IJCentral: International Justice Central

THE HAGUE — The International Criminal Court has all the trappings of a weighty institution: 18 judges, a large corps of prosecutors, a multimillion-dollar budget and its own prison cells. But the court is facing mounting criticism over the handling of its first case, which may be coming apart after more than four years.

Even longtime supporters of the court, established in The Hague to deal with large-scale atrocities, say they are frustrated by what many call the unacceptably slow pace and numerous missteps that have dragged out the trial, in which Thomas Lubanga, a Congolese militia leader, faces charges of committing war crimes by conscripting children.

Judges have twice ended proceedings and ordered Mr. Lubanga’s release, because, they said, the prosecution erred in dealing with evidence and refused to carry out their “unequivocal orders,” making a fair trial impossible.

Both times, appeals judges ordered the trial resumed and errors redressed. But tensions over a range of issues between the prosecution and the judges continue.

Now, deep into the trial, the defense has produced new evidence that may undermine the entire case, namely claims by several witnesses that Congolese researchers for the prosecution enlisted some witnesses to fabricate evidence.

“The whole trial has been a nightmare since the disputes between judges and the prosecutor began in 2008,” said William A. Schabas, who teaches human rights law at the National University of Ireland, Galway, and follows the court. Relations between the bench and the prosecution have become “ugly and unhealthy,” he said. “There appears almost a breakdown between the two sides.”

Mr. Lubanga, 49, a onetime psychology student, has sat through the proceedings variously wearing a dark suit or African robes, looking somber and impassive, sometimes staring at witnesses. He was sent to The Hague in 2006 by Congolese authorities who had imprisoned several militia leaders from the Democratic Republic of Congo’s complex wars — involving years of protracted fighting fueled by ethnic strife and rivalries for power and mineral riches. Mr. Lubanga’s group, the Union of Congolese Patriots, was among the militias accused of massacring civilians in 2002 and 2003.

Prosecutors say that Mr. Lubanga was accountable for the enlisting, often by force, of several thousand boys and girls, some as young as 8, who were drugged and trained to kill, steal or mutilate civilians, and in the case of girls, to provide sex to militiamen. The prosecution presented video of Mr. Lubanga visiting militia camps in the presence of child soldiers.

The defense maintains that Mr. Lubanga was only a political leader who did no military recruiting and instead tried to demobilize children fighting in his group. It argues that he is a scapegoat for more senior leaders, some now part of Congo’s military or the government.

At the start of the trial, which was postponed numerous times, the chief prosecutor, Luis Moreno-Ocampo, presented it as a signature case that would show the world the atrocious plight of child soldiers and their destroyed lives.

The United Nations has estimated that child soldiers — defined as younger than 15 — fight in at least a dozen armed conflicts around the world.

But public knowledge of the trial, even among victims’ groups trying to follow it in Congo, has been limited by the mix of legal wrangling and the secrecy of the proceedings.

Many witnesses, including 10 presented as former child soldiers, have testified behind closed doors, either to protect their privacy or because they feared reprisals at home. Lawyers have also asked to close sessions to the public because they fear witnesses may inadvertently divulge confidential material.

“It’s still not clear to me if this is a strong case, if all this time and effort was worthwhile,” said Lorraine Smith, a lawyer monitoring the trial for the International Bar Association. “The substance of the case got lost in the procedural tangle; even the record is not clear because transcripts are missing or blacked out.”

Some chilling details have come out in the trial. One witness broke down in court when he talked of the moment when the militia killed his mother while he and his siblings hid under the bed. Another, a former girl soldier, told the court that she was abducted by the militia at age 13, and taken to a training camp.

She said recruits were shaved with broken glass and “some of us were wounded.” Training began at 4 a.m., boys and girls were often whipped for the slightest mistake and girls had to sleep with the commanders, she said.

Victims, who have been allowed to join the case as “civil parties,” an innovation at the court, have protested that the prosecution has produced a narrow indictment of Mr. Lubanga, focusing on one charge and omitting the killing and the sexual violence of his group.

