Justice for Sexual Violence and Gender Crimes in Argentina

Posted on May 25, 2012 by Mark Kersten

The following is a guest-post on gender and sexual violence as crimes against humanity and torture in the context of Argentina’s Dirty War by Mariana Rodriguez Pareja and Alia Al-Khatib, who is a human rights activist and Vassar Maguire Fellow in Buenos Aires, Argentina. Enjoy!

(Photo: Stephen Perry)

The military coup in 1976 began the worst phase of Argentina’s recent history, the so-called National Reorganization Process, which left 30,000 people killed or forcibly disappeared according to official estimates.  In contrast, the restoration of democracy in 1983, with the help of Raul Alfonsín, brought with it a pursuit of justice and truth, especially with the National Commission for Disappeared Persons (CONADEP) and its report, Never Again, as well the famous Trial of the Juntas in 1985.

This process of justice was quickly truncated in 1986 when the National Congress approved the laws of Full Stop and Due Obedience.  These laws prevented national courts from investigating mid and low-level military members for their actions during the dictatorship. Likewise, those who were not included within the standards outlined by these laws benefited from the presidential pardons of Carlos Menem in 1989 and 1990.

Following a strong agenda for justice and memory, former President Nestor Kirchner sent to Congress in 2003 a law which declared the amnesty laws null and provided constitutional status to the Convention on war crimes and crimes against humanity.  Another breakthrough occurred in 2006 when the Supreme Court declared unconstitutional the laws of Full Stop and Due Obedience.

The “mega-trial” ESMA    

The Navy Mechanics School or ESMA is located in the city of Buenos Aires. The largest clandestine detention center during Argentina’s military dictatorship functioned within its facilities.  About 5,000 people were arbitrarily detained, tortured and disappeared, and only about 200 have survived2.

Due to the magnitude of the cause and the number of defendants, the trial or “mega” trial, as it is called in the local media, was divided into three parts.  In 2011, the Federal Oral Court No. 5 in the city of Buenos Aires in a landmark judgment convicted former military officers for crimes against humanity committed in the ESMA. According to the ruling, 12 defendants were sentenced to life imprisonment, two to 25 years in prison, one to 20 years and another to 18 years in prison.  Two defendants were acquitted, however, and remain in custody for other pending cases.

The next trial for crimes committed in the ESMA begins in August of 2012.  It is set to be the largest in the country, with 61 accused and approximately 800 victims.  While charges of torture and murder have been brought, there has been no mention of charges for sex crimes committed in the detention center. Even as testimony revealed sexual abuses in clandestine detention centers, the focus has been on other crimes committed during this period.  To date, there is only a single case on sexual violence committed during the military regime, dated June 16, 2011 from the Federal Court of Mar del Plata, No. 2086, though crimes of a sexual nature have previously been treated as “torture.”

As international criminal jurisprudence evolves and incorporates crimes of sexual violence within the context of systematic crimes committed by the State, a strong push has emerged in Argentina to address these abuses.

Dirty War Argentina

(Photo: Nadim Ab)

Sexual violence as a crime against humanity  

Rape and sexual violence are acts which constitute genocide, according to the judgment in the Akayesu case from the International Criminal Tribunal for Rwanda. Such crimes have also been classified as forms of torture and war crimes.  For the first time in 2001, an international criminal tribunal framed sexual violence as a crime against humanity. During  the case Kunarac et al. at the International Criminal Tribunal of Yugoslavia (ICTY), three Bosnian Serbs were convicted of systematic sexual violence committed during the Bosnian War.  This was the first conviction in an international tribunal that recognized sexual violence as a crime against humanity.     Continue reading →

Posted in Argentina, Crimes against humanity, Sexual Violence, Torture | Tagged , | 1 Comment

Justice in Libya: Investigating NATO?

Posted on May 21, 2012 by Mark Kersten
NATO bombing in Libya

A Libyan man walks through an apartment damaged by NATO bombs in September 2011 (Photo: Tyler Hicks / The New York Times)

A recent report released by Human Rights Watch, entitled “Unacknowledged Deaths: Civilian Casualties in NATO’s Air Campaign in Libya”, has called upon NATO to thoroughly investigate any of its air strikes in Libya last year that killed civilians. NATO reacted sharply, exclaiming that it “deeply regret[s] any instance of civilian casualties for which NATO may have been responsible,” but that “the specific targets struck by NATO were legitimate military targets”and that the organization did everything possible to ensure that the loss of civilian life was minimal. The report and NATO’s response to it have recently triggered a timely debate: could, should and will the International Criminal Court investigate NATO’s role in the Libyan conflict?

