What Counts as Evidence of Syria’s War Crimes?

Over the past couple of weeks, I have been ‘investigating’ ongoing efforts by private non-governmental organizations to document and collect evidence of war crimes and crimes against humanity in Syria. The following is a snippet from an article that I wrote for the Washington Post’s Monkey Cage. It is based on interviews I conducted with international investigators, as well as staff from the Commission for International Justice and Accountability (CIJA), the Commission of Inquiry on Syria, and the International Criminal Court (ICC).

(Photo: AFP / Getty Images)

(Photo: AFP / Getty Images)

There is no immediate prospect for international justice or accountability in Syria. Efforts to have the United Nations Security Council refer the conflict to the International Criminal Court (ICC) have been stymied by Russia and China. The possibility of setting up an “ad hoc” tribunal to investigate allegations of crimes committed in Syria is more of an intellectual project than a political reality. While the U.N. Commission of Inquiry on Syria has produced a host of impressive and damning reports, the response of states has been meager and the conflict rages on. Even the broader debate regarding “transitional justice” in Syria misses a key point: There is no transition.

In this rather gloomy context of injustice and impunity, some have been comforted by the fact that at least someone is doing something: For the last few years, a small number of private non-governmental organizations have been investigating and documenting evidence of crimes committed in Syria. But what are the risks of such investigations? Do they outweigh the benefits? And is this the birth of a new model for investigating mass atrocities in war zones?

On first glance, it seems that groups like the Commission for International Justice and Accountability (CIJA) solve a key limitation facing other justice mechanisms: On the ground and in active conflicts, they are able to investigate crimes immediately following their commission. Other institutions – like the ICC or the Commission of Inquiry – aren’t able to directly gather evidence or document crimes on the ground. And when they finally do get access to the “crime scene” once the conflict has come to an end, key evidence has often been destroyed.

Indeed, international investigations are generally conservative, owing in part to the high-profile nature of international criminal tribunals and the hazards of deploying international investigators into ongoing conflicts. In the 1990s, investigators from the International Criminal Tribunal for the former Yugoslavia faced significant challenges in investigating ongoing atrocities in the Balkans. When the ICC opened an official investigation in the Ituri province of the Democratic Republic of Congo, it initially only dispatched two investigators. Those individuals were tasked with gathering evidence and understanding the commission of atrocities in an area not much smaller than Ireland. A more recent example is the ICC’s intervention in Libya. The Security Council requested that the ICC investigate events in Libya in February 2011 and the court issued arrest warrants in May of the same year. However, the ICC could only put investigators on the ground in October – the same month the Libyan civil war came to an end. Its cases were consequently built on evidence from sources and witnesses from outside of the country and sources within Libya that were able to gather evidence while the conflict was ongoing.

This points to another advantage for private organizations in Syria: They can be much less risk-averse than other institutions. As Nerma Jelacic of the CIJA says, “We have a higher risk tolerance than courts and U.N. agencies and that is what puts us in a unique situation … we are able to make these decisions quicker and without the security burdens that can sometimes prevent other agencies from getting on the ground and collecting such information.”

These two advantages – the ability to investigate in the midst of ongoing political violence and having a greater tolerance to risk in doing so – are important. But do they outweigh the potential costs of such investigations?

A key concern for any investigation – and the pursuit of justice more generally – is impartiality. The Commission of Inquiry has catalogued crimes and human rights abuses committed not only by the regime of Syrian President Bashar al-Assad but also by opposition groups. This poses a serious dilemma for any group investigating atrocities. Any investigation on the ground and in real time requires cooperation – often from the same groups that are perpetrating crimes. Jelacic readily admits that the CIJA needs to cooperate with some groups that may be implicated in the commission of crimes: “We have been quite open about it. In order to gain access to certain areas we need approval of opposition forces … [and] the majority of what we do are regime offences.” Continue reading

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Posted in Human Rights, International Criminal Court (ICC), Justice, Syria, UN Commission of Inquiry on Syria, War crimes | Tagged , | 1 Comment

The ICC, Israel, and Palestine – The Time Has Come The Walrus Said To Talk of Many Things

Toby Cadman joins JiC for this guest-post on why there is seemingly a reluctance on the part of the Palestinian Authority to sign the Rome Statute of the International Criminal Court (ICC).  Toby is a barrister from 9 Bedford Row. He is defence counsel at the Bangladesh Tribunal and has been counsel in the Uhuru Kenyatta case at the ICC.

