecutors say, Mr. Kenyatta, Mr. Ali and Francis Muthaura, the head of the civil service, “developed and executed a plan” for “suppressing and crushing” opposition protests and keeping the governing party in power.

The police were sent to opposition strongholds “where they used excessive force against civilian protesters,” and Mr. Kenyatta and Mr. Muthaura deputized one of Kenya’s most brutal street gangs, the Mungiki, to “organize retaliatory attacks against civilian” opposition supporters, the prosecutor contends.

But many observers say evidence from the earliest days of the crisis implied that some of the killings were spontaneous expressions of rage, not centrally organized, and that the organized violence was planned at local levels, by chiefs and elders, not necessarily by top politicians.

The suspects have denied any wrongdoing. Mr. Ruto has called the evidence “cooked up.” He has said that witnesses have been bribed and that the case “will in the end amount to fraud.”

Mr. Kenyatta said in October that he was “not concerned personally by the I.C.C. warrants” and that “once due process has taken place, the truth eventually will come through.”

Neither of the two political protagonists whose rivalry set off the violence, the president and the prime minister, are implicated in the case. Many experts believe this is one reason that Kenya will ultimately cooperate.

“The Kenyan government is not Zimbabwe,” said Mr. Kiai, the former human rights official, referring to Zimbabwe’s antagonistic relations with the United Nations and the West. “International acceptance is important to Kenya.”

Jeffrey Gettleman reported from Lamu, and Marlise Simons from Paris.

source: The New York Times

As the International Criminal Court investigation into the 2008 post-election violence continues, Kenyan law increasingly is being used by opposition to block the court’s work.

Despite receiving the support of the Kenyan President and Prime Minister, ICC Prosecutor Luis Moreno-Ocampo has faced a series of high-level hurdles over the past month in his efforts to bring the organizers of the 2008 poll chaos to The Hague.

The latest in this series of frustrations is his request for documents detailing top-level security meetings during the violence.  According to the Daily Nation newspaper, the government is considering withholding the minutes of Security Council meeting held before and during the crisis.

Moreno-Ocampo began his investigation into the poll chaos after nearly two years of inaction in Kenya.  The secretary of the Law Society of Kenya, Apollo Mboya, said the obstacles facing the prosecutors only validate the need for an international mechanism for justice.  Mboya said the opposition facing Moreno-Ocampo is not surprising.

“This is what we expected.  The behavior is predictable.  We expected it to go that way. But we think that the evidence that is there, even without the other crucial evidence that is required by the International Criminal Court is enough to bring people to account for the crimes they did,” said Mboya.

Mboya said the government was first required to prove to the ICC that the minutes requested by the prosecutor would harm national security if released.  In that event, Mboya said agreements could be reached to keep the documents secret while still making them available for the investigation.

The prosecutor’s team has met with similar resistance from Kenya’s police.  Trying to establish a police response to the election chaos, Moreno-Ocampo’s team has requested statements from Provincial Police Commissioners and Officers.  Kenya’s Attorney General issued a directive for those summoned to comply with the ICC request.  But the officers and commissioners have refused, arguing the request violates Kenyan law.

It is believed the summoned police are trying to avoid becoming scapegoats for the violence, and Mboya said the refusal indicates opposition to the investigation within higher levels of the government.

“I think it is a question of them feeling that they are more of a sacrificial lamb,” said Mboya.  “That is why they are doing that.  Provincial administration is answerable to the office of the president.  So even as the attorney general gives the clearance, the main people who must actually give that authority for them to talk is the office of the president.  The attorney general giving the clearance is just a whitewash that ‘I have done this’ but we know that these people - they do not report to the attorney general.  They report to the office of the president through the ministry of internal security.”

Moreno-Ocampo is investigating alleged crimes against humanity that took place in the wake of Kenya’s December 2007 presidential elections. Then-rivals President Mwai Kibaki and Prime Minister Raila Odinga accused one another of vote rigging, which set off ethnic violence countrywide.  More than 1,000 people were killed and 300,000 displaced in the two months that followed.

Moreno-Ocampo says his investigation is focused on those who plotted and executed the violence.  The prosecutor plans to bring two cases against three suspects each when he presents his evidence to The Hague in December.

source: Voice of America

It is time for the UN to investigate the consistent reports of mass human rights violations in Burma to enable the identification of those responsible. The failure to take this step is unjustifiable. For decades NGOs and UN actors have documented reports of extrajudicial killings, sexual violence, torture, mass internal displacement, sexual violence, the use of child soldiers and forced labour, and the list goes on. The scale and gravity of the violations reported strongly suggests that they amount to war crimes or crimes against humanity.