Should They?

NATO was involved in a massive aerial campaign in Libya for eight months, there is no escaping that civilians were killed as a result, and any instances where this occurred should be investigated. If NATO or its member states are unwilling to thoroughly and transparently investigate incidences where their bombings resulted in a significant number of civilian casualties, it seems rather clear that the ICC should investigate NATO’s actions in Libya. This, of course, does not mean that NATO is guilty of committing war crimes or that NATO’s intervention should be vilified. There is an ever-present risk of demonizing NATO and the US, not for what they do, but simply for being Western. As David Rohde recently put it: “Some of the perceptions are exaggerated. The U.S. and NATO are not evil incarnate, nor are they perfect.”

There is a general acceptance that NATO’s intervention resulted in a remarkably low number of civilian casualties. Notably, while it was critical of NATO in some cases, the report of the UN Commission of Inquiry on Libya concurred that NATO had taken extensive precautions to prevent civilian deaths. HRW also accepts that civilian casualties were likely minimal. In this context, it is worthwhile highlighting that neither HRW nor the Commission of Inquiry have called on the ICC to investigate NATO, believing that NATO can and should investigate cases of civilian casualties themselves.

Of course, NATO’s success in minimizing civilians deaths does not excuse those instances where there were civilian deaths from being investigated. If there exists any right to truth for victims and survivors to know what happened to their family members, friends and communities, investigations into those aerial missions that resulted in civilian casualties are necessary.

Perhaps the most persuasive reason proffered as to why NATO shouldn’t be investigated is the argument that it would make future NATO interventions in response to atrocities less likely. But this argument presumes that NATO’s mandate cannot be enchanced from being investigated. On the contrary, an investigation by the Court that clears NATO of war crimes would boost the military organization’s credibility in combating atrocity crimes. It would also keep pressure on NATO to continue efforts to minimize the possibility of any civilian deaths in contexts where it intervenes.

Accepting that the ICC should investigate NATO crimes, the question becomes can they?

Can They?

There is no legal barrier to investigating citizens of those NATO states involved in Libya which are also signatories to the Rome Statute. A more controversial question, however, emerges with citizens of NATO members who are not members of the ICC, most obviously the United States. As I have argued elsewhere, the UN Security Council’s referral of Libya to the ICC, under Resolution 1970, was politically tailored by the Security Council (see also my recent academic analyses [here and here]). In this context, the US pushed through Operative Paragraph 6 of Resolution 1970 which excludes citizens of non-state parties from the Court’s jurisdiction, by stipulating that the Council: Continue reading →

Posted in Human Rights, ICC Prosecutor, International Criminal Court (ICC), Libya, Libya and the ICC, NATO | Tagged , , | 10 Comments

LRA Commander, Caesar Achellam, “Captured” – Some (Mostly Skeptical) Thoughts

Posted on May 15, 2012 by Mark Kersten

Caesar Achellam following his capture on the DRC – CAR border. (Photo: James Akena / Reuters)

In what has generally been reported as a “major coup” for African Union forces – and by extension the KONY2012 faithful – a senior LRA commander, Caesar Achellam was detained over the weekend while crossing the border between the Democratic Republic of Congo and the Central African Republic.

While the Ugandan army (the UPDF) were quick to exclaim that they had captured a “big fish” and many reported that Achellam’s arrest marked a huge victory in the hunt for Kony, there are good reasons to be skeptical of these claims.

Who is Caesar Achellam?

Achellam is a senior commander in the LRA. He was, at least as of 2008, a Major General. It was reported that he was close to Vincent Otti, the LRA’s second in command who was executed in 2008, on orders from Kony, for having been too deeply involved in efforts to resolve the ongoing conflict. Many of those who were close to Otti feared for their lives and Achellam apparently sought to surrender himself. While it is unclear how, he clearly regained the trust of Kony, rising to a prominent position in the LRA. Some say that, at the time of his “capture”, he was the fourth most senior commander in the LRA, perhaps even the LRA’s most senior strategist. Despite his seniority, however, Achellam is not amongst those LRA combatants indicted by the ICC.

