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

Where to With Transitional Justice in Uganda? The Situation After the Extension of the Amnesty Act

Posted on April 22, 2012 by Patrick Wegner

Many northern Ugandans hope LRA fighters will take amnesty and return to undergo traditional reconciliation rituals like Mato Oput shown in the foto (JRP)

Regular readers of this blog are aware that Uganda has both an amnesty law in force since 2000 as well as an International Crimes Division (ICD) at the High Court which is able to try crimes, including war crimes, crimes against humanity and genocide.

The 2000 Amnesty Act is broad, essentially granting ‘blanket amnesty’ for all crimes committed during rebellion if the reporter agrees to renounce armed struggle. Despite the Amnesty Act being in force, the Department of the Public Prosecutor (DPP) in Uganda charged a mid-level commander of the LRA, Thomas Kwoyelo, with crimes against humanity under the Geneva Convention. JiC has reported extensively about the trial in the past, you find all the articles here. Despite several court rulings that Kwoyelo has a legal right to receive amnesty and should be set free, the DPP argued that amnesty is not applicable for crimes against humanity. In violation of these court rulings and due process, Kwoyelo remains in jail at Luzira Prison, Kampala.

The Government of Uganda (GoU) has not taken a clear position concerning the Kwoyelo case and the clash between the blanket amnesty and the existence of a Court Division able to try international crimes. Therefore the upcoming review of the Amnesty Act in May 2012 has been anticipated with uncertainty and curiosity by observers. Will the GoU move away from the past amnesty approach and give in to the DPP that had stated it wanted to bring more charges against former LRA rebels? Or would it uphold the amnesty approach followed since 2000?

Now the Deputy Speaker of the Ugandan Parliament, Jacob Oulanyah, announced on Saturday 14th of April in Gulu that the extension of the Amnesty Act for two years is a done deal and that the law just waits being gazetted. (Thanks to Sharon Nakandha from Avocats sans Frontières Uganda for forwarding the article). This has some important implications for the way forward in transitional justice in Uganda.

It is important to acknowledge that the Amnesty Act was passed with strong civil society pressure from northern Uganda. Many northern Acholi see the LRA rebels as their abducted children and want them to lay down arms and return home. According to a survey conducted by the Justice and Reconciliation Project (JRP) in December 2011 98 per-cent of the northern population believe that the amnesty is still relevant and should not be abolished. Abolishing the amnesty would thus go against the wishes of the formerly war affected population in northern Uganda. President Museveni has no reason to alienate his northern constituency (he received a majority in northern Uganda for the first time in the 2011 elections) by attacking a law that many see as very useful.

Former LRA Commander Thomas Kwoyelo in the courtroom (Edward Echwalu/Reuters)

According to recent figures from the JRP survey, 22,520 rebels have taken amnesty so far – 48 per-cent of them LRA members. Abolishing the amnesty law now would not have revoked those amnesties but, in the context of the ongoing detention of Thomas Kwoyelo, it would surely have stirred fears among LRA returnees. In my interviews with LRA officers in northern Uganda their fears of being tried years after they returned from the bush, be it by the ICC or the ICD, was very tangible. The fact that the amnesty was prolonged is also important for the military efforts to combat the LRA in the DRC, Central African Republic and South Sudan as it ensures that the formerly abducted fighters have a way out. The Amnesty Act can thus contribute to weaken the LRA by luring out fighters from the ‘bush’. Continue reading →

Posted in Amnesty, Kwoyelo Trial, Lord's Resistance Army (LRA), Traditional Justice Mechanisms, Transitional Justice, Uganda | Tagged , , , , , , , , , , , | 4 Comments

Diverging Trajectories: Social Media and #InternationalLaw

Posted on April 19, 2012 by Mark Kersten

This week, Opinio Juris has organized a symposium on social media and international law in the wake of KONY2012. There are already a number of thought-provoking posts up, including this prescient piece by Charli Carpenter (see here too). The following is my contribution to the discussion. Enjoy!

