South Asia’s First War Crimes Criminal Tribunal

Posted on October 11, 2011 by Mark Kersten

JiC is happy to welcome Dawood Ahmed as a guest-poster. Dawood is a Solicitor (non-practicing) and a research associate at the Center on Law and Globalization. In his first post at JiC, Dawood introduces some of the key challenges facing the International Crimes Tribunal of Bangladesh. Enjoy!

Jamaat-e-Islami leader Delwar Hossain Sayadee, center, leaves the International Criminal Tribunal for Bangladesh (Photo: AFP/Getty Images)

As the eyes of the international justice industry focused on Syria and Libya in these past few months, a rather important development in South Asia has remained under-discussed. After much delay, the aptly named International Crimes Tribunal of Bangladesh has this week charged its first suspect, Delwar Hossain Sayadee, with alleged war crimes committed during the country’s 1971 civil war, a conflict that eventually led to the secession from then West Pakistan (present day Pakistan).

For those unfamiliar with the history of Bangladesh, the country existed until 1971 as the eastern flank of Pakistan. During the independence war of that year, widespread inter-ethnic atrocities including rape, murder, arson and torture were carried out against the population of Bangladesh (or East Pakistan at the time); although in most cases, the main protagonist was the West Pakistani army and its ‘Razakar’ allies, it is true that the Mukti Bahini (Bengali liberation fighters) and their Indian supporters too carried out a significant number of atrocities against those of non-Bengali descent. While total estimates of numbers killed range between 26,000 (per Pakistani sources) and 3 million (per Bangladeshi sources), historians now generally agree that what transpired in those nine months of civil war can be labeled as genocide.

The tribunal has been established to try those who committed war crimes during that bloody conflict.

From a policy perspective, the tribunal is of particular interest because it marks a first in two important respects: it is not only the first war crimes tribunal to ever be established in a Muslim majority country but it is also the first such institution in all of South Asia, a region that is home to many under-reported but systematic human rights violations; examples being the Indian army’s suppression of the Kashmiri independence movement, Pakistan’s repression in Baluchistan and Sri Lanka’s human rights violations during its civil war against the LTTE.

Nevertheless, for all of its promise of setting a regional precedent, one must approach the issue of the court with a healthy dose of skepticism.

The initial criticisms leveled against the tribunal are many. First, there is the question of a less than transparent policy reversal: after the 1971 civil war, opportunities did indeed arise for trying those suspected of committing war crimes but these were deliberately forgone in the interests of achieving sovereign recognition and peace: 195 surrendered Pakistani officers were identified as suspected war criminals but were later repatriated to Pakistan without charge as part of a bilateral political compromise (Shimla Agreement) agreed between India and Pakistan. Continue reading →

Posted in Amnesty, Asia, Bangladesh, Human Rights, Justice, War crimes | 2 Comments

Justice and Diamonds in Zimbabwe: Saving Kimberley from Itself

Posted on October 10, 2011 by Mark Kersten

Andrew Jillions joins us again to discuss the Kimberly Process of diamond certification in the context Zimbabwe. As Andrew explains, the case of Zimbabwe risks undermining a process which, for all its faults, remains the best way to prevent the use of diamonds to fuel conflict and human rights abuses.

Zimbabwe Kimberly Process

(Photo: Goran Tomasevic/Reuters)

For all the progress that has been made in enforcing international justice, there’s plenty of work still to do in making sure institutions designed to advance human rights protection actually do so. In this guise, look out for a ‘rolling set of salvos’ to be delivered in the coming weeks against the Kimberley Process by civil society groups. (The Kimberley Process (KP) is a joint initiative by governments, industry and civil society to halt the flow of conflict diamonds, instituting a certification scheme (KPCS) that imposes requirements on its members to enable them to certify shipments of rough diamonds as ‘conflict-free’).

The opening shot was the walk-out of the last meeting in June and the decision to boycott the upcoming plenary meeting. The trigger for this has been the organisation’s approval of the sale of diamonds from Zimbabwe’s Marange region, where there is evidence of widespread and systematic killings and “torture camps” run by the security services. This excellent Panorama documentary provides a harrowing account of this, as well as a depressing picture of the limits of international justice.