Yet, although it is undeniable that mass violations have been, and continue to be, perpetrated primarily by the Burmese military junta but also by armed ethnic groups, those who commit these alleged international crimes do so with absolute impunity. This impunity will not end without a UN initiated investigation specifically aimed at obtaining evidence in order both to clarify the true extent of the atrocities, but also to obtain evidence linking an individual to a specific crime in order to establish accountability. Once such evidence has been obtained, it will be a question of whether the UN and the international community will have the necessary political will to bring the perpetrators to justice.

There is strong evidence of mass human rights atrocities in Burma. In May 2009 the International Human Rights Clinic at Harvard Law released the report, Crimes in Burma, which highlighted the fact that for fifteen years, numerous UN actors, such as the Special Rapporteur for Burma, the General Assembly and Commission on Human Rights had raised considerable concern over the perpetration of grave human rights violations in the country. A former Special Rapporteur for Burma reported that he had received information indicating the military regime had destroyed, forcibly displaced, or forced the abandonment of over 3,000 villages in eastern Burma where ethnic minorities predominate. Further, that at least one million people fled their homes because of the attacks, escaping as refugees and internally displaced persons.

Reports of mass human rights atrocities have continued since the release of the Crimes in Burma report. Just one of the many examples available is provided by the Special Rapporteur’s comments on the situation in the Shan state in his report of March 2010:

“The Special Rapporteur is alarmed by the dire human rights situation in Shan State. Since 27 July 2009, it is reported that the military have burned down over 500 houses and scores of granaries, and forcibly relocated almost 40 villages, mostly in the Laikha township. According to reports, over 100 villagers, both men and women, have been arrested and tortured. At least three villagers have been killed. This would be the largest forced relocation since 1996–1998, when over 300,000 villagers in southern and central Shan State were displaced.”

UN actors have also highlighted the pervasive culture of impunity that perpetrators enjoy, observing a general failure to investigate allegations of abuse, the threat of reprisals for those who report abuses, the failure to prosecute those responsible, and the lack of an independent judiciary.

However, NGOs and UN actors face tremendous difficulties in obtaining the evidence from victims and others in Burma, which would establish the full extent of the atrocities committed and allow for the identification of, and obtain evidence against, individual perpetrators. For example, the Special Rapporteur’s last visit to Burma on 15 January 2010 was limited to a mere five days, and he was provided with his programme on a daily basis by the government. Such a limited and controlled investigation cannot hope to establish the true extent of the situation. Further, it is unable to provide the detailed evidence directly linking a perpetrator to an alleged crime, which is required to establish individual responsibility.

This reality has been recognised by two former Special Rapporteurs for Burma, who have come out in support of the call for a Commission of Inquiry into the issue of international crimes in Burma, as well as the current rapporteur, Tomas Ojea Quintana. He stated in March this year that:

“Given the gross and systematic nature of human rights violations in Myanmar [Burma] over a period of many years, and the lack of accountability, there is an indication that those human rights violations are the result of a State policy that involves authorities in the executive, military and judiciary at all levels. According to consistent reports, the possibility exists that some of these human rights violations may entail categories of crimes against humanity or war crimes under the terms of the Rome Statute of the International Criminal Court.

The mere existence of this possibility obliges the Burmese government to take prompt and effective measures to investigate these facts. There have clearly been cases where it has been necessary to establish responsibility, but this has not been done. Given this lack of accountability, UN institutions may consider the possibility to establish a Commission of Inquiry with a specific fact-finding mandate to address the question of international crimes.”

Thus, on the issue of whether the reported mass violations amount to international crimes, the Special Rapporteur’s statement that the evidence he has received of the incidents of sexual violence, extrajudicial killings and torture suggests that they are widespread, systematic and part of a deliberate strategy to terrorise and subjugate civilians, clearly supports such a conclusion.

Although such statements may in of themselves be insufficient to bring individuals to trial, it should be recognised how strong the supporting evidence for war crimes and crimes against humanity actually is in the Burma context. In addition to the assessments by the various reliable UN bodies referred to in the ‘Burma Report’ much information has been provided by various NGOs, not all of whom are dependent upon second hand sources for what they report (however cautious they may have to be about explaining how they obtain first-hand ‘in-country’ intelligence and providing anonymity to the victims and witnesses spoken to).

There has been no effective counter from the regime to the allegations made and no effective and independent inquiry of any kind has been published that suggests the allegations reported by the UN and other bodies are wrong. It is, of course, a reality that those applying the (international) rule of law and who therefore proceed on the basis of evidence are at a disadvantage in comparison to those who resist the provision of information about crimes, supported as they may be in this approach by the political interests of patron states.

We have little, if any, doubt about the strength of the underlying evidence and thus of the fact that very serious crimes have been and are being committed in Burma.  This is the reason we – and many others – are pressing for political action that will render impossible the continued blocking of truth by political action or inaction.