Something Smells Fishy

There is no doubt that this is a major PR victory for the UPDF and its attempts to “kill or capture” Kony. They are clearly treating it as such as well. In the immediate aftermath of Achellam’s “capture”, regional officials were barred from publicly admitting that Achellam was in UPDF custody. The UPDF wanted the media to gather in a South Sudanese town before Achellam arrived and was paraded before them.

Another rather odd aspect of Achellam’s “capture” was the friendliness with which he was met by UPDF soldiers. He emerged from a military helicopter smiling and seemed to be greeted warmly by UPDF personnel and Felix Kulayigye, the Ugandan army’s chief spokesperson. Further, Achellam was candid and open about supporting ways to end the rebellion and dismantle the LRA. In interviews he declared that “”My coming out will have a big impact for the people still in the bush to come out and end this war soon.”

This may, at least partly, be explained by the reasons why Achellam was detained. Despite media reports and statements to the contrary it is not clear whether Achellam was captured or whether he surrendered. Interestingly, in describing what had transpired, Achellam says: “For me, I knew, I was coming out.” (see video below) Continue reading →

Posted in Lord's Resistance Army (LRA), Uganda | Tagged , , | 8 Comments

The ICC in Libya: Beyond Peace vs. Justice

Posted on May 10, 2012 by Mark Kersten

This post is my contribution to a timely symposium being held at the Canadian International Council on the “peace versus justice” debate. I encourage you to check out other contributions to the symposium from Leslie Vinjamuri, Alana Tiemessen and Stephen Brown, amongst others. Enjoy!

(Photo: Reuters)

Just weeks after Colonel Moammar Gadhafi initiated his crackdown on civilian protesters, the United Nations Security Council unanimously passed Resolution 1970, referring the situation in Libya to the International Criminal Court (ICC). Human-rights groups joined a chorus of international actors in exclaiming that the Security Council’s decision was a victory and milestone for justice. Almost as quickly, however, critics of the ICC began to blame the Court for impeding a peaceful resolution to the conflict in Libya. The controversy was unsurprising. As in the case of northern Uganda and Sudan, commentators and scholars alike have framed the ICC’s judicial interventions as a trade-off between peace and justice. But was either side in this dichotomous debate right in its assertions?

Readers are likely familiar with the arguments central to the “peace versus justice” debate. On the one hand, many claim that there is “no peace without justice” – that achieving accountability and fighting impunity is a moral imperative, and that no “true” peace can exist if justice isn’t achieved. Advocates of the ICC further argue that pursuing justice can marginalize the perpetrators of atrocities, halt the spiral of violence by preventing victims from seeking violent retribution, establish truths about the commission and experience of atrocities, and provide closure to victims and survivors.

On the other hand, critics of the ICC argue that there is “no justice without peace” – that seeking to bring warring parties to justice can hamper peace processes by making it impossible to offer amnesties or exile to belligerents. Faced with the prospect of trials and imprisonment, warring parties will not engage in peace negotiations. If justice is pursued at all, proponents of this perspective argue, it should wait until a certain degree of stability and order is firmly in place.

The arguments on both sides are intuitive and simple enough to seem sensible. The problem is that they often misrepresent reality.

Libya is a case in point. Observers didn’t shy away from deploying “peace versus justice” rhetoric in their descriptions of the crisis in Libya. In particular, critics of the ICC claimed that the Court’s involvement prevented Gadhafi from seeking exile and instead gave him every incentive to continue fighting. Military historian and foreign-policy analyst Max Boot claimed that the ICC ensured Gadhafi would “fight to the death and take a lot of people down with him.” Washington Post writer Jackson Diehl exclaimed that Libya was mired “in a civil war in large part because of Gaddafi’s international prosecution.” The Globe and Mail columnist Doug Saunders similarly suggested that the ICC backed Gadhafi into a corner. “[T]he ICC may have perpetuated, rather than ended, his crimes,” Saunders wrote. “Col. Gadhafi and his sons and generals do not dare end their campaign of violence if it means spending years in a Dutch cell.”