Zimbabwe Mugabe

President of Zimbabwe, Robert Mugabe (Photo: Ed Betz/AP)

The current saga goes back to a roundly criticized November 2009 report by the KP’s man in Harare. Despite the evidence to the contrary, it concluded that there had been a ‘visible and verifiable’ improvement in the government’s record of compliance. Revealingly, as far as the KP was concerned, the fact that a review took place at all was occasion to celebrate. The effect of the report was first to allow two auctions of Marange diamonds in August and September 2010, and more recently to unilaterally lift the ban on Marange diamonds, despite opposition from the EU and US. This stamp of legitimacy opened the door to selling Marange diamonds on the open market. And things are moving quickly: the KP has since certified more than $200 million of Marange diamonds, with estimates that the decision will generate something like $334 million over the course of this year. Continue reading →

Posted in Economics of Conflict, Human Rights, Justice, Kimberly Process, Zimbabwe | 2 Comments

No Surprise: Why Libya but not Syria

Posted on October 6, 2011 by Mark Kersten
Syria justice

That the UN Security Council was unable to pass a resolution condemning Syria's crackdown on civilians may be disappointing but, sadly, comes as no surprise (Photo: AFP)

Despite high rhetoric being flung across the Security Council yesterday, Russia and China’s vetoing of the European-drafted resolution condemning Syria’s brutal crackdown on civilians should come as no surprise.

There are a number of political-tuned reasons to explain why this Resolution failed. The first relates to the disappointment and anger expressed by China and Russia at the intervention in Libya. Both have largely been shut out of any post-Gaddafi economic windfall and it is quite clear that they did not want to see a repeat performance. Second, unlike the case of Libya, there is very little regional support for any intervention – legal, military, economic or political – in Syria. In Libya, the Arab League, along with key African states initially stood behind the momentum to stop Gaddafi. Even key Libyan diplomats supported Western intervention. This regional support created an irresistible opportunity to create a new partnership with the Arab League and regional states through a common military and political engagement. This has not been the case in Syria. On the contrary, while Russia’s and China’s vetoing has garnered the most attention, the abstention by Syria’s neighbour, Lebanon (which holds the presidency of the Security Council) was just as illuminating.

Apart from these key differences in the dynamics of the cases of Syria and Libya, there is another, more nuanced issue to consider. Why is it that anyone would, indeed, expect UN Security Council member states to successfully agree to condemn or sanction Syria? The answer seems to me to be that there is a prevalent belief that because it happened in Libya, it was feasible for it to happen in Syria. This, however, relies on seeing Libya as a moment of fundamental change, rather than as an outlier, in the practice of international politics.

The extent of upheaval caused by the ‘Arab Spring’ is beyond doubt. But many (myself included) translated the social and political change in Tunisia, Egypt, Libya, Yemen, Bahrain and so on, into change in the behaviour of the world’s most powerful states. This didn’t appear to be a stretch: the citation of the Responsibility to Protect and the unanimously supported referral of Libya to the ICC were remarkable. Surely, this represented a new dawn in international politics and international justice! Continue reading →

Posted in Bahrain, China, Crimes against humanity, Egypt, Human Rights, International Criminal Court (ICC), Justice, Libya, Libya and the ICC, Russia, Tunisia, UN Security Council, Yemen | Leave a comment

Broadening Horizons: Ecocide, Famine and the “Other” Crimes

Posted on October 4, 2011 by Mark Kersten

If you can’t see it, it can’t and doesn’t really matter that much. That seems to be the attitude of many of us to key issues of international concern. Take for example, a core contradiction in many people’s hesitation to support the adoption of a carbon tax to combat climate change: it’s fine to tax the trash we put out on the curb, but it’s not fine to tax the trash we put in the air.

The state of international criminal law privileges direct forms of violence. This is an extension of the dominant understanding of peace as negative peace, the absence of large-scale, direct forms of violence. The holy trinity of international crimes – war crimes, crimes against humanity and genocide – constitutes physical violence perpetrated against victims.

While the criminalization of some acts which “shock the conscience of humanity” is surely one of the most important developments in contemporary international politics, it has, perhaps inevitably, come at the expense of more structural or indirect forms of violence. Famine becomes something to support with donations and sympathy but not an issue for which anyone can be held responsible. Neglecting to protect vulnerable populations in the wake of environmental disasters becomes a challenge for humanitarian aid rather than an issue of criminal neglect. The real and potential destruction of peoples’ livelihood through environmental degradation becomes a matter of business, job-creation and green politics and not a matter of justice – even when it risks eviscerating entire nations.

Indeed, what about the more silent killers which threaten the life and livelihood of millions of people?