It is therefore imperative that a Commission of Inquiry is established by the UN. Such a Commission could be established directly by the UN Secretary General, which was the route adopted in the case of the Bosnian war crimes commission in the early 1990s. It could also be established by the Security Council, though this procedure is obviously susceptible to a veto by permanent members such as China.

The necessity of such a step has been recognised by some members of the international community. These include the USA, Canada, Australia, Slovakia and the Czech Republic. It is to be hoped that other nations, in particular those on the Security Council, will adopt the same stance.

In the event that a Commission of Inquiry was established there is every reason to believe that it would obtain evidence of mass international crimes. Moreover, a properly functioning commission should be able to gather evidence establishing the accountability of both the perpetrators in the field and those exercising command and control over the strategy of terror.

The inevitable question that would arise once the Commission identified the perpetrators at all levels of command and obtained sufficient evidence against them would be: will the international community bring the perpetrators to justice? It is impossible to answer this question conclusively. Whether the perpetrators of the mass human rights atrocities would be brought to trial is entirely dependent upon the will of the international community.

At this time, there is no indication that the Burmese government will take any genuine and effective steps to end the prevailing culture of impunity in Burma. Further, Burma is not a State Party to the International Criminal Court, and so for alleged perpetrators to be tried by this institution the Security Council would have to refer the situation to the Court. It must not be under-estimated how difficult this would be to achieve. Again, such a procedure is susceptible to a veto by a permanent member of the Security Council – the most obvious concern of course being China. It must be hoped that the political will demonstrated by a future establishment of a Commission of Inquiry would carry through to prosecution of those it identified.

It seems clear, therefore, that if a UN Commission of Inquiry was initiated it would not be a lack of evidence that would prevent trials of alleged perpetrators of mass human rights atrocities in Burma; rather a lack of the necessary international political will by the UN and its member states.

Sir Geoffrey Nice QC is co-Commissioner of the Harvard International Human Rights Law Clinic Report Crimes in Burma. Sir Geoffrey worked in the Office of the Prosecutor at the International Criminal Tribunal for the former Yugoslavia, and was the lead trial attorney in the prosecution of Slobodan Milošević.

Julianne Kerr Stevenson is co-author of the Harvard International Human Rights Law Clinic Report Crimes in Burma and Member of the Bar.

They write on behalf of the Burma Justice Committee.

source: Democratic Voice of Burma

The International Criminal Court’s judges on Monday charged Sudanese President Omar Hassan al-Bashir with orchestrating a bloody campaign of genocide against Darfur’s three main ethnic groups, the first time the Hague-based court has accused a sitting head of state of committing the most egregious international crime.

The three-judge pretrial chamber issued a formal arrest warrant for Bashir—the second time it has done so—on three counts of genocide. They include the crime of targeted mass killing, the causing of serious bodily or mental harm to members of a target group, and deliberately inflicting conditions of life calculated to bring about the group’s physical destruction. “There are reasonable grounds to believe that Mr. al-Bashir acted with specific intent to destroy in part the Fur, Masalit and Zaghawa ethnic groups,” the judges concluded.

The decision provided a degree of vindication to the United States, which has stood largely alone in characterizing the killing in Darfur as genocide. It also gave a boost to the court’s Argentine prosecutor, Luis Moreno-Ocampo, whose pursuit of the Sudanese leader has generated intense opposition from other African and Arab leaders. Moreno-Ocampo suffered a setback this month when his case against another alleged war criminal, the Congolese warlord Thomas Lubanga, was suspended for a second time.

Sudan’s U.N. ambassador, Abdalmahmood Abdalhaleem Mohamad, dismissed Monday’s ruling as a politically motivated effort to undercut prospects for peace in Sudan and vowed never to surrender Bashir. “We condemn this in this strongest terms; it will only harden our resolve,” he said in an interview. “This court’s objective is to destroy chances for peace in Sudan; we’re not going to be bothered by it.”

Moreno-Ocampo said he welcomed the decision, which essentially reverses a previous ruling by the pretrial chamber to reject the genocide charges. He said the new ruling honors the victims of the mass killing in Darfur, a vast region in western Sudan. It may impose new obligations on states that have signed the Genocide Convention, including the United States, to cooperate with the court in its effort to arrest Bashir, Moreno-Ocampo added.

The court issued a previous arrest warrant against Bashir in March 2009, on seven counts of war crimes and crimes against humanity. Sudan, which has never ratified the treaty establishing the criminal court, has refused to surrender Bashir, who was reelected this year in a U.N.-backed election to a five-year term.