The light Gaddafi saw at the end of the tunnel he hid in shortly before being killed (Photo: Reuters)

Unfortunately for these commentators, there is little evidence that Gadhafi’s behaviour or decision-making was affected by either the ICC’s investigation or the arrest warrant issued against him, his son (Saif al-Islam Gadhafi), and his intelligence chief (Abdullah al-Senussi). Negotiations were initiated by the African Union in April 2011 and quickly failed – but not once because of the Court. Libya’s National Transitional Council (NTC), which was set up to represent the rebels, outright rejected negotiations that would result in Gadhafi retaining any power. Meanwhile, offers of exile were extended to the Libyan leader on a number of occasions. As late as July 2011, NATO states sought to break the apparent stalemate in the war by seeking a political solution to the crisis and offering Gadhafi exile into a non-ICC member state such as Belarus, Zimbabwe, or Sudan. Gadhafi, however, consistently vowed that he would not leave Libya, reiterating time and again that he would die a “martyr.” Gadhafi’s last will is telling of both efforts to provide him with a safe haven outside of Libya as well as his recalcitrance to such a fate:

Let the free people of the world know that we could have bargained over and sold out our cause in return for a personal secure and stable life. We received many offers to this effect but we chose to be at the vanguard of the confrontation as a badge of duty and honour. Continue reading →

Posted in International Criminal Court (ICC), Libya, Libya and the ICC, The Tripoli Three (Tripoli3) | 4 Comments

Impunity Rules: Libya Passes Controversial Amnesty Law

Posted on May 8, 2012 by Mark Kersten

(Photo: UPI/Mohamaad Hosam)

While haggling between the ICC and Libya’s National Transitional Council (NTC) over the fate of Saif al-Islam Gaddafi and Abdullah al-Senussi continues, Libya quietly, but controversially, passed a blanket amnesty for pro-Revolution rebels.

According to Lawyers for Justice in Libya (LFJL), under ‘Law 38’, amnesty will be granted for any “acts made necessary by the 17 February revolution” and for the revolution’s “success or protection”. Earlier, reports suggested that the amnesty law was being drafted in order to appease Libya’s tribal leaders who presumably fear anti-Gaddafi rebels being held accountable for human rights violations committed during the uprising.

It is no secret that both sides of the conflict committed atrocities. In this context, it is notable that the need for amnesty is in itself an acknowledgement that crimes occurred – otherwise there would be no need for an amnesty in the first place.

Notably, the amnesty law was passed along with ‘Law 37’, which forbids “praising or glorifying Gaddafi, his regime, his ideas or his sons”. Rather precariously, the law claims that Libya is still in a state of war and allows for the imposition of a life sentence on anyone who “harms the state” in glorifying the Gaddafi regime. While, to my knowledge, Western states have remained entirely silent on the subject, LFJL and Amnesty International have harshly condemned the legislation, suggesting that they harken back to the brutal and draconian laws that restricted the freedoms of Libyans under Gaddafi.

But is Libya’s new amnesty law in any way justifiable?

As I have argued before, despite the protestation of some wishful thinking scholars, it isn’t clear that all amnesties are all bad. Louise Mallinder has shown that amnesties can vary along at least three dimensions: what crimes are covered, which groups and individuals the amnesty covers and whether amnesty has attached conditionality or not. In the case of conditional amnesties, the guarantee of immunity is tied to participation in other transitional justice mechanisms, such as testifying at a Truth Commission, as in the case of the South African Truth and Reconciliation Commission. This, in turn may contribute positively to peaceful transitions and to the establishment of the truth.

Nevertheless, granting amnesties for human rights violations aren’t the ideal and shouldn’t be seen as such. But, as Mark Freeman writes in his must-read book on the subject, amnesties may be “necessary evils”. People may be repulsed by impunity but their “repulsion for war and tyranny is greater.” Christine Bell has similarly argued that: “If the choice is between an imperfect peace and a perfect war, imperfect peace may be worth a gamble.” Continue reading →

Posted in Amnesty, International Criminal Court (ICC), Libya, Libya and the ICC | 15 Comments

Guatemala Ratifies the Rome Statute and the “Dos Erres Massacre” Trials Continue

Posted on May 4, 2012 by Mark Kersten

Mariana Rodriguez Pareja and Salvador Herencia Carrasco join JiC again with this fascinating guest-post on Guatemala’s ratification of the Rome Statute and the country’s ongoing legal and political struggles to address the past and achieve justice. 