There are those who have begun to challenge the monopoly of international crimes as direct forms of violence. This past week in London, a mock trial was held at the British Supreme Court where top lawyers played out two cases: one concerning the extraction of oil in Canada’s notorious tar sands and one regarding BP’s disastrous oil spill in the Gulf of Mexico. The charge? Ecocide, defined by its most forceful champions, Polly Higgins as:

“The extensive damage, destruction to or loss of ecosystems of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.”

Burma crime against humanity

(Photo: AFP/Getty)

While the notion of ecocide is an attempt to criminalize large-scale environmental degradation, it is critical to highlight, in this context, how environmental degradation can create human death and suffering. This is not to be anthropocentric. But a much under-examined reality within international justice is the indirect, structural violence that is inflicted when states shirk their responsibilities to protect citizens from the effects of environmental trauma – whether from ecocide or natural disasters.

Continue reading →

Posted in al-Shabaab, Burma/Myanmar, Crimes against humanity, Ecocide, Environment, Famine, Human Rights, Justice, North Korea | 4 Comments

Self-Referrals and Lack of Transparency at the ICC – The Case of Northern Uganda

Posted on October 4, 2011 by Patrick Wegner

Press conference during the Rome Conference at which the ICC Statute was adopted

Nobody could know for certain how the International Criminal Court would work in practice when the Rome Statute was adopted in 1998. The first surprise was the speed at which the Statute was ratified by the 60 states necessary for the treaty to enter into force. The required number of states parties was reached already on 11 April 2002. Another surprise was how fast the ICC was confronted with its first cases and the way these cases were referred to the Court. The first three situations in Uganda, the Democratic Republic of Congo and the Central African Republic were so-called self-referrals; they were referred to the Court by the respective states themselves. The Rome Statute is not explicit about the possibility of these self-referrals (see Article 14). The modus operandi for state referrals foreseen in the Rome Statute was rather one of states parties referring cases of other states parties to the court. For a helpful discussion of the legal issues arising from these self-referrals please refer to this article by Payam Akhavan.

The emergence of self-referrals as an unexpected trigger for ICC investigations has led to some problems. This is particularly true as the Chief Prosecutor encouraged these self-referrals to obtain state cooperation. The fact that a state invites the ICC to investigate crimes committed on its own territory might raise questions concerning the ICC’s independence if these investigations are not handled extremely carefully. After all, why should a state invite the ICC to investigate if this entails negative repercussions for the very government which invited the Court? The suspicion that the government in question has cut some kind of deal with the ICC is quite natural for those who do not trust the independence of international institutions. Unfortunately, Uganda is a case in point for the problems that arise from self-referrals.

First of all, the Chief Prosecutor took the unfortunate decision to announce his investigations in Uganda side by side with the Ugandan President, Yoweri Museveni, despite the national army and the government being accused of having committed atrocities during the Lord’s Resistance Army conflict in northern Uganda. This led to immediate doubts about the independence of the ICC among the local population. Many thought that the ICC was indeed a tool for the Government of Uganda to mobilise international support against the LRA. The Chief Prosecutor quickly declared that he is independent in his investigations and would investigate all parties in Uganda, a statement that did not convince the local population.

Uganda's President Museveni took the decision to refer the LRA conflict to the ICC. UN Photo / Mark Garten

The initial mistake of announcing investigations at the side of one of the conflict parties could have been redeemed in the course of the investigations by showing that the ICC is committed to thoroughly investigate both parties. Unfortunately, the Office of the Prosecutor (OTP) has so far largely failed to convincingly demonstrate that it has indeed investigated allegations against the Uganda People’s Defence Forces (UPDF) and the Government of Uganda. To be fair, the situation in northern Uganda is highly complicated and it is not an easy task to carry out independent investigations that satisfy the local population in this context. First of all, some of the most serious atrocities the UPDF is accused of having committed took place in the late 1980s, when the UPDF was still the National Resistance Army (NRA). There were extensive human rights violations in northern Uganda when the NRA moved to the north in pursuit of the remnants of Milton Obote’s army, after taking power in Kampala. Additionally, there were reports of extensive cattle rustling, extrajudicial killings, beatings, rape, torture and some massacres committed against the civilian population that was seen as being supportive of the former army chased out of Kampala by the NRA. The most notorious massacre attributed to NRA forces during that time is the Mukura Massacre during which the NRA allegedly herded civilians into train wagons which they later set on fire. It has taken the ICC a lot of work to explain to the local population that the Rome Statute only allows investigations of crimes committed after July 2002 and that those massacres can thus not be investigated by the ICC (see Mark’s earlier post on this). Continue reading →