The violence in Darfur began in early 2003 when two rebel groups took up arms against Sudan’s Islamic government, citing a legacy of bias against Darfur’s ethnic tribes. In response, Khartoum organized local Arab militias, the Janjaweed, to help crush the resistance and its followers. The United Nations estimates that as many as 300,000 civilians died as a result of violence or hardships brought on by the forced displacement of nearly 2 million Darfurians.

source: The Washington Post

June 12 (Reuters) - Member states at a Kampala review conference of the International Criminal Court have agreed on how the court could investigate crimes of state aggression, such as an invasion or an attack on another nation.

Below are questions and answers on the move and what it means for the ICC, the world’s first permanent war crimes court.

HOW IS SUCH A CRIME DEFINED?

The crime of aggression was included in the 1998 Rome Statute which set up the court, listing aggression crimes along with genocide, crimes against humanity and war crimes as one of the four grave crimes the ICC has jurisdiction over.

It is broadly defined as the use of force that manifestly breaches the United Nations charter and includes an invasion, a bombardment, port blockade or a country allowing a state to use its territory to attack a third nation.

WHAT WAS DECIDED?

Delegates decided that the Security Council, the ICC and states should all have a role in deciding whether an investigation into an act of aggression should take place.

But the compromise deal gives the court at least seven years before it would gain the authority to prosecute the crime of waging an aggressive war and it depends on further agreement between ICC member states before taking effect.

That agreement cannot take place before January 1, 2017.

WHAT ARE THE DRAWBACKS?

Allowing the ICC to prosecute state aggression risks involving the court in political disputes between states because a decision to go to war can be an inherently political decision.

Observers also say allowing ICC jurisdiction over aggression could arm critics who say the court is a political jurisdiction.

The United States, which is not a member of the court, is also wary its troops could be prosecuted for the use of force in trying to end war crimes the ICC is mandated to prosecute.

It has argued that there are uncertainties and ambiguities in the definition of the crime of aggression and that judges would find it difficult to reach a ruling.

Japan warned that the deal amending the Rome Statute that set up the court is based on a “dubious legal foundation” and raised concerns non-member states are shielded from being investigated.

Some critics say the court is too young to take on the political risks as it is still trying to fully establish itself.

WHAT ARE THE BENEFITS?

The deal gives a limited extension to the court’s reach by allowing it to prosecute the crime of waging an aggressive war.

Proponents said the deal avoided giving control to the U.N. Security Council over the court’s authority in respect to aggression crimes after earlier warning that giving the council control over such probes could reduce the court’s independence.

The deal also gives the court at least seven years to strengthen itself and prepare for its new powers.

Observers say the crime of aggression is based on well-established international law and if the ICC had the power to prosecute aggression this could serve as a strong deterrent.

Enabling the ICC to investigate aggression could benefit both powerful and weaker states by affording better protection against one state from being invaded while protecting a powerful state from being turned into an aggressor by criminal leaders.

While the court has the powers to prosecute war crimes, crimes against humanity and genocide, some observers say the court is incomplete if it does not have the jurisdiction to proseute state aggression, which often leads to war crimes.

HOW WOULD INVESTIGATIONS BE TRIGGERED?

The agreement stipulates that the U.N. Security Council would have first say in whether an investigation into an act of aggression should take place.

Other options at the Kampala conference for triggering an investigation had initially included a vote of the U.N. General Assembly, a ruling at the International Court of Justice in The Hague or a ruling handed down by ICC judges.

Eventually, delegates decided that either the Security Council, the ICC or state referral would have the power to trigger a probe.

WHAT NOW?

Member states will need to decide after January 1, 2017 on the entering into force of the court’s new jurisdiction.

But state parties can also “opt-out” of allowing the ICC to have jurisdiction by lodging a declaration with the court. States that opt-out must reconsider the declaration.

Source: Reuters
(Reporting by Aaron Gray-Block; editing by Philippa Fletcher)

Crusading judge who challenged Pinochet could be barred for 20 years after far right bring charges against him

To his supporters abroad, Baltasar Garzón is a hero, a legal crusader who has dared to investigate the abuses of right-wing Latin American dictatorships, starting with the 1998 arrest of Chile’s Augusto Pinochet.

To many in Spain, the 54-year-old high court judge, forever flanked by bodyguards, is his country’s gutsiest watchdog, the nemesis of drug lords, corrupt politicians and violent Basque separatists. But after two decades of crusading, Mr Garzón has also attracted criticism for what some see as his cavalier, headline-grabbing indictments, including one against Osama bin Laden. And now his detractors are having their day.

Mr Garzón was charged yesterday with abusing his powers by launching Spain’s first-ever investigation into Franco-era abuses – namely the forced disappearance of 114,000 victims on the losing Republican side of the war. In a 14-page ruling, Spanish Supreme Court investigating magistrate Luciano Varela charged Mr Garzón with recklessly violating a 1977 amnesty law that shielded members of the Franco regime from legal persecution.