“Congo has among the highest sexual violence in the world — it’s unfathomable that they brought no such charges,” said Bridgid Inder of the Women’s Initiatives for Gender Justice, one of the rights groups following the trial. She said that from the start, her group had brought large-scale rape in military camps and villages to the attention of the investigators but that it was ignored.

“This was the chance to address the constant raping of the girl soldiers,” she said.

The panel of three international judges has heard regularly about rape from witnesses for both the defense and the prosecution. But defense lawyers stopped further questioning about it, saying it was not part of the charges against Mr. Lubanga.

Fatou Bensouda, the court’s deputy prosecutor, said in an interview that the trial intended to focus on child conscription as a whole, because it was a serious problem in many places. Mr. Lubanga was charged with child conscription, she said, “because that is where we had the best evidence at the time.”

Lawyers in The Hague say they are puzzled that the first trial, dealing with a single issue, has taken so long. They point to more than a decade of experience in international tribunals dealing with Rwanda, Sierra Leone and the former Yugoslavia.

“Instead of learning of their mistakes or adopting their best practices, this court has tried to reinvent the wheel,” said Ms. Smith, of the International Bar Association.

The most serious errors in the eyes of the judges is that investigators for the prosecution collected evidence from United Nations staff members and rights groups in Congo and gave assurances that they would not disclose the identities of the sources. While the prosecution tried to insert much of that anonymous evidence in its case, the rules dictate that such material can be used only if its sources are disclosed to the judges and the defense.

“Those investigators have now left, but we’ve spent three years undoing the damage and getting permission from sources,” said one prosecution official.

Another problem arose because investigators had worked with outside intermediaries in Congo who served as local contacts and introduced possible witnesses. Prosecutors said such people were indispensable in a place where they have no office and are not familiar with the territory and the culture. But judges were furious when prosecutors refused orders to provide the names of some intermediaries because they had to be moved first to a safer place.

Some lawyers following the trial believe that the court may expedite the pace now that a second trial was started this year and a third trial was to begin on Monday.

The optimistic view is that the pitfalls of the first trial will serve to strengthen the institution.

Tracey Gurd, senior advocacy officer for the Open Society Justice Initiative, a legal rights advocacy group, said in an appraisal of the case last January that the court’s effort to protect Mr. Lubanga’s rights had “helped build confidence that the I.C.C. is an institution determined to be fair.”

But the outcome of the Lubanga trial is still uncertain. Later this month, the defense will rest its case, and Catherine Mabille, the lead lawyer, has said that she would ask the court to dismiss the case.

source: The New York Times

Despite his detention at the ICC, indictee’s hold over western DRC remains strong.

With the war crimes trial of Jean-Pierre Bemba due to start in the Hague next week, it seems unlikely that he will run in the 2011 elections in the Democratic Republic of Congo, DRC - but the former vice-president continues to exert a large amount of political influence in the country.

Bemba, who remains the leader of the Movement for the Liberation of Congo, MLC, was arrested by Belgium authorities in 2008 and transferred to the International Criminal Court, ICC. He faces two counts of war crimes and three counts of crimes against humanity relating to atrocities he allegedly committed in the Central African Republic, CAR.

In the 2006 election, Bemba won a significant 42 per cent of the total votes cast, while incumbent president Joseph Kabila secured 58 per cent, according to the country’s independent electoral commission. The outcome of the ballot was broadly accepted by international observers.

Most of Bemba’s support comes from the west of the country, including the area around the capital Kinshasa, where many of his supporters remain critical of Bemba’s detention, viewing it largely as an attempt by Kabila to get rid of a formidable adversary.

“Many people in the west [of DRC] feel that he was unfairly imprisoned,” Jason Stearns, an expert on the DRC conflict and creator of the popular blog Congo Siasa, said. “Congo is full of warlords and criminals… [people think that] the fact that one would exclusively pursue Bemba is unfair and biased against Bemba.”

It is not difficult to find people in the west of the country who are outraged by Bemba’s arrest and detention.