Palestinian Foreign Minister Riad al-Malki following a visit to the ICC (Photo: Reuters)

Palestinian Foreign Minister Riad al-Malki following a visit to the ICC (Photo: Reuters)

There are many matters to resolve in Israel and Palestine and this may appear overwhelming to the extent of not truly knowing where to start.  But the first theme that we can address is justice and accountability.  It is only through the establishment of a system based on the rule of law that there can be an even playing field as a precondition to peace and reconciliation.  Everything else must follow as a natural consequence of this first, most important step.

However, one cannot, and should not, waive the rule of law in front of a menacing foe as a stick and carrot.  One should not choose a political solution at the expense of justice.  It has been said before but change, real change, comes from a position of strength, not of weakness.  The Palestinian Authority must recognise that its position of strength is ratifying the Rome Statute of the ICC and bringing the perpetrators to justice – not threatening its ratification for a greater political solution, however noble that cause may be.

Against that background, on 30 October 2014, I was invited by the Tunisian Presidency to attend a high level conference hosted by the Centre for Strategic Studies for North Africa to discuss Palestine in the broader political sense.  I gave a presentation on the complex jurisdiction of the ICC and alternative mechanisms for ensuring accountability.  I spoke about the role that international law can play in supporting the victims of occupation and the siege of Gaza.  It was made quite clear that there remains significant appetite to see justice done, be it by cases being dealt with before a national or international court of criminal jurisdiction, or through other judicial means, namely consideration to be given to the pursuit of those foreign nationals serving in the IDF who may be responsible for some of the very clear instances of war crimes.

The conference, although covering an array of political considerations, was dominated by the issue of an ICC investigation, following the opening speeches from a host of Palestinian groups, including members of the Palestinian Authority and human rights activists.  The conference also saw a number of international dignitaries including members of the UK Parliament and House of Lords.

I repeatedly made the point during my presentation and follow up discussions that we must not shy away from confronting Israel on these important issues – particularly the very serious allegation that its conduct, taken as a whole, may constitute a crime against humanity.

Having heard the speeches and discussions in Tunis, it is clear that the preferred route to justice and accountability would be to pursue matters before the ICC.  However, President Mahmoud Abbas and the Palestinian Authority are delaying the ratification of the Rome Statute, instead using the ever-present threat as leverage for an Israeli withdrawal from the West Bank and the drawing up of borders.  This is, in my respectful opinion, a dangerous course of action.

A young Palestinian examines damages to house in the Jebaliya refugee camp that had been hit by an Israeli strike. (The Associated Press)

A young Palestinian examines damages to house in the Jebaliya refugee camp that had been hit by an Israeli strike. (The Associated Press)

The position of Fatah therefore would appear to be one of willingness to sign, but only as a last resort, should all other routes of negotiation to achieve the stated objectives fail.  Hamas, on the other hand, has adopted an entirely different position.  It has urged the Palestinian Authority to ratify the Rome Statute, despite there being a significant risk that its own members may also face investigation over the firing of rockets into Israel and the allegation that it has used civilian installations to store weapons.  Hamas has confirmed in writing to Fatah, that the Rome Statute should be signed without delay and that it would welcome its adoption.  The delay therefore is on the part of Fatah rather than Hamas.  Such delay has in itself been criticised, however there may arguably be a method to the madness.

On 1 October 2014 the Palestinian President stated that his Government would join the ICC in The Hague in the event that the proposed UN Security Council Resolution on drawing pre-1967 borders and an Israeli withdrawal from the West Bank failed.  The plan being proposed by the Palestinian Authority would see an end to occupation in two-to -three years.  Abbas stated that if the United States vetoes the plan, as must surely be expected, the immediate ratification of the Rome Statute would follow.  If one is to consider the recent statements made by members of the US Administration in relation to the situation in Gaza and the need for a two State negotiated solution, the underlying message is quite clear. Continue reading

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JiC Hits a Million Hits

Justice in Conflict

Justice in Conflict

At some point last week, Justice in Conflict reached an important landmark: its one-millionth hit. I wanted to take this opportunity to thank all of our readers for your interest and support. It means the world to me. The blog was launched, with modest expectations, in February 2011. It has grown steadily ever since but I could hardly imagine the support and interest it has drawn. It goes without saying that this achievement would not have been possible with you. 