(Cartoon: Firas Al-Atraqchi)

It is widely accepted wisdom that social media is radically transforming how we understand the world and share information. In this context, the emergence of Twitter, Facebook, blogging, etc. challenge the very practice and scholarship of International Law (IL) and International Relations (IR). Yet, IL and IR appear to be moving on a fundamentally divergent trajectory from social media. By bridging these diverging trajectories, however, IR and IL can retain salience in an increasingly interconnected world.

Reducing complexity is central to social media. The viral campaign by Invisible Children, KONY2012, serves as an obvious example. The campaign efficiently, if brutally, simplified the situation in northern Uganda and areas of Central and Eastern Africa afflicted by Joseph Kony and his Lord’s Resistance Army. While widely discredited after a spectacular series of blunders, Invisible Children’s message is simple, fitting within the 140 character limit of a Twitter post. Its Twitter ‘hashtags’ were short and effective, especially “#stopKony”. There wasn’t much more to the campaign – and surely that’s the way Invisible Children wanted it to be.

On the other hand, IL and IR scholarship and practice seek out complexity. More and more academic journals proliferate with increasingly specific subject-areas. The result is the creation of ‘knowledge ghettos’ where complexity is deified and often conflated with accuracy. Consider the recent verdict in the case of former Democratic Republic of Congo rebel, Thomas Lubanga Dyilo, the first-ever verdict by the International Criminal Court. Controversially, Lubanga was charged and convicted to what amounts to a single charge: the use of child soldiers in an armed conflict. Yet, the Lubanga judgement is 624 pages long! Of course, legal judgements have always tended to be lengthy, the ICC judges were tasked with adjudicating on a number of critical and difficult issues, and the verdict may signify more of an exception rather than a trend. But still, 624 pages? As Dov Jacobs pointedly wrote, “international judges have to stop acting as if they are giving a lecture.”

facebook Arab Spring

Social media played a key role in the 'Arab Spring'. The word on the left panel is "al Jazeera" (Photo: Andrew Couts)

Yet the primary effect of social media in the fields of IL and IR is not merely the simplification of complex legal and political issues. Social media is, at its core, about shifts in language, demanding that complexity be communicated in increasingly coherent and concise language while eschewing rigid jargon. Simplification is thus a by-product of social media rather than its purpose. Continue reading →

Posted in Activism, Advocacy, International Law, Social Media | Tagged , , , , | 2 Comments

A New Deal: an ICC “Supervised” Trial for Saif Gaddafi in Libya?

Posted on April 17, 2012 by Mark Kersten
Libya graffiti

Graffiti depictions of Saif al-Islam Gaddafi (right) and his father, former Libyan leader Muammar Gaddafi (Photo: Reuters/Amr Abdallah Dalsh)

The debate on how and where Saif al-Islam Gaddafi, the son of former Libyan leader Muammar Gaddafi, is tried has taken a new and rather unexpected turn. The BBC has reported that a “Western official” told their correspondent that a deal between Libya and the International Criminal Court (ICC) is close to being completed. The agreement would see Saif tried in Libya, but “under ICC supervision”.

The reported deal, which would result in the ICC dropping its demands to try Saif in The Hague, comes just days after the ICC’s Pre-Trial Chamber ruled that Libya was obliged to surrender Saif to the Court immediately. The country’s National Transitional Council (NTC) subsequently decided it would appeal the ruling while simultaneously unveiling plans – and a refurbished courtroom – to begin Saif’s trial within the next few weeks.

The debate on who should try Saif and how, of course, is nothing new. Readers will recall that a number of commentators (including myself) have supported an ICC trial of both Saif and former Libyan intelligence chief, Abdullah al-Senussi, in Libya – a possibility the Rome Statute envisions. However, the BBC report leaves unclear how such an arrangement would work. Kevin Jon Heller raises a number of pressing questions on the subject:

What would the charges be?  Would the ICC impose a de facto complementarity requirement on Libya, conditioning any deal on Libya’s willingness to prosecute Saif for the same crimes against humanity, murder and persecution, based on the same conduct for which the arrest warrant was issued?  Or would the ICC be willing to allow Libya to prosecute Saif for “ordinary” crimes (i.e., not international) based on the same or different conduct as long as the charges were adequately serious?  (An approach to complementarity that I have defended here.)  How, exactly, would the ICC “supervise” the trial?  Are we simply talking some sort of positive complementarity, whereby the Court would provide the Libyan court system with training and the like?  Or would the ICC have the right to insist on specific rules of evidence, due-process guarantees, and so forth?