“Bemba should be freed before the election so that he can come and end the suffering of the Congolese,” Kalala Jean-Marie, who lives in Limete, an area of Kinshasa, said. “All the Congolese are counting on him, after being so disappointed by Kabila, and so he must be returned home. Bemba is innocent and [ICC prosecutor] Luis Moreno-Ocampo has not gathered sufficient evidence to prove his involvement in war crimes.”

Emmanuel Malonga, also from Kinshasa, says that Bemba’s continued detention at the ICC is unjust.

“The Congolese authorities have used the ICC to get rid of Bemba ahead of the 2011 elections,” he said. “But the MLC has a great vision for this country, and any candidate that stands against Kabila will be voted in.”

ALTERNATIVE TO BEMBA

One of the problems for the MLC at the moment is that there is no strong alternative to Bemba, who continues to command strong support in key areas.

As a wealthy businessman, Bemba is also thought to have sufficient funds to be a powerful challenger in the 2011 election, although many of his personal assets have now been frozen. This is so that, in the event that the ICC hands down a guilty verdict, compensation can be paid to his victims.

“It is very difficult for us to go forward if Bemba doesn’t come back to Kinshasa and lead our party,” Germain Kabinga, an MLC spokesman, said. “We are sure that, with Bemba in Kinshasa, we can win the election in 2011. Without him, winning the election will be very difficult.”

Like many in the MLC, Kabinga claims that the influence Bemba continues to wield makes him a political target for Kabila’s ruling party.

“We think that some people are working in the shadows to make certain that Bemba is out of Kinshasa when the elections are held in 2011,” he said. “This is why we say that this is a political trial.”

But Felix Tambwe, a member of the People’s Party for Reconstruction and Development in Lubumbashi, which is allied with Kabila, told IWPR, “We have no interest in meddling in this case because the crimes have been committed outside of the DRC. What power do we have to influence the ICC? With Bemba as candidate, we are not afraid to go to the election because our candidate [Kabila] won in 2006. We just want justice to be done without bias. Only the ICC has the power or mandate [over whether to convict him or not]. This is nothing to do with the Congolese government.”

Georgette Seya, a member of the Alliance of the Presidential Majority, a political grouping formed by allies of Kabila, added, “No one is above the law and Bemba must answer for his actions. If he is innocent, he will be released, but the important thing is to make sure the law is applied in full, to deter other criminals to come.”

It is conceivable that Bemba could run in the DRC elections - which according to the constitution need to be held by next September at the latest - even though he is being detained by the ICC, since he has not been formally convicted.

There is a precedent for detainees being permitted to contest general elections. In 2007, the International Tribunal for Yugoslavia, ICTY, granted Ramush Haradinaj, a former Kosovo Liberation Army commander, permission to stand in the country’s elections whilst still on trial.

It looks unlikely, however, that the same scenario would happen in Bemba’s case.

Guillame Lacaille, an analyst at the International Crisis Group, says that the MLC’s top leaders were already in agreement as early as November last year that if Bemba was not out of jail and able to campaign before the start of the electoral campaign, then another candidate would be chosen.

But Kabinga says that no decision has yet been reached.

“Certainly, one of the hypothesis is that [Bemba could still run], and we are working on this hypothesis,” he said. “But we want to see whether, at the time of the election, Bemba is still being held by the ICC. Then we will decide what to do.”

The question remains: if not Bemba, then who will lead the MLC into the next election?

Kabinga dismisses the question of a replacement for Bemba with a laugh, saying that he still holds out hope that the wealthy businessman can lead the party to triumph.

“The truth is that the only one who can represent our party in this election is Bemba,” he said. “If the time comes and Bemba isn’t available, then I’m sure that Bemba himself will tell us what to do. And it will certainly be in the right way to help our people to be free, to have a real leadership that can take us and our country forwards.”

The question of who Bemba will endorse in his absence remains a crucial one, given his strength in the country. But some question his apparent popularity.

“It’s not clear whether his popularity in the west [of the country] is due to the mobilisation of the party or the cult of personality… and the fact that he’s from the west,” Stearns said.

In the build-up to the elections in 2006, Bemba did not poll very strongly. It was only nearer to the elections that his support really started to grow, largely because rival Étienne Tshiksekedi fell out of favour with the electorate, according to Stearns.