Thank you!

Mark

Posted in JiC News | 3 Comments

An Uncomfortable Look in the Mirror: Canada in the World, Before and After the Ottawa Shootings

Ottawa. (Photo: Creative Commons / Endlisnis)

Ottawa. (Photo: Creative Commons / Endlisnis)

Amongst many Canadians, a popular response to the shootings in Ottawa that claimed the life of Nathan Cirillo earlier this week has been: “This doesn’t happen here… This is Canada.” And that’s true enough. Political violence of the sort we witnessed this week rarely touches Canadian lives. Ottawa is one of those curiously apolitically political cities – a place where the majority of the workforce works directly or indirectly for the government but a community where global politics rarely penetrates every day life. But the Ottawa shootings should bring into relief the need for the Canadian government and Canadians at large to look themselves in the mirror and ask a simple yet tough question: why did this happen?

The easiest answer, and one that has already been proffered by a host of observers, is that a single, crazed lunatic who hated Canadian values went on a murderous rampage. This is an attractive explanation because it diminishes the possibility that any of us, and any part of Canada or Canadian society, bears any responsibility for the shootings. But this is too easy and it is simply not true. Being radicalized into Islam or any other sect or religion isn’t “crazy”. And as has become increasingly clear since the attacks, the killer was politically inspired and motivated. Moreover, while he may have acted alone, this is likely a reflection that, in planning and perpetrating acts of terror, it is more effective to work alone than plan in large groups.

Canadians and the Canadian government should look to the case of the 2011 Oslo shootings. The same refrain (“This doesn’t happen here… This is Norway.”) was palpable in the wake of Anders Breivik’s attacks on Oslo and Utøya. The same explanation (“This is the work of a crazy lone wolf”) was popular. Indeed, Breivik was initially declared criminally insane by the country’s top psychologist and thus not liable for his crimes. However, Norwegians en masse rejected the idea that Breivik was “crazy”, instead acknowledging that his attacks were politically motivated and planned. That meant that Norwegians had to ask the toughest of questions: was there something about Norwegian society that could inspire someone to take such horrific actions against innocent civilians? Being introspective in the wake of what looks like senseless violence is never easy. But Canadians can be inspired by the courage Norwegians demonstrated in looking within themselves for answers rather than solely blaming violence on the mental stability of Breivik.

An uncomfortable reality is that Canada is no longer perceived as an innocent, liberal, peace-loving state anymore. Nothing brings this into sharper relief than the attacks on Ottawa. In speaking with a senior Canadian lawyer as the events unfolded, his response was: “This is no surprise. It was only a matter of time.”

Police officers in Ottawa move flowers to the War Memorial (Photo: Justin Tang/Canadian Press)

Police officers in Ottawa move flowers to the War Memorial (Photo: Justin Tang/Canadian Press)

The Conservative government under Stephen Harper has undermined the country’s prestige and reputation as a producer and builder of global peace and justice. This may not be clear to all Canadians but it is certainly evident in the eyes of many across the globe. Having lived abroad for the last five years, I can attest to this. When I arrived in London and told people that my intellectual and academic interests lied with the Responsibility to Protect (R2P) and the International Criminal Court (ICC), I would regularly be chided with: “that’s so Canadian.” It certainly was and I took pride in the fact that R2P was a principle which would not have been developed without the sponsorship of Canada and that the Canadian government played an instrumental role in the Rome Statute negotiations that led to the creation of the ICC.