Guatemala justice

A victim of the Guatemalan Civil War. (Photo: Sandra Sebastian)

Ratification done, implementation next?

On April 2, 2012, the Guatemalan government filed the depository instrument of the Rome Statute before the United Nations, becoming the 121 State Party of the International Criminal Court (ICC). With this ratification, Cuba, El Salvador and Nicaragua are the only Latin American countries that are yet to be a part of the ICC. The good news is that El Salvador has publicly announced its intention to ratify the treaty by the end of the year.

In 2002, the Guatemalan Constitutional Court rendered an Advisory Opinion concluding that the Rome Statute was compatible with the Political Constitution. Since then, objections towards the treaty have been political, rather than legal. With the ratification of the Rome Statute, the long road towards implementation begins. Indeed, we it is important to bear in mind that countries like Bolivia, Ecuador, Mexico and Peru (to name a few) have ratified the treaty many years ago but have yet to fully implement the Rome Statute.

In the case of Guatemala, the importance of this ruling resides in the fact that the Constitutional Court determines that the Rome Statute is a human right treaty which, according to Article 46 of the Constitution, has the highest legal standing, forming part of the bloc de constitutionalité. This means that the Rome Statute and the principles it stands for have Constitutional standing in Guatemala. In a country that is dealing with the prosecution of international crimes perpetrated during its Civil War, principles such as non-statutory limitations, the non-applicability of amnesties or the validity of immunities might contribute in the local judicial proceedings.

Like many Latin American countries, the Guatemalan Criminal Code criminalizes torture and enforced disappearances. These crimes were adopted in 1995 and concern the fight against organized crime, rather than the fulfillment of International Human Rights Law or International Criminal Law. The Criminal Code also has a section on international crimes including genocide, where racial groups are excluded and a generic norm called ‘offenses against duties to humanity’ (deberes contra la humanidad), which seeks to regulate all violations of the Geneva Conventions and International Humanitarian Law.

Guatemala civil war

(Photo: RNW/Flickr)

National Prosecution of Dos Erres Massacre: slowly but surely

On 2 August 2011, a local tribunal in Guatemala City sentenced four former soldiers from an elite unit of the Armed Forces Kaibil to 6006 years each for the massacre of Las Dos Erres. This was welcomed by the victims, their families and the international community and it served to advance the country’s process of recovery and set an important precedent for justice in Guatemala. Continue reading →

Posted in Guatemala, Guest Posts, Human Rights, International Criminal Court (ICC), Justice, Latin America, Rome Statute ratifications | 3 Comments

Playing to Lose: A Game of Hide-and-Seek with Kony

Posted on May 2, 2012 by Mark Kersten
US troops in Obo

US special forces with Uganda troops in Obo, Central African Republic, where they are advising the UPDF in its efforts to hunt Kony. (Photo: Ben Curtis/AP)

In the game of hide-and-seek, having a limited and mutually agreed upon physical space in which both the hider and the seeker participate is essential. When a child plays hide-and-seek with their parents, they don’t move into the next house, run to the grocery store or take a bus to the next town. There is an agreement, implicit or explicit, about where the hider can hide and where the seeker can seek.

Similarly, when authorities or armies – be they domestic or international – “hunt” for suspects, they surmise a particular territory where the suspect may be found. In complex cases, the area may be vast, complicating efforts to detain the wanted suspect but the complexity of the situation itself is taken into account. In short, while we wouldn’t expect a warlord or an international criminal to make it known where they are hiding, the actors “hunting” them down should have an idea of where they could be. As importantly, we wouldn’t expect them to ignore a potential hiding location they know could be used – especially if it has been used it before.

Enter the hunt for Joseph Kony. Readers are likely aware by now that a group of four regional states, Uganda, South Sudan, the Central African Republic (CAR) and the Democratic Republic of Congo (DRC), are in the midst of an African Union sanctioned military operation to hunt down Kony and destroy the LRA. The United States is providing, as it has before, non-violent military and strategic advice and has 100 military “advisors” on the ground (see here and here). While not the direct result of the KONY2012 campaign, the military operation is clearly something the makers of KONY2012, and its supporters, support. However, it is important to note that the predisposition towards military solutions in northern Uganda is an old hat. As Patrick has shown in a chapter on the subject, this is only the latest military operation to crush the LRA.