In fact, the western Congo region may be more united in its hatred for Kabila than its allegiance to Bemba.

Filip Reyjentns, law professor at the University of Antwerp, said that the support Bemba has built up in the west was stemmed from trying to “beat Kabila by voting for someone else”.

Over the last four years, both Bemba and Kabila have faced weakening support from people in their respective strongholds in the west and east.

Bemba’s rebel group was based in Equateur, a western province. Now that he no longer has a military presence there, some think that he may not be able to count on the same level of backing from the region.

Meanwhile, Kabila’s presidency is under fire for not delivering on its four-year reconstruction programme, aimed at improving unemployment, infrastructure and education.

“He knows now that he has no popular base, except maybe in Katanga, as a tribal reflex,” said Lacaille, referring to Kabila’s home state. “His strategy is therefore to make sure that no serious candidate challenges him in 2011.”

A CROSS-REGIONAL ALLIANCE

Both Bemba and Kabila’s parties need to build key cross-regional alliances with strong local parties to stand a chance to gain an electoral majority.

In the east, Bemba never had much popularity and his troops are suspected of committing atrocities in the north-east. In the west, there is vitriolic hatred for Kabila.

Bemba’s defence lawyer Aime Akilolo Musamba says that he has “never heard about Bemba endorsing another candidate”. However, there are rumours of a possible alliance with Vital Kamerhe, speaker of the national assembly, who has a strong following in the east.

“The alliance with Kamerhe could be a winning ticket,” Lacaille said. “That will be huge and it is a likely scenario.”

An alliance with the MLC would give Kamerhe a party from which he could launch a bid for the presidency. But more importantly, it would give him the support that he needs in the west.

“If Kamerhe tries to build up an alliance with Bemba, it is with Bemba not with the MLC,” Lacaille said. “The structure of the MLC may be… useful, but what will be more useful for Kamerhe is the benefit from the popularity of Bemba in the west.”

Other smaller contenders include Tshiksekedi and Kengo wa Dondo, a former prime minister under Mobutu.

Tshiksekedi is an elderly, veteran politician who formed the first strong opposition movement to former president Mobutu Sese Seko. While he has the backing of a local party structure, most of his support is in the centre of the country, in the Kasai provinces and in Kinshasa.

Stearns says Tshiksekedi could extend his influence to urban centres outside Lubumbashi and Katanga, where intellectuals support his political stance.

But beyond that, in the rural areas, he could be weakened trying to build alliances with local political leader driven by ethnic rivalry. It’s uncertain how much support he would have outside of Kinshasa.

Although he is generally lauded as a politician with principles, Tshiksekedi – who boycotted the last election which he decried as skewed and biased - will find it hard to counter his image as a withdrawn recluse, whose stubbornness and old age are working against him.

On the other hand, Dondo is the current president of the senate and is well-recognised, although his domestic popularity is weak and he may also be criticised for being too old. However, because he is respected and experienced, he may have the backing of Angola, who favour an economic alliance with DRC, which would allow him to build a larger campaign.

In any case, the elections come at a time of deep disillusionment with the political leadership.

In 2006, there was a high turn out for the first free elections, with hopes raised of a new leadership, new country and a new constitution. The enthusiasm slowly died as stagnation settled in and much remained the same year after year.

This report was produced by Anjana Sundaram and Blake Evans-Pritchard in The Hague, Heritier Maila in Lubumbashi and François Kadima in Kinshasa.

source: IWPR

There’s been a curious development at the ICC since I was away that is worth keeping an eye on for those interested in following the precedent-setting decisions of the court’s first trial - against DRC militia leader, Thomas Lubanga Dyillo.

In essence, representatives of the victims are trying to get in charges of sexual slavery and cruel and inhuman treatment that many human rights organizations criticized the Prosecution for not charging from the outset. What is surprising is that the Majority of the Trial Chamber (Fulford dissenting) is considering the request. I started writing a summary and then saw that Kevin Jon Heller over at Opinio Juris has already done the work for me.