But these principles have been abandoned. The Canadian government has actively pursued a political philosophy of retribution and control that tarnishes the country’s image as an ‘honest international broker’. Harper’s record attests to an unyielding mission to reshape Canada’s international identity as a tough and hard-power state. The Harper government plays the part of destructive belligerent in climate change negotiations and tar-sands cheerleader. It is first in line to threaten Palestine with “consequences” if Ramallah pursues accountability for alleged crimes committed by Israeli forces in Gaza. While it isn’t usually described as such (many prefer terms like “militarily engaged”), the reality is that Canada has been at war, primarily in Afghanistan, for most of the last decade. And while we should judge each decision to engage in wars on their own terms, the government has positioned itself as a military – rather than diplomatic or humanitarian – middle power. The role of Canadian citizens in the Afghan detainee scandal has been swept under the rug. The government willfully left a child soldier, Omar Khadr, to rot in Guantanamo and were the only Western government not to request the repatriation of their citizens from that nefarious island prison. It left Abousfian Abdelrazik, a Canadian citizen wrongly accused of terrorism, stranded in Khartoum for years and threatened anyone who tried to help him return to Canada with aiding and abetting terrorism. In a country that takes pride in seeing Lester B. Pearson as the father of peacekeeping, the government prefers to count the number of fighter jets it will buy than the number of peacekeepers it deploys. And, making matters worse, those who disagree with the Harper government’s approach to being “hard on crime”, “tough on justice”, and “a military power” are too often portrayed as naive or betraying Canadian values. Continue reading

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The ICC, Kenyatta and African States

Uhuru Kenyatta (right) at the International Criminal Court (Photo: ICC)

Uhuru Kenyatta (right) at the International Criminal Court (Photo: ICC)

It has been a dramatic and remarkable few days at the International Criminal Court (ICC). For the first time ever, an elected President appeared before the Court. So concerned was Kenyan President Uhuru Kenyatta that, on the eve of his appearance in The Hague, he took the extraordinary measure of temporarily stepping down and handing over his executive powers to his vice president William Ruto – who, as readers will know, also faces charges at the ICC. Over one-hundred Kenyan politicians flooded into The Hague to show their support for Kenyatta and spent the night in one of the most luxurious hotels in the Netherlands (it remains unclear precisely who paid their expenses). With their evidence either weakening or under attack, the Prosecution asked Judges to indefinitely adjourn or terminate the case against Kenyatta. The Defence asked the Judges to throw the case out altogether. It remains to be seen how – or even when – the judges will rule.

While I haven’t had time to blog about recent events at the ICC, I wanted to draw readers attention to two interview programmes that may be of interest to you.

The first was for BBC Newshour on the relationship between the ICC and African states. You can find that interview (and the full program) here.

I also had the opportunity to speak with UN Dispatch’s Mark Leon Goldberg about Wednesday’s hearings at the ICC regarding the Kenyatta case. You can find that interview here.

As always, share your thoughts and opinions!

Posted in Justice, Kenya, Kenya and the ICC | Tagged , | 8 Comments

The Complementarity Turn in International Criminal Justice

ICC DRC

Former ICC Chief Prosecutor Luis Moreno-Ocampo in Ituri District, DRC (Photo: ICC)

It is no secret. The last few months and years have not been kind to the International Criminal Court (ICC). Fairly or not, the Court has been the target of a growing chorus of criticisms which insist that it unfairly targets African states and embodies the latest line of neocolonial tools imposed on weak states by the powerful West. In Libya, the ICC was left desperate and empty-handed in what was supposed to be its most recent legitimating exercise: i.e. intervening against the regime of Muammar Gaddafi. The Kenya cases – the first investigations opened by the Prosecutor’s office itself (rather than by referral from the UN Security Council or an ICC member-state) – are hanging by the thinnest of threads. Some of the Court’s biggest fish – like Joseph Kony and Omar al-Bashir, and the targets many expect should be in the Court – like Bashar al-Assad, seem more than comfortable evading justice. For adherents of the ICC, it isn’t a pretty picture.

One result of all of this calamity in the realm of international criminal justice has been a re-calibration of the expectations of what the ICC can – and cannot – deliver. This has happened not just within the halls of NGOs, academic institutions and political institutions like the UN but more subtly, within the Court itself.

Most notably, there appears to be a softening of the lofty rhetoric that the ICC can “end impunity” for war crimes, crimes against humanity and genocide. Instead, there is a nuanced but important shift towards maintaining that the ICC can contribute to ending impunity – not by prosecuting bad guys in The Hague – but by helping states prosecute perpetrators themselves.

As readers will know, a foundational premise of the ICC is that it acts in a complementary fashion to national jurisdictions. This is embodied within the Court’s principle of complementarity wherein the ICC can only investigate or prosecute crimes when the relevant state is unable or unwilling to do so itself. The Court’s first Prosecutor, Luis Moreno-Ocampo, famously exclaimed that the ultimate success of the ICC would be a world where there were no cases being prosecuted in The Hague because states were able and willing to prosecute international crimes themselves.