A key problem plaguing any chance for success is the simple fact that Kony and other key LRA leaders may not be in any of the places that the joint mission has access to. While it is suggested in media reports and statements that Kony is somewhere in the Central African Republic, as far as I can tell, no concrete evidence of this assertion has ever been provided.

Interestingly, the BBC recently reported that the Government of Sudan was supporting the LRA. Apparently a detained LRA rebel was caught wearing a Sudanese military uniform, suggesting it had been provided by Khartoum. But this too is nothing new. While Sudan vehemently denies the allegations, it is an open secret that Khartoum has supported the LRA for years, supplying them with arms, uniforms and other resources. The LRA, in turn, has acted as a proxy force at the behest of the Sudanese government.

During my research in northern Uganda, a former senior LRA rebel commander told me that he had once been instructed to destroy a radio tower in Gulu, northern Uganda. He was commanded to achieve two goals: one, to destroy the tower with newly acquired explosives and two, to retrieve all remnants of the provided bombs. They had been made and given to the LRA, he maintained, by the Government of Sudan.

True, Sudan appears to have broken off relations with the LRA during the mid-2000s as international attention on the conflict was high and the ICC’s investigations were in full-tilt. But it should come as no surprise that Khartoum is again supporting the LRA. The ties run deep and, with a crisis looming between Sudan and South Sudan, the LRA may be, once again, perceived as a useful proxy for Khartoum.

Just as likely is that Kony is hiding somewhere in Darfur. Felix Kulayigye, a spokesman for the Ugandan People’s Defense Force (UPDF) has apparently conceded that Kony is moving into Sudan:

“Kony knows we can’t enter that region, so when the pressure is high in Central Africa he crosses into the Sudanese border [areas].” Continue reading →

Posted in African Union (AU), Central African Republic (CAR), Chad, Democratic Republic of Congo, South Sudan, Sudan, Uganda, United States | Tagged | 2 Comments

Beyond Kony2012: A Free E-Book!

Posted on April 30, 2012 by Patrick Wegner

A major criticism of Invisible Children's KONY2012 campaign was that it was a front for US intervention in Africa. The validity of this and many other criticisms are covered in Beyond KONY2012.

Dear readers,

Patrick, Elke and I wanted to alert you to a fantastic free e-book, Beyond KONY2012, edited by Amanda Taub of Wronging Rights who has put together a stellar cast of contributors, including Laura Seay, Rebecca Hamilton, Alex Little, as well as my friend, and one of the most important thinkers on the subject, Adam Branch.

The book is specifically aimed at those who heard about the LRA conflict for the first time during Invisible Children’s Kony 2012 campaign. It seeks to offer some of the context that the Invisible Children videos neglect and to do so in an accessible way. The book is also suitable for teachers who want to tackle the subject with their students.

Both Patrick and I were honoured to contribute to the book. Patrick’s piece provides an overview of military operations against the LRA and examines whether or not military intervention can stop the LRA. My contribution examines the peace that emerged in northern Uganda from the Juba Peace talks between the LRA and the Government of Uganda.

Here’s a brief overview of the book:

This book is for those who know a little about Joseph Kony and the Lord’s Resistance Army, and want to know more.

Invisible Children’s Kony 2012 has become the most viral video ever. Concerned citizens around the world, from middle school students to celebrities like Oprah and Justin Bieber, watched the film and shared it with their friends. It has now been viewed more than 87 million times.

That success was soon met by a critical backlash. Critics nearly as varied as the campaign’s supporters pointed out that Invisible Children was offering an oversimplified, even misleading narrative. They faulted the campaign for failing to provide a context for the LRA conflict, and pointed out that the video portrayed Africans as either helpless victims, or heartless killers.

This book is both a collection of that criticism, and a constructive response to it. The authors each wrote a short essay offering information that they felt was missing from the video, or explaining how they thought the campaign could be improved.

Needless to say, we encourage you to go and get a copy!