It is worth reading Heller’s analysis in full because the implications of where this ends up are significant. While my heart is with the representatives of the victims, my head is not. If the judges get to effectively “add” facts after the Prosecution has presented its case, not only does this impinge on the rights of the accused, but it also means the Prosecution loses its prerogative to determine the parameters of its case.

from Bec Hamilton’s blog

Today’s New York Times report that the U.S. Justice Department is advising pursuit of prisoner-abuse cases and allegations of torture is a welcome development and a hopeful step in the restoration of respect for the rule of law in our country. The recommendation made to Attorney General Eric Holder by the Office of Professional Responsibility includes cases in Afghanistan that had been closed by the Bush administration - might these be some of the same cases that are being examined by the Office of the Prosecutor of the International Criminal Court (ICC)?  Attorney General Holder is making a bold and necessary move, and it will be fascinating to see how far the findings will lead up the chain of command of the Bush administration - perhaps to the “Decider” himself?

Prosecuting heads of state is always a tricky business fraught with political peril, as the ICC issuance of an arrest warrant for Sudan’s President al-Bashir clearly demonstrates.  But it’s good to bear in mind the most recent example of a successful prosecution of a head of state, that of ex-President Alberto Fujimori of Peru, convicted to 25 years in prison for committing human rights crimes while in office.  It was an arduous 17-year process for the victims, but they persisted during the dark years of the zenith of Fujimori’s power in the 90s, dogging him after he fled to Japan in 2000, and getting him extradited to Peru after he landed in Chile in 2005 to try to stage a political comeback.  His extradition to a prison in Peru was followed by loud and violent protests from Fujimori’s supporters, including the desecration of the Eye That Cries, a memorial to the 70,000 victims of Peru’s 20-year battle with Shining Path, but the trial went forward nonetheless.  It’s surprising that the trial of Fujimori has received so little attention from the international press - it marks a historical milestone not only for Peru but for the ongoing struggle to establish an effective international justice system, and it should be celebrated!  An excellent must-read book on the subject is Prosecuting Heads of State, an overview of efforts to bring rogue leaders to account which reveals some surprises, like the fact that since 1990 at least 67 former heads of state have been formally prosecuted for serious human rights violations or economic crimes committed during their administration. You can read the introduction to the book or order it at the website of the International Center for Transitional Justice (ICTJ).

** 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

I urge you to read Justice Richard Goldstone’s wonderful and concise overview of the state of international justice, published on the Op-Ed page of today’s New York Times. It provides an encouraging assessment of the remarkable progress that has been made on the international justice front, a reminder that all the efforts to cultivate international respect for the rule of law, spearheaded by a “mature global network of human rights organizations”, are bearing fruit and reining in the culture of impunity enjoyed by the most powerful violators of human rights.  Perpetrators of mass atrocities used to living by the rule of force and negotiating amnesties and personal benefits in exchange for peace are finding out that that route to retirement is no longer open for them - Charles Taylor is a stark example.  And the arrogance of Fujimori’s ploy to return to Peru for a presidential run, even though he was a fugitive from justice, led to his landmark trial that ended in a conviction and 25-year sentence for human rights violations.

Justice Goldstone is right to remind us all about the progress made in the quest for a world where justice and human dignity prevail.  Human rights activists and concerned citizens, often feeling beleaguered and powerless in the face of myriad conflicts, unbridled violence, and oppressive regimes, need to see that if we persevere there is light at the end of the tunnel.  Justice Goldstone was just awarded the MacArthur Award for International Justice, a well deserved recognition of his incredible career and accomplishments in advancing international justice, a list too long to enumerate in this post.  Skylight Pictures made a short film that honors Justice Goldstone’s role in the creation of an effective international justice system - it was shown at the MacArthur-sponsored award ceremony in The Hague on May 25, and you can see it here.