Kwoyelo Uganda

The judges of the ICD in charge of the Kwoyelo case (Justice and Reconciliation Project)

As the ICC has been unable to demonstrate that the majority of its warrants would be enforced, that it could have uncontroversially positive effects on the conflict and post-conflict situations in which it intervenes, and that it had the capacity to deter crimes or “end impunity”, the importance of the Court’s role in encouraging states to prosecute crimes themselves has achieved a new level of relevance.

Again, this is a nuanced shift. Complementarity has always been a core element of the ICC’s mandate. So-called “positive complementarity”, wherein the ICC galvanizes domestic interest and capacity to prosecute crimes, was placed centrally in the Office of the Prosecutor’s 2009-2012 prosecutorial strategy. But what we are witnessing now is a move from an expression of complementarity as a principle that differentiated the ICC from previous tribunals (especially the Rwanda and Former Yugoslavia tribunals) and a lofty end-goal, to entrenching complementarity as a currentprimary and strategic goal of the the Court.  Continue reading

Posted in Complementarity, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice | 4 Comments

Justifying Justice: Verdicts at the ECCC

Kirsten Ainley, an Assistant Professor of International Relations at the LSE and the Director of the Centre for International Studies, joins JiC for a guest-post on the recent verdicts at the Extraordinary Chambers in the Courts of Cambodia. Kirsten has published on the politics of war crimes trials, transitional justice, the International Criminal Court and responsibility for atrocity. She is currently editing a book evaluating transitional justice in Sierra Leone.

(Photo: Khmer Times)

The ECCC. (Photo: Khmer Times)

The Judgment in the first phase of Case 002 at the Extraordinary Chambers in the Courts of Cambodia (ECCC) was received with fanfare and considerable hyperbole on 7 August 2014. At a press conference to mark the verdict, David Scheffer, UN Secretary-General’s Special Expert on UN Assistance to the Khmer Rouge Trials, announced that: “Today, the winds of international justice swept though the fields, forests, and towns of Cambodia where millions perished.”

After a conflict that killed a quarter of the population of Cambodia and caused incalculable damage to its society, two defendants, Khieu Samphan and Nuon Chea, were found guilty of crimes against humanity relating to the forced transfer of millions of civilians and the extermination of deposed Khmer Republic officials during the Khmer Rouge’s evacuation of Phnom Penh and other urban areas in 1975. It has taken the ECCC more than 8 years and more than $200m to get to this point (and the case is not over yet – the recent verdict is only for a limited number of charges. Case 002 was split to enable efficient handling, with the second part of the trial just started). The first phase of the trial lasted 222 days, included testimony from 92 individuals and 166,500 pages of written evidence, and was attended by over 100,000 people. So, was it worth it? As a follow-up to my previous critique of the ECCC, this post assesses initial responses to the verdicts in Case 2.

The responses I focus on below are from, for the most part, Western politicians, lawyers and NGOs. This is not to suggest that responses from Cambodians are unimportant – just that my focus here is on the way the Cambodian case plays into or disrupts the dominant discourse on international justice propagated by predominantly Western commentators. This discourse, as demonstrated by Leslie Vinjamuri, has moved from a focus on justice as intrinsically valuable towards claims that justice is instrumentally valuable because of the goods it can deliver. The outcomes or consequences of justice that are most frequently asserted are deterrence and peace, on the one hand, and democracy and rule of law, on the other. Much work has been done recently to provide evidence for these outcomes. For instance, Katherine Sikkink claims that prosecutions for human rights abuses deter future human rights violations, and Olsen, Payne and Reiter claim that transitional justice mechanisms have a positive effect on human rights and democracy measures.

Reactions to Case 002 at the ECCC are of particular interest because of the paucity of democracy and respect for human rights in contemporary Cambodia. Claims that justice has had instrumental value there would be very hard to substantiate. So what do its supporters claim? Early analysis shows that, in the absence of strong claims to make about the instrumental value of justice, proponents revert to making claims about its intrinsic value. Critics of the Court also focus on the intrinsic qualities of justice (criticising the court for delivering a poor quality of justice or too little justice) but do not engage with questions of whether justice has brought positive consequences for democracy, the rule of law and so on.