“This is a sad day for justice,” said Emilio Silva, president of the Association for the Recovery of Historic Memory, which has led a volunteer drive to exhume the mass graves of Republican victims. In an interview on national radio, Mr Silva blamed the decision to prosecute Mr Garzón on the ultra-conservative leanings of the Spanish Supreme Court, which, he said, had failed to evolve since Franco’s time.

Mr Garzón is expected to face trial next month. If he is found guilty, he could be barred from the bench for up to 20 years. “I will continue to defend my absolute innocence,” he said last month when an appeal was rejected.

The lawsuit is one of three now pending against the judge, one of which takes aim at his corruption inquiry into the opposition Popular Party. It was brought before the Supreme Court by three extreme-right groups, including the Falange de las Jons, a modern splinter group of the Franco-era fascist party of the same name.

“It’s like the end of a farce,” said Francisco Espinosa, a historian who served on an advisory committee for the investigation. “The same people that participated actively in the failed coup of 23 February 1981 and in the repression under investigation are precisely the ones bringing the complaint, and the Supreme Court, instead of shelving it, gives the green light.”

One of the especially bizarre by-products of the lawsuit, Mr Espinosa added, is that the ultra-right groups now have access to reams of testimony by victims’ families. “There are families who have asked to withdraw their information before it falls into the hands of these people,” Mr Espinosa said.

Mr Garzón is expected to be removed from his judicial post until the verdict – to the delight of the high-ranking members of the opposition Popular Party he had been investigating and the satisfaction of his critics, who sarcastically call him the “super judge”. The conservative daily ABC described the saga as “the chronicle of a professional death foretold” – the logical result of many ego-driven investigations in which the judge supposedly “skidded on ice”. “Garzón isn’t going to get out of this one,” the Falange leader, Jorge Garrido, gloated to El País.

Many in legal circles are outraged, however, by what they consider an orchestrated attempt by the judge’s enemies to remove him from the bench. “If he is eventually suspended, it will be one of the most serious defeats for Spanish justice during the democracy,” Carlos Jiménez Villarejo, a former state anti-corruption prosecutor, said. Mr Villarejo has organised Garzón tributes throughout the country, which have attracted legal scholars, artists and intellectuals such as Nobel winner José Saramago.

Mr Garzón has used Spain’s “universal jurisdiction” principle to take on thorny – and diplomatically awkward – cases ranging from Argentina’s “Dirty War” executions to tortures at Guantánamo Bay. But he embarked on the most perilous investigation of his career in October 2008 when he rattled the ghosts of Spain’s bloody past. The crusading magistrate accused former dictator Francisco Franco and 34 of his former generals and ministers of crimes against humanity in relation to the 114,000 forced disappearances and ordered the exhumation of 19 mass graves.

At first, Mr Garzón was merely accused of opening old wounds and violating the so-called “pact of forgetting” that marked Spain’s peaceful transition to democracy. Under pressure from state prosecutors, he eventually passed responsibility for opening the graves to provincial courts (who have largely ignored the matter). But last year, anger at the investigation morphed into concrete form: the accusation of “prevarication,” or ruling with knowing disregard for the law.

Mr Garzón argued that amnesty laws do not apply to crimes against humanity, and several international human rights groups support that view. “We are truly scandalised,” Giulia Tamayo, head of research for Amnesty International in Spain, said. “The UN Commission on Human Rights has repeatedly warned the Spanish government that amnesty laws were not applicable to crimes against humanity, but the Spanish authorities continue to hinder the victims’ quest for justice and reparation. Now the only judge who wanted to abide by international law is being made to pay for it.”

“No other country has gone as far as to prosecute a judge that tried to investigate such crimes,” she added.

Mr Garzón’s defence had lined up a cast of international legal experts, including Carla del Ponte, former chief prosecutor at the International Criminal Court, and Eugenio Raúl Zaffaronni, the Argentine judge who in 2005 voided the country’s amnesty law. But the Supreme Court yesterday ruled that it would not admit their testimony. The defence is appealing against the decision.

But the people most upset are the families of the victims. Mr Silva’s Association for the Recovery of Historic Memory has petitioned the court for the right to participate in the criminal proceedings. “There are many families who are depressed because of what is happening to Garzón,” Mr Silva said. “When he is placed on the stand, thousands of men and women who are awaiting justice will sit beside him.”

source:  The Independent

10 September 2009 – Secretary-General Ban Ki-moon today expressed the continued support of the United Nations for the work of the International Criminal Court (ICC), which he said has become the “centrepiece” of the global criminal justice system since it came into existence only several years ago.
“The establishment of the International Criminal Court was a landmark in the efforts of the international community to enforce the applicability of international humanitarian law, and to advance the cause of justice and the rule of law on a universal scale,” Mr. Ban said in a message to the Consultative Conference on International Criminal Justice.