Posted in Human Rights, ICC Prosecutor, International Criminal Court (ICC), Justice, Lord's Resistance Army (LRA), Uganda | Tagged , , , | 3 Comments

Handcuffed by Statehood: Justice and Palestine

Posted on October 3, 2011 by Mark Kersten
Palestine statehood

(Photo: AP)

Observers have watched with keen interest as Mahmoud Abbas took the politically risky, some say courageous, move to seek UN recognition of Palestine as a state. At the very center of Abbas’ polarizing decision is the International Criminal Court and the possibility of opening an investigation into alleged crimes in Palestine. To think that the ICC would be so integral a player in the challenge of peace in the Middle East would have been unimaginable just a few short years ago. Just as remarkable is the demonstrated centrality of statehood in the pursuit of global justice, something that surely keeps the dreamers of international criminal justice up at night.

It really wasn’t supposed to go this way. The ICC was meant to be a shining star in the liberal cosmopolitan trajectory which instructed the peoples of the world that no one could hide behind state sovereignty anymore. What mattered in global politics and ethics wasn’t still supposed to be states over all else. Slowly, but surely, the post-WWII global conscience was intended to wither away the rigidity of statehood as the primary unit of international politics and replace it with “the human”. The most important association was no longer supposed to be a state or a territory or religion. These were to be secondary, displaced by a “consciousness of being a citizen of the world, whatever other affiliations we may have.” Citizenship of state was to become secondary to citizenship of a “worldwide community of human beings” who shared a universal ethical code and which represented and protected all those who counted themselves as human. We were to be universal individuals. Rights were ours as individual people but shared by all. These individual rights were to be protected but we were to care about them everywhere. It is out of this liberal cosmopolitan trajectory that we have a human rights regime, a doctrine of Responsibility to Protect and the International Criminal Court. It is in the name of our common, universal citizenship in “humanity” that these institutions and regimes were established.

The Office of the Prosecutor has been busy, no doubt. But after two years, they remain mum on the question of Palestine (Photo: AP Photo/Evert Elzinga)

The ICC, in particular, is an acknowledgement that “cosmopolitan norms of justice accrue to individuals as moral and legal persons in a worldwide civil society,” and the creation of “protections for individuals as human beings.” “[W]hat advocates of the International Criminal Court aspire to, above all, is the creation of a universal moral and judicial community” to replace power politics. Central to the establishment of the Court was the notion that individuals – and not states – are responsible for violations of international humanitarian and human rights law, reflecting a view “that thinking of human rights violations as perpetrated by monolithic and abstract entities called states, and holding only states responsible…stood in the way of human rights enforcement”. As Kirsten Ainley writes, there is a palpable and “increasing focus on the individual, rather than the state, as the key agent in international politics,” the “result of the rise of cosmopolitan liberalism.”

To return to the case of Palestine, what is remarkable is the centrality of statehood, and by extension state sovereignty, in the capacity of Palestinians to pursue international justice. Surely, to many readers this will be unsurprising – the ICC’s Rome Statute, after all, was negotiated by states. Nations only come under the Court’s jurisdiction if they refer themselves, are referred to the Court by the member states of the UN Security Council or ratify the Statute. In other words, the Court continues to privilege statehood, at most marking a negotiation between state politics and the liberal cosmopolitan protection of human rights. However, with the case of Palestine the importance of the state-based power-politics has come only more forcefully into light.

Continue reading →

Posted in Human Rights, International Criminal Court (ICC), Israel, Justice, Middle East, Palestine, Palestine and the ICC, United States | Leave a comment

(Ab)using International Law: Over-Extending the use of Crimes Against Humanity

Posted on October 2, 2011 by Mark Kersten

Abhimanyu George Jain is a graduate of the National Law School of India University (NLSIU), Bangalore, India where he developed a strong interest in public international law. In this post,  Abhimanyu shares with us his thoughts on the expansion of the use of “crimes against humanity” in the context of the Anders Breivik case and the possibility of prosecuting the Pope. 

Should the pope be charged with crimes against humanity?

(Ab)using International Law: Over-Extending the use of Crimes Against Humanity

Exhorting his generals to all sorts of depravities against the people of Poland, Adolf Hitler, once famously said, “who…speaks today of the annihilation of the Armenians?”

Fortunately for us, we live today in a world where we do “speak of the Armenians”. Today we talk in real terms of the possibility and desirability of prescribing and enforcing individual responsibility for the most shocking human acts; we talk of engineering the reunification of shattered societies into organic wholes through transitional justice.