Posted in Activism, Advocacy, Books and Publications, Lord's Resistance Army (LRA), Uganda | Tagged | Leave a comment

Charles Taylor Verdict: Some Thoughts and Controversies

Posted on April 28, 2012 by Mark Kersten
Charles Taylor Liberia

Charles Taylor is the second head of state to be convicted at an international criminal tribunal.

The triumphant and celebratory rhetoric is in full bloom. Many have claimed that the guilty verdict for former Liberian President Charles Taylor was a huge victory, a milestone in the fight against impunity and an unprecedented achievement for international justice and human rights.

To be sure, the Taylor verdict is a significant moment. There is no doubt that he was responsible for terrible atrocities (see here for a backgrounder of the trial) and his imprisonment, likely for the rest of his life, is welcome. Further, Taylor is only the second-ever head of state to be convicted by an international criminal tribunal. The first, Karl Dönitz, was convicted at the Nuremberg Trials. He had been the delegated leader of Nazi Germany after Adolf Hitler had committed suicide and “ruled” the Third Reich for about 20 days.

Nevertheless, the Taylor verdict exposes a number of ongoing challenges and controversies in the practice and pursuit of international criminal justice.

The Verdict

The reading of the verdict, by the Samoan Judge Richard Lussick, was as long as it was rich. In the end, the judges found that Taylor was guilty of “aiding and abetting” the commission of all the 11 charges he faced in Sierra Leone. Aiding and abetting is a rather precarious charge in the context of international armed conflict. As my friend and colleague, Joe Hoover, pointed out: how many world leaders haven’t aided and abetted (directly or indirectly) the commission of international crimes?

Perhaps just important as what Taylor was convicted of is what he wasn’t. The judges rejected the Prosecution’s case that Taylor held direct individual responsibility for any of the charges in the indictment or that he had been involved in a “Joint Criminal Enterprise” to commit war crimes or crimes against humanity. A chorus of rights groups are claiming this is a victory for international justice and Sierra Leone. Indeed, it may be and it is important not to discount that, for many, it matters more that Taylor is locked away rather than what he is locked away for. But this seems like a minimal victory, if not a defeat, for the Prosecution. Kevin Jon Heller, for example, has described the verdict as “a colossal victory for Taylor” and “a stunning rebuke to the prosecution.”

Courtenay Griffiths Charles Taylor

Lead defense counsel for Taylor, Courtenay Griffiths, during proceedings at the Special Court for Sierra Leone

In Defense of the Defense

A few months ago I had the opportunity to meet Taylor’s lead Defense counsel, Courtenay Griffiths. I disagreed with much of what he claimed about the state of international criminal law. But Griffiths spoke eloquently and persuasively about the role of defense lawyers in the project that is international criminal justice.

Regardless of what others may believe, Griffiths trusts in the idea of international criminal justice. He believes, however that it remains fundamentally political, that the politics of international criminal justice aren’t ‘good politics’, and that the justice it produces is far too selective. Critically, he claimed that he sees his role, and presumably that of other defense lawyers, not as undermining the work of tribunals but as making international criminal law work better and move closer to the vision of universal and unbiased justice.

It is perhaps inevitable that international criminal courts and tribunals have a predisposition in favour of prosecutors rather than the Defense. After all, it is the “worst” and “most responsible” international criminals that end up in the dock. But international justice will not, and cannot, be served if international tribunals are set up to do nothing more than convict alleged perpetrators of war crimes, crimes against humanity and genocide. It is not always going to be pretty or comfortable, but the legal defense of people like Taylor is vital to the project of international criminal justice. Defense lawyers, like Griffiths are often vilified for being “the Devil’s advocate”, heartless and immoral. But the reality is that they play an indispensable role in the functioning and progress of international justice.

Charles Taylor's victims

Victims of the conflict in Sierra Leone were often maimed and mutilated. (Photo: Malcolm Linton / Liaison)

Is Justice Delayed, Justice Denied?

Proponents of international criminal justice often exclaim that “justice delayed is justice denied”. Every day that justice isn’t “delivered”, as a result of undue delays, is another day of injustice for victims and survivors.