The ICC is an independent, permanent court that investigates and prosecutes people accused of genocide, crimes against humanity and war crimes, and is based on a treaty known as the Rome Statue. To date, 100 States are party to the Statute, which has nearly 140 signatories.

The efforts by the UN to further the causes of peace, development and human rights are closely connected to the work of the ICC, Mr. Ban noted, adding that the world body stands ready to do all that is needed to “facilitate the Court’s noble and important mission.”

In the message, delivered by UN Legal Counsel Patricia O’Brien, the Secretary-General pointed out the increased support for the idea that justice must be an essential part of post-conflict strategies to ensure a sustainable peace.

This could take the form of international accountability mechanisms, boosting national accountability methods, and setting up possible non-judicial forums such as Truth and Reconciliation Commissions, he said.

Since the Rome Statue entered into force in 2002, Mr. Ban said, “the activities of the Court and its Prosecutor have had a discernible effect on potential perpetrators of international crimes.”

Currently, four situations – the Central African Republic (CAR), the Democratic Republic of the Congo (DRC), Uganda and the Darfur region of Sudan – are under investigation by the ICC Prosecutor.

originally from UN News Center

UNITED NATIONS — The prosecutor for the International Criminal Court said Wednesday he is collecting information on possible war crimes by NATO forces and the Taliban in Afghanistan.

Luis Moreno Ocampo said he is also conducting preliminary inquiries on possible war crimes in Georgia, Colombia, Kenya, Ivory Coast, and by Israeli forces in Gaza.

Ocampo told a briefing on the emerging international criminal justice system that he plans to open four new investigations in the next three years, but he refused to disclose any details.

The International Criminal Court, which began operating in 2002, is the world’s first permanent war crimes tribunal. Afghanistan is one of the 110 countries that have ratified the Rome treaty which created the tribunal and are therefore legally bound by its provisions.

Under the treaty, the court can step in only when countries are unwilling or unable to dispense justice themselves for genocide, crimes against humanity or war crimes.

Ocampo said it has been “very difficult” to collect precise information about some of the alleged crimes, but his office has benefited from reports produced by non-governmental organizations who “arrived before us and provided information to us.”

He said he has requested information from human rights groups and groups inside Afghanistan as well as the Afghan government – and would be “very open” to information from foreign governments.

Taliban fighters have been accused of many brutal killings. There have also been some accusations of U.S. forces in Afghanistan using excessive force and torturing prisoners.

He confirmed that allegations involved both the Taliban and NATO forces.

The Clinton administration signed the Rome Treaty establishing the court, but the Bush administration rescinded the U.S. signature, arguing that the court could be used for frivolous or politically motivated prosecution of American troops.

Asked whether any NATO soldier is now a potential target of the court if he or she commits a war crime in a country under the court’s jurisdiction, he replied that NATO’s legal adviser was at the court’s headquarters in The Hague, Netherlands last week discussing this issue.

In the training NATO is doing, Ocampo said, it is explaining to colonels that in the future they could end up before the court if they commit atrocities.

“That is the most important (thing) because these massive atrocities are planned. So if those who are planning know they will be prosecuted, they will do something different,” he said.

reposted from the Huffington Post

** I’m twittering the hearing at: http://twitter.com/bechamilton for those who can’t catch the live webcast**

There is a hearing at the ICC this morning which may seem to be on an obscure legal point to the general public, but is actually of significance to the global system of justice established by the Rome Statute.

The hearing concerns a challenge to the admissibility of the case against DRC warlord, Germain Katanga.

Charges of war crimes and crimes against humanity, including murder and rape, were confirmed against Katanga by Pre-Trial Chamber I while I was at the court last year. His trial (jointly with Mathieu Ngudjolo Chui) is due to commence in September this year. However, in a motion filed in February, Katanga’s defense team (led by the impressive British barrister, David Hooper) are challenging whether the case against Katanga is admissible (re-stated in plain English: Does the ICC have the authority to hear this case or should his case be dealt with by the DRC’s judicial system?).

Under the system established by the Rome Statute, the ICC is a court of last resort. By design, the drafters of the Rome Statute decided that national judicial systems should have primacy, and only if these systems were unable or unwilling to conduct genuine investigations and prosecutions would the ICC come into play. In legal terms this is “the principle of complementarity.” In practical terms it means that the system established by the Rome Statute aims to encourage justice at the local level first - with justice being undertaken at the international legal only when the local system fails.