The answers to these key questions will determine whether any arrangement between the ICC and Libya is a bright idea – for the Court, for Libya, and for justice. Here are a few other questions and thoughts.

Saif al-Islam Gaddafi (Photo: Sergei Karpukhin/Reuters)

If the BBC’s report is accurate, it raises the question as to why the NTC has suddenly decided to cooperate with the ICC and given it a slice of the justice in Libya pie. While it was largely under-reported, an ‘in situ’ ICC trial in Libya was considered and proposed by the Court’s Office of the Prosecutor during negotiations with Libyan authorities. The idea was flatly rejected by the NTC which, while engaging with the Court in an effort to gain approval for a local trial, has been generally unconcerned with pressure exerted by the ICC. Continue reading →

Posted in International Criminal Court (ICC), Justice, Libya, Libya and the ICC, Mauritania | Tagged , | 1 Comment

Defendants on the Run — What’s a Court to do?

Posted on April 16, 2012 by Mark Kersten

Gillian McCall, a London-based researcher in international criminal law, joins JiC with a fascinating guest post on the question of whether trials in absentia are legitimate and legal. Gillian offers a glimpse into how the various international tribunals have treated the question of trials in absentia, concluding that the continuing absence of defendants before tribunals is an issue of politics, not law.

Courtroom chamber at the International Criminal Tribunal or the Former Yugoslavia (ICTY) (Photo: Klaasjanb)

International criminal courts have become famous — or infamous — in some quarters for their perceived inability to quickly capture and try those accused of serious crimes. Ratko Mladić, accused of genocide, spent 16 years on the run before his capture; Radovan Karadžić did so for twelve. At the ICC, Omar al-Bashir remains at large four years after his indictment, and Joseph Kony remains famously out of reach of the Court, over 6 years after being indicted. Why, critics ask, could their trials not have begun while they were on the run? Could trials in absentia be the way to rid international criminal law of unnecessary lengthy delays?

In the UK, the idea of conducting trials in the absence of the accused seems like an assault on the most uncontroversial of liberties. But elsewhere in the world, such trials are a far more common occurrence: one of the world’s newest international criminal tribunals, the UN Special Tribunal for Lebanon, even allows for it explicitly in its statute. This February, days before the seventh anniversary of the assassination of Hariri, the STL announced that the trials of the four accused would go ahead in their absence. Is this a step too far for international courts, or is there good reason to carry on without the accused?

The motive behind the STL’s decision is obvious; delays frustrate justice. Allowing for trials in absentia will either deter the accused from evading the court, forcing the accused to submit to the court to defend themselves; alternatively, it will allow trials to go ahead in the absence of the accused, meaning that justice won’t be frustrated by unnecessary delays in an international system with no police force, reliant on reluctant states to hand over defendants.

The STL is the first international court to allow for trials in absentia since Nuremberg, and even at Nuremberg only one of the top 24 defendants was actually tried in absentia. The STL is unique in many ways, though, and brings the issue of absentia trials into sharp focus.  Although the court is international, the statute is based on Lebanese law, Lebanon being a country which allows for trials in absentia in any event. It is also limited in jurisdiction: unlike other international or hybrid courts whose jurisdiction lasts a number of years with many, many accused, the STL was set up to try one single event, although there are now a series of connected cases. Its defendants, though, have avoided trial for over seven years. The court, in the meantime, has nothing to do, no other cases that it can pursue, and no investigations it can be getting on with. To be left in suspension would be to hemorrhage money — not to mention waste huge amounts of time and effort — for no apparent reason.