As would be predicted by Vinjamuri, supporters of the ECCC made some, though rather weak, claims about the instrumental value of justice soon after the Case 002 verdict. For instance, Stephen Rapp (US Ambassador for War Crimes) said the verdict would deter future crimes by sending a message to future generations that ‘[a]nyone in a position of committing such crimes will know that “Their day of judgment will arrive. There is no escaping it in this life.”’ ECCC National Co-Prosecutor Chea Leang stated
that the ECCC process had been ‘good for Cambodia, the rule of law and democracy’ and Kip Hale (formerly of the Office of the Prosecutor at the ECCC) argued that ‘[m]any thousands of Cambodians personally witnessed a functioning court of law conducting transparent and fair trials while delivering justice’ and that ‘[t]hrough day-to-day interactions between Cambodians and internationals, the ECCC has trained many Cambodian lawyers, court administrators, and other professionals who will work in various Cambodian public and private sectors once the ECCC closes.’ However, the contemporary situation in Cambodia refutes claims that the ECCC has had a positive impact on democracy and the rule of law. The HRW World Report 2014 lists multiple HR violations on behalf of the ruling CPP government or its allies, including excessive use of force by the police in response to protests about the fraudulent national elections; widespread land-grabs by economically and politically powerful actors; violence from security forces towards people peacefully protesting these land-grabs; political imprisonment; arbitrary detentions; and frequent and large-scale abuses by the security forces which are allowed to go unpunished. In a sign of its concern, the UN HR Council has extended the mandate for the Special Rapporteur for Human Rights in Cambodia until Sept 2015.

Police crack down on garment factory workers seeking higher wages in Phnom Penh (Photo: Joe Freeman and Jethro Mullen / CNN)

Police crack down on garment factory workers seeking higher wages in Phnom Penh (Photo: Joe Freeman and Jethro Mullen / CNN)

Equally, there is no evidence that the ECCC has had positive effects even in the more narrow field of the Cambodian justice sector. The US State Department’s report on human rights in Cambodia in 2013 found that: ‘A weak judiciary that sometimes failed to provide due process or a fair trial procedure remained a leading human rights concern as large portions of society were unable to receive fair adjudications of their legal concerns … The government prosecuted some officials who committed abuses, but impunity for corruption and most abuses by government forces persisted.’

In the absence of evidence of that the ECCC has instrumental value in Cambodia, rather than reassess their prior views of the value of the Court, supporters assert the intrinsic qualities of justice. Rapp, for instance, praised the verdict for recognising the death and suffering that victims and survivors had endured and argued that the ECCC had given Cambodians a lesson in their recent history. Chea Leang noted the participation of the Civil Parties and the attendance of the public (a position which assumes participation in justice is a good in itself) and Hale asserted that the verdict ‘has immense symbolic value’ both because it managed to place ‘formerly untouchable leaders in the dock’ and also because the grudging apologies or expressions of regret by defendants were ‘important cathartic moments for a still-healing nation’. The International Center for Transitional Justice (ICTJ) commended the role the ECCC played in giving ‘an opportunity for victims and civil society to contribute to shaping a shared narrative of the past’ and Craig Etcheson (formerly an investigator in the OTP at the ECCC) emphasized the ‘extraordinary cache of documents and testimonies’ amassed during the investigation and trial processes.

In short, supporters of the Court focused predominantly on the intrinsic value of justice, rather than its consequences. What about criticisms of the Court in the aftermath of the verdict? These, too, were directed at the quality or quantity of justice rather than its results. Human Rights Watch stated that ‘[t] he convictions of Nuon Chea and Khieu Samphan are too little and too late to save the Khmer Rouge tribunal from being regarded as a failure … The goal of justice for Khmer Rouge victims has been irrevocably tarnished by Prime Minister Hun Sen’s political interference, long delays, and pervasive corruption.’ Amnesty International expressed similar views: “the … refusal of senior Cambodian government officials to give evidence, as well as allegations of political interference in other ECCC cases, is troubling and raises concerns around the fairness of the proceedings and respect for victims’ right to hear the full truth regarding the alleged crimes.’ Continue reading

Posted in Cambodia, Extraordinary Chambers in the Courts of Cambodia (ECCC), Human Rights, International Law, Justice, Transitional Justice | Tagged | 2 Comments