Now we have to get down to the business of bringing accountability for the abuses of rule of law and human dignity perpetrated during the Bush administration - No One Above the Law! And that includes President Omar al-Bashir of Sudan…

Angelina Jolie’s visit to the Thomas Lubanga trial this week at the International Criminal Court made the celebrity gossip press yesterday and the twittersphere, as several tweets popped up on the International Criminal Court (ICC) feed on the IJCentral map.  With six children of her own, it’s good to see her using her celebrity power to bring much-needed attention to the crime of recruiting child soldiers.  Angelina is very committed to the ICC and its justice mandate, and is very informed about the Court and its activities.  Last year through the Jolie/Pitt Foundation she sponsored a day-long symposium at the Council on Foreign Relations in New York, bringing together several luminaries of the international justice world to discuss U.S. policy toward the ICC.

There is actually a great latent interest in U.S. policy toward the ICC.  After every screening on the festival circuit of The Reckoning: The Battle for the International Criminal Court the first question audiences ask is “What is Obama’s policy on the ICC?”  We’ve found that audiences come out of the film feeling energized and looking for a way to get involved with the international justice movement.  The national U.S. broadcast of The Reckoning on PBS on July 14 (on the P.O.V. series) will be the launching pad for No One Above the Law, a campaign to generate support for global rule of law, and reengage the U.S. with the international justice movement.

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? 

“We haven’t waited 17 years to get justice…we’ve fought 17 years to get justice.”  This quote from Eduardo Gonzalez of the International Center for Transitional Justice is in reference to the victims and members of Peruvian civil society that have been struggling since 1992, without pause, to have Peru’s ex-President Alberto Fujimori face justice for the human rights violations perpetrated during his 10-year regime. We met Eduardo in 2002 when he was working with the Peruvian Truth & Reconciliation Commission, and Pamela Yates and I were scouting to make “State of Fear: The Truth About Terrorism”, the Skylight Pictures documentary about Peru’s 20-year “war on terror” with Shining Path, which covers the role that Fujimori played in gutting his country’s democracy in the name of security, committing the crimes that led to today’s guilty verdict and 25-year sentence.  Today is a big day for all Peruvians that want their country to be ruled by law, but Fujimori’s supporters will surely retaliate as they are a violent cohort.
It’s the first time a democratically elected Latin American president was found guilty in his own country of rights abuses, and Gisela Ortiz and Raida Condor (pictured here) deserve a lot of the credit for it, as they battled tirelessly for 17 years to see Fujimori face justice for ordering their brother and son killed in the La Cantuta massacre.  In Q&As for “The Reckoning: The Battle for the International Criminal Court” I often point to the example that Latin American civil society presents to the world: since the 60s and 70s, when the majority of the region was ruled by dictatorships, we have come to a present ruled by democracies.  It’s a remarkable achievement of what was considered to be an impossible task: namely, to have military leaders and politicians face justice for abuses committed against their own citizens.  To those who criticize the ICC arrest warrants charging Sudanese President Omar al-Bashir with crimes against humanity and war crimes, saying that it will be a setback for peace, I say look at Latin America and the role that the rule of law played in the continent’s transformation to democracy.

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.

It’s high time to make a concerted and sustained international military intervention to capture Joseph Kony and bring the nightmare of his crazed militia group, the Lord’s Resistance Army (LRA) to an end.  Today’s story in the New York Times, describing the atrocities inflicted on the peaceful rural people of the remote northeastern corner of the Congo, in and around Garamba National Park, is truly a horror story of innocent civilians being hacked to death and babies’ heads being torn off.  I hope no one is still talking about lifting the ICC warrants for the arrest of Kony and his top leaders.  It’s good that the US military has chosen to contribute tactical advice and information, as reported in the NY Times story, to help the Ugandan forces in their effort to rout and apprehend Kony, but the hapless Ugandan army will need more than advice and information to get the job done.  Even the “Kaibiles”, Guatemalan special forces sent after the LRA by the UN a couple of years ago, were decimated by Kony’s forces - let’s stop underestimating the LRA and send out some serious troop numbers, like the UN peacekeeping force sent into East Timor in 1999, to end his reign of terror once and for all, restore peace and stability, and put Kony on trial for war crimes at the ICC.