In this context, it is important to note that the Taylor trial was an arduous and drama-filled affair. When Taylor first arrived at the Court five years ago, he boycotted proceedings. In August 2007, the trial was postponed for almost half a year. The Defense regularly filed motions late which led to additional hearings about whether they were or were not in contempt of court. The Prosecution showcased a ‘star witness’, model Naomi Campbell, ostensibly to bring attention to the trial. A judge left mid-trial to take up a job at the International Court of Justice. The Defense twice walked out on the trial and, earlier this year, the Defense asked to reopen the case. Meanwhile, the SCSL consistently struggled with funding, requiring a number of “bail-outs” from donor states to ensure the trial reached a conclusion. When I visited in 2010, a staff member told me that they had three months of funding left and, if they couldn’t secure more, they would be forced to release Taylor. While it is unlikely that Taylor would actually ever have been released, all of these developments contributed to prolonging the trial. Continue reading →

Posted in Justice, Liberia, Sierra Leone, Special Court for SIerra Leone (SCSL), Transitional Justice | Tagged , , | 1 Comment

The Taylor Case in Context

Posted on April 26, 2012 by Patrick Wegner

Impressions from present day Sierra Leone (Finbarr O'Reilly/Reuters)

Six years after being arrested in his exile in Nigeria former Liberian President Charles Taylor has been convicted on 11 charges of war crimes and crimes against humanity by the Special Court for Sierra Leone (SCSL) today. The court is a hybrid institution set up jointly by the Government of Sierra Leone and the United Nations and is staffed with both international and Sierra Leonean lawyers and judges. Its seat is in Freetown, the capital of Sierra Leone, but the Taylor case was moved to the Hague for security reasons. Because the SCSL was temporarily using the premises of the International Criminal Court (ICC), news media in the past often wrongly reported that Taylor was being tried at the ICC. JiC will post an article on the legal aspects of the case and the verdict this weekend, this post will focus on the context of the Taylor case and what it means for justice in conflicts more broadly.

Charles Taylor was essentially convicted for supporting the Sierra Leonean rebel group Revolutionary United Front (RUF) that killed tens of thousands during Sierra Leones civil war between 1991 and 2002. Charles Taylor received blood diamonds from the RUF for his support which he in turn used for buying arms used to fuel the civil war in the neighbouring state. The Taylor case is not only a historical event because it led to the first conviction of a former head of state in 66 years (the head of state of Nazi Germany became the first head of state to be convicted by an international court or tribunal at the Nuremberg Trials in 1946), it might also have repercussions for how justice will be dispensed in conflict contexts in the future.

Charles Taylor in the SCSL courtroom in the Hague (Reuters)

When the SCSL started investigating Taylors crimes, Liberia had its own civil war at its hands. The Taylor case is thus an early example of international criminal investigations in ongoing conflicts. Indeed, the arrest warrant for President Taylor was made public when he was travelling to Ghana for peace talks, a move that was widely criticised at the time for complicating the peace process in Liberia. Taylor later accepted exile in Nigeria in 2003 under heavy US pressure. He lived there in a seaside villa for three years until the newly elected President of Liberia, Ellen Johnson Sirleaf, demanded his extradition in March 2006. Taylor tried to flee the country but was stopped at the border to Cameroon with significant amounts of cash and heroin.

The Taylor case can be expected to have repercussions for justice in conflicts in two ways. First, Taylor accepted a deal to go into exile in Nigeria in exchange for impunity. That deal eventually unravelled under US pressure and finally led to Charles Taylor’s guilty verdict at an international court. It is clear that Charles Taylor’s crimes were horrendous and that he deserved to face justice for them, but the fact remains that his arrest weakens future security guarantees for leaders of conflict parties that face an international arrest warrant and want to negotiate a way out of their situation. Joseph Kony has reportedly vowed several times that he will not share the fate of Charles Taylor and there are many signs that the ICC warrants against the LRA leaders contributed to the failure of the Juba Peace Talks in 2008. You can trick a warlord into accepting a deal and arrest him later once, but will the trick work in future negotiations? In the long run the international community will not be able to keep the cake and eat it too. Continue reading →

Posted in Crimes against humanity, Exile, Liberia, Lord's Resistance Army (LRA), Peace Negotiations, Peace Processes, Sierra Leone, Special Court for Sierra Leone, Special Court for SIerra Leone (SCSL), War crimes | Tagged , , , , , , , , , | 2 Comments