But what about the defendants’ rights? At the ICTY, the Blaškić Appeals Chamber stated that:

“…it would not be appropriate to hold in absentia proceedings against persons falling under the primary jurisdiction of the International Tribunal…Indeed, even when the accused has clearly waived his right to be tried in his presence…it would prove extremely difficult or even impossible for an international criminal court to determine the innocence or guilt of that accused”

Special Tribunal for Lebanon

The crater left after the assassination of Lebanese Prime Minister, Rafik Hariri, in 2005 (Photo: AP)

This gets to the crux of the issue; how can a court determine culpability on hearing only half the story? While defence lawyers might be appointed to test the prosecution evidence, this must be a difficult task without instructions from the accused, never mind the impossibility of actively putting forward their individual defence case. The recent ICC judgment on Lubanga has demonstrated the absolute importance of mounting a strong defence, without which the prosecution’s use of false evidence via intermediaries may not have been discovered. A trial without a defence seems to be a process which does not tend towards finding out what happened, or bringing accountability for it. Continue reading →

Posted in European Court of Human Rights, Guest Posts, ICTY, International Criminal Tribunal for Rwanda (ICTR), Lebanon, Special Court for SIerra Leone (SCSL), Special Tribunal for Lebanon, Trials in Absentia | Tagged , | 8 Comments

Wikileaks’ Death Knell for Invisible Children’s KONY2012?

Posted on April 12, 2012 by Mark Kersten
KONY2012 van

(Photo: Micke Kazamowicz at Flickr)

The most remarkable thing about Invisible Children’s KONY2012 campaign is just how spectacularly it has shifted from one controversy to another.

When the film was first released, it was ripped by virtually every scholar and observer of northern Uganda and LRA-affected areas. I have yet to come across a single researcher not affiliated with the project who has not expressed at least some concern at the way Invisible Children has treated the situation facing victims of Joseph Kony and the LRA.

Shortly afterwards, an Invisible Children video campaign from 2006 did the rounds on the Internet. Many people couldn’t watch the whole clip, stating that it was just too painful. It is difficult to describe, but the video might be compared to a colourful, activist-version of a Glee club, Michael Jackson-inspired call to action in northern Uganda. Incredibly, the video features the creators of Invisible Children singing that Uganda needs to “sparkle and shine” and “we’re not qualified”! It concludes with a woman holding up a egg-beater leading a march of American youths chanting “we are going to end a war!”

A few short weeks later, Invisible Children’s director and the star of ‘KONY2012’, Jason ‘Radical’ Russell had a very public mental breakdown in San Diego. His wife was quick to blame criticism of KONY2012 for her husband’s meltdown. Yet, while many ridiculed and sometimes brutally criticized him and Invisible Children in the wake of the breakdown, it was an altogether unfortunate event – for Russell, his family, and for the story. No one should ever wish such a fate on their worst enemy and the issues with ‘KONY2012’ should never have been personal. Furthermore, many observers began believing that the ‘KONY2012’ campaign was wrong because of Russell’s dramatic mental collapse and not because the story Invisible Children was telling was wrong – and dangerous – all along.

Still, Invisible Children pressed on. Last week it released a sequel, entitled ‘Beyond Famous’, which was met with a resounding “meh” from observers. The damage had been done with ‘KONY2012’ and, while ‘Beyond Famous’ did attempt to deal with many of the criticisms levied against Invisible Children, it ignored key issues, particularly the organization’s faithful predilection towards military intervention. But Invisible Children’s public and dramatic fall from grace didn’t stop there.

UPDF

Ugandan troops in Entebbe, Uganda (Photo: Reuters)

This week, perhaps the most damaging of allegations against Invisible Children emerged. According to a Wikileaks cable which had been available online for months but remained unreported, Invisible Children previously provided intelligence to the Government of Uganda’s security services. The details are a bit murky (see here, here and here for more background) but the cable, signed by former US ambassador to Uganda, Steven Browning, alleges that Invisible Children tipped off the Ugandan military as to the location of a Patrick Komakech, who allegedly was involved in the creation of a new anti-Government rebel group, the Peoples’ Patriotic Front (PPF): Continue reading →

Posted in Advocacy, Lord's Resistance Army (LRA), Peace Processes, Uganda | Tagged , , , , | 4 Comments