I personally think that complementarity it is a very positive design feature of the Rome Statute that is not nearly well enough understood by those who lump the ICC into the same category as the ad hoc tribunals for Rwanda and the former Yugoslavia (which do not operate on the complementarity principle). As ICC Prosecutor Luis Moreno Ocampo put it when he came to office: “The efficiency of the International Criminal Court should not be measured by the number of cases that reach the court or by the content of its decisions. Quite on the contrary, because of the exceptional character of this institution, the absence of trials led by this court as a consequence of the regular functioning of national institutions, would be its major success.”

So why then is the Prosecution fighting the Defense on the admissibility of this case before the ICC?

In essence it comes down to a fight over the meaning of the word “case.”  In this morning’s hearing I expect we will see the Prosecution argue that the case against Katanga was not being investigated or prosecuted by the DRC, and they will do so using the definition of the word “case” that Pre-Trial Chamber I established several years ago in Lubanga - Namely that a case involves the same person and same conduct:  “. . . for a case arising from an investigation of a situation to be inadmissible, national proceedings must encompass both the person and the conduct which is the subject of the case before the court.” (Decision of Pre-Trial Chamber I, 24 Feb. 2006, para 37). Therefore, the fact that the DRC were investigating Katanaga is not, in and of itself, enough to make the case inadmissible. It would only be inadmissible if they were also investigating him for the same conduct as in the ICC case.

By contrast, the Defense has argued in its submissions that this interpretation of the word “case” is too narrow. They also argue that the DRC authorities would have started looking at the conduct the ICC is now looking at if the ICC had not begun its investigation.

My view, for what it’s worth, is that given the Chamber’s definition of the word “case” in Lubanga, the Prosecution’s argument is solid as a matter of law. (Moreover, with my cynics hat on I have to wonder what’s the likelihood that a panel of Judges deciding they no longer have the power to adjudicate a case that they have already confirmed the charges in??).  However Hooper rarely makes a vacuous argument, and there are some policy consequences flowing from the Chamber’s initial decision to define the word “case” as narrowly as they did in Lubanga that Hooper is the first to really draw the Court’s attention to.

In short - for anyone interested in the balance of local vs. international justice, this hearing is worth paying attention to. You can see it livestreamed through the Court’s site from 10am (Dutch time) this morning in English or French.

re-posted by IJCentral from Bec Hamilton

What was the UN Security Council (UNSC) thinking when it issued Resolution 1593 in 2005, referring the ongoing situation in Darfur to the Prosecutor of the International Criminal Court (ICC)?  Prosecutor Luis Moreno Ocampo took the case, conducted a 20-month investigation, came back with evidence, and requested arrest warrants - he did his job, in accordance with the justice mandate of the ICC.  At briefings he has subsequently given every 6 months, he has updated the UNSC on the progress of the investigation.  After obtaining arrest warrants from the ICC judges for Sudanese government Minister Ahmad Haroun, Janjaweed militia leader Ali Kushayb, and President Omar al-Bashir, he has consistently urged the UNSC and the international community represented at the UN, to execute the warrants. Instead the UNSC has balked at following through, and the African Union and the Arab League have rallied to support al-Bashir. 

Now there is even the possibility that the Obama administration might consider appeasing al-Bashir, a disgraceful approach if it happens (I suspect that Obama’s desire for dialogue with Iran, with its ties to Sudan, would have something to do with a rapprochement with al-Bashir).  So what did the UNSC and the international community expect when they asked the Prosecutor to investigate?  Did they have any plan for what to do if he came back with evidence of crimes against humanity?  They don’t seem to have thought that far ahead, or simply issued Resolution 1593 for political expediency.  But now they must act - we as global citizens must pressure our leaders to uphold the rule of law.  If you live in the U.S., write to your congressperson and President Obama and let them know you want the ICC warrants to be acted upon!  And citizens around the world, IJCentral members, send an email to your Minister of Foreign Affairs urging them to support global rule of law!

At a recent post-screening discussion of documentary film “The Reckoning: The Battle for the International Criminal Court”, a Darfuri journalist said that amongst Darfuris, the surprise is not that the ICC issued an arrest warrant for President al-Bashir charging him with crimes against humanity in Darfur, or that al-Bashir expelled 13 humanitarian groups from the Darfur Internally Displaced Persons (IDP) camps. The real surprise for Darfuris was that humanitarian organizations and the international community seemed taken by surprise by al-Bashir’s actions after the warrant was issued. As the Darfuri journalist, Tajeldin Abdalla Adam from Radio Dabanga said, ICC Prosecutor Luis Moreno Ocampo publicly requested the warrants; al-Bashir publicly said he would retaliate; so why wasn’t the international community making preparations to respond to this and to preemptively pressure the Sudanese regime to curtail its actions? Al-Bashir and his National Congress Party have been at it for 20 years, presiding over the tragedy of southern Sudan (2 million victims), arming and giving safe haven to the notorious Lord’s Resistance Army of Uganda (20,000 victims, 1.5 million displaced), and now Darfur (200,000 victims, over 2 million displaced). How long are we supposed to wait? It is time for the international community to definitively isolate President al-Bashir, and make it clear to any of his potential successors that the rogue state tactics of the National Congress Party regime will no longer be tolerated.