Senegal’s President Abdoulaye Wade says that he wants to hand over former President of Chad Hissene Habre over to the the African Union (AU) to face trial for crimes against humanity.  Habre is accused of killing 40,000 and torturing 200,000 during his 8-year reign, which would definitely make him an International Criminal Court (ICC) case, but for the fact that his alleged crimes were committed before the temporal jurisdiction of the ICC went into effect in July 2002 (Habre fled to Senegal after his regime collapsed in 1990).  Of course, as Reed Brody of Human Rights Watch says, the AU is not a state and has no capacity to try Habre.  Senegal’s President Wade says he doesn’t have the resources to create a special court and put Habre on trial, and doesn’t want to hand him over to Belgium where a court has sought his arrest based on universal jurisdiction, because he doesn’t want to see an African leader tried outside of Africa.  This whole jurisdictional mess points out the value of having a permanent ICC in place.  If Habre had committed his crimes after 2002, he would be in the sights of the ICC, as President Omar al-Bashir of Sudan is now.  Because of the circumstances, a universal jurisdiction case from a domestic national court such as the one opened in Belgium against Habre seems to be the only option, but the world of international justice will have a lot more clarity when all countries have ratified the ICC and it has universal jurisdiction based on the consensus of an international treaty, the Rome Statute.

The balance between the people and the state has always been precarious, a see-saw between our collective needs that can only be guaranteed by a strong, mature state, and our sacred right to live our lives the way we see fit, and most importantly to control and alter the state that governs in our name – “we the people.”

Remember when you were a kid on that playground see-saw, and you partner, a little heavier than you, was able to keep you up in the air before pushing off to set the ride in motion once more – and remember the times when the trust was broken and your partner jumped off, letting you drop with an ass thumping jolt?

“We the people” are about to be dropped onto our collective ass by the highest court in the land.  The “Roberts court” is on the verge of reversing basic constitutional protections, in place for almost 100 years – the 4th Amendment right to be secure from tyrannical search, seizure, and false arrest.

In 1914, in a case called Weeks v. United States, the Supreme Court ruled that evidence obtained through unconstitutional search & seizure could not be used in court; it would be considered the poisoned fruit of the poisonous tree of police misconduct.  Throughout the years this ruling has been strengthened.  In 1961 the Warren court in Mapp v. Ohio ruled that the exclusionary rule applied to all state trials.  The strengthening of these rulings has been a powerful check on City, State, and Federal police agencies from overstepping their mandates and abusing their power. 

Now Chief Justice Roberts with a 5-4 conservative majority wants to erase this “exclusionary” protection. The first blow has been struck in a decision handed down in Herring v. United States, this January. In a recent NY Times article Adam Liptak discusses the case and clearly illuminates the dangers we face. 

In the US we have a truly robust judicial system, and we are guided by a rule-of-law.  But this rule-of-law must never be taken for granted.  Unless we are vigilant, and defend our civil liberties at home, our protests over abuses abroad will be marred with the stain of hypocrisy.

The trial of Congolese warlord Thomas Lubanga Dyilo, charged by the ICC with the war crime of recruiting child soldiers, has begun today - this is a historic moment, the first trial of the permanent and independent International Criminal Court (ICC).  One of the singular features of the ICC is the participation of victims under their own representation.  Today victims representative Carine Bapita, a Congolese attorney who appears in The Reckoning, gave an eloquent opening statement describing the generational damage that the recruitment of child soldiers does to a community - the children are drugged and sexually abused, alienated from their communities, their education stopped.  But they are taught to wield weapons, to kill, to loot and pillage and use force to get what they want, and as Ms. Bapita said, the prevalence of former child soldiers in eastern Congo has become a time bomb, a pool of young people who are psychologically damaged and predisposed to turn to crime for their survival, since they are having trouble reintegrating to communities who fear them.  The application of justice in the Lubanga case (and other accused warlords that are in ICC custody and will soon face trials) has to be followed by a plan of reparations and reintegration for the former child soldiers, to at least in some measure ameliorate the damage done by their recruitment and use as killers and sex slaves in the battlefields of the Congo resource wars.

The trial proceedings are streamed live from the ICC (usually starting at 10:00am local time in The Hague until 4:00pm local time, with a recess for lunch), and available at this link: http://livestream.xs4all.nl/icc1.asx