Accountability is not something a constituency should have to beg from its government.  A lack of transparency and a paper trail of secrets is not something that people who fight for their country and defend their democracy deserve. Alas, these types of abuses of power and abstractions of the law have become so commonplace over the last eight years that it’s hard to remember where we started and how we got into this mess.

With the recent release of the Bush administration terrorism memos we are beginning to learn first-hand what many Americans and people around the world suspected had terribly gone wrong with this manipulation of governance.  During the aftermath of (JavaScript must be enabled to view this email address) the Bush administration decided it would be a opportune moment enact a complete deconstruction of social liberties and give itself the type of impunity only sought after by the types of despots and dictators that the American government has long vowed to dethrone and displace. 

In 1998 we saw the indictment of Augusto Pinochet by the Spanish Magistrate Baltasar Garzón for crimes against humanity. On April 7, 2009 the world saw former Peruvian President Alberto Fujimori found guilty of human right abuses and sentenced to 25 years in prison. Finally, on March 4th 2009 the ICC issued an unprecedented arrest warrant for sitting head of state Omar Hassan Ahmad al-Bashir on counts of crimes against humanity and war crimes. Obviously there is a strong trend afoot in the international community to stop the egregious abuses of power and the murder of innocent civilian populations under the threat of war. We are witnessing a gradual acceptance of an international rule of law, but there is still much momentum to be built.  Not that there hasn’t been an acceptance since the Nuremberg trials as a result of World War II or after the signing of the Rome Statue, but I mean the active and engaged acceptance that brings crimes to the surface of public opinion and furthermore its criminals to court.

In March a Spanish court has moved forward into opening an official criminal investigation against top administration officials in the former Bush administration including former Attorney General Alberto R. Gonzales and former Justice Department Lawyer John C. Yoo for allegedly violating international law “by providing the legal framework to justify the torture of prisoners at Guantánamo Bay, Cuba”.  This bold step is led by none other than Baltasar Garzón, and is a necessary beginning towards accountability for the United States. Although it may be unnecessary for the United States to have to export its alleged criminals, it does seem imminent that something must be done about them. The past eight years of American involvement in foreign and domestic politics has not only been an embarrassment but a potentially ruthless and criminal interpretation of the law and must not go unpunished.

Spain’s Attorney General has already encouraged Garzón to drop his investigation into the Bush administration and President Barack Obama has assured C.I.A. operatives involved in the torture described in the terrorism memo’s “that they would not be prosecuted for actions that their superiors told them were legal.”  Are the people of the United States going to step-up and make sure its leaders are accountable for their actions?  Are they going to vow against impunity and support a global rule of law? 

Much hay has been made since the ICC announced the arrest warrants for Sudanese President Omar al-Bashir, about the fact that the warrants were issued for crimes against humanity (5 counts) and war crimes (2) but not for genocide, the third category of crime that Prosecutor Luis Moreno Ocampo had included in his request for the warrants on July 14, 2008.  Many people that I respect in the international justice field have seized on this decision by the ICC judges as if it represents some kind of a failure for the Prosecutor because they thought he should not have accused al-Bashir with genocide in the first place, or because they thought it was too controversial, or are disappointed that the judges decided against issuing a warrant for genocide.  Aren’t these critics satisfied with crimes against humanity and war crimes?  Here’s the definition of crimes against humanity from the Rome Statue, the founding document of the ICC:

“Particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. Murder, extermination, torture, rape, political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of falling into the category of crimes under discussion.”

Whatever the reasons, it really feels like splitting hairs, or finding the negative in what I see as huge positive step forward for humankind.  We finally have a Court that is capable of issuing arrest warrants for a sitting head of state - that’s amazing.  As former ICC Senior Trial Attorney says in the film “The Reckoning: The Battle for the International Criminal Court”, the Sudan/Darfur case is the kind of case the Court was made for, to hold leaders of countries to account when they commit war crimes, crimes against humanity and genocide.  As the Prosecutor said at the press conference last week announcing the warrants, the judges considered his requests and decided not to issue the warrant for genocide - this shows a well functioning and independent court, where the judges don’t simply rubber stamp what the Prosecutor gives them.  One of the judges had a dissenting opinion, but the other two decided against - the Prosecutor said he would review their arguments against and perhaps file an appeal.  So let’s focus on the positive aspects of what the ICC is doing, and provide constructive criticism when appropriate.

A genocide charge may not be hanging over al-Bashir’s head at the moment, but crimes against humanity and war crimes are, and let’s focus on that.