As with any other developing skill and ability, however, familiarity breeds contempt, and contempt, misuse. The misuse I speak of is the inappropriate stretching of the concepts of international criminal law to situations and actions where they have no real role. In particular, I refer to two recent proposals concerning the application of crimes against humanity as defined under the Rome Statute – the first, in the case of Mr. Anders Behring Breivik, the Norwegian militant extremist; the second, in the case of he Vatican, as recently suggested by the Centre for Constitutional Rights (CCR). To be clear from the outset, neither of these proposals has even a reasonable chance of success. They do, however, represent the thoughts and actions of some academics and practitioners, and represent to some extent current understandings of these concepts.

I shall first briefly discuss these proposals, and then explain my grouse against them.

The Proposals

In the case of Mr. Breivik, news reports have suggested that Norwegian prosecutors were contemplating charging him with crimes against humanity for his recent militant actions. For certain obvious reasons, chiefly, the complete inapplicability of the international concept of crimes against humanity, this proposal was abandoned. First, the international concept of crimes against humanity as defined in Art. 7 of the Rome Statute of the ICC requires a ‘widespread or systematic attack’, which these attacks were not. Second, Art. 7 requires the perpetrator to be acting pursuant to an ‘organisational plan or policy’, which again was not the case. For an excellent analysis of this proposal, see William Schabas’ blog post, here.

The third concerns the not particularly novel suggestion that Vatican officials be tried under international criminal law for their role in covering up instances of sexual abuse by Catholic priests. In the latest such attempt, the CCR, acting on behalf of the Survivors’ Network of those Abused by Priests (SNAP), has requested the ICC’s Prosecutor to exercise his propriu motu authority under Art. 15 of the Rome against high-level officials at the Vatican. Again, this does not meet the definitional requirements of crimes against humanity. Post facto concealment, while definitely deplorable, does not meet the requirement of being ‘an attack directed against any civilian population’, ‘pursuant to or in furtherance of a State or organizational policy to commit such attack’. It seems quite clear that there is a definite requirement of overt involvement and control. This very basic objection is supplemented by reasonable questions concerning the authority of the ICC over the Vatican, a non-State entity which is not party to the Rome Statute. For an excellent analysis of the legal infirmities of this move, see Dov Jacobs’ blog post, here.

The Grouse

It might reasonably be asked: so what if it is a stretch? Reasonably, is it such a problem if these concepts are being adopted to the extent that efforts are being made to extend their application to other situations? Doesn’t this in some way represent an incorporation of international legal norms into municipal legal practice and everyday legal concerns, and, to that extent, an internalisation of international law?

Continue reading →

Posted in Crimes against humanity, Human Rights, International Criminal Court (ICC), Justice, Norway, Vatican | 4 Comments

The Fallacy of Sequencing Peace and Justice

Posted on September 30, 2011 by Mark Kersten

Peace before justice? Justice before peace? Chicken before egg? Egg before chicken?

A few weeks ago I spoke with a senior transitional justice researcher and aspiring politician from northern Uganda about the trials (if you excuse the pun) and tribulations of achieving peace and justice in the region. He described sentiments familiar to those who have engaged in the “peace versus justice” debate:

“I don’t see it as a debate. It is common sense that in situations of what we have been experiencing, strategically we should be sequencing these issues, prioritizing and looking at what is best in the short-term and what is best in the long-term. It is very legitimate in any process that we must create an enabling environment that can guarantee justice can be done…If you start asking for justice even before you create that enabling environment, it is not even a debate, it is foolery…We must sequence them.”

I subsequently challenged him on the effectiveness of his argument to which he responded that Argentina was the ideal example of a state which had successfully sequenced peace and justice.

The “sequencing argument” has become a popular feature in the rigid and harshly dichotomous “peace versus justice” debate. The argument is attractive because it represents an attempt to find ground between the polarizing views that there is “no peace without justice” and “there is no justice without peace.” While the sequencing argument is closer to the latter in suggesting that justice may have to follow peace it largely acknowledges that justice is necessary in the long term. Unlike scholars of a realist bent who are sceptical of any attempt to achieve justice in conflict and post-conflict contexts, the point is not to reject accountability and reconciliation but to create an environment in which pursuing justice enforces rather than destabilizes peace.

The sequencing argument is rather nuanced and intuitive. It weaves together the two major strands of thinking on peace: positive peace and negative peace. Negative peace, the cessation of large-scale, direct violence, is required before justice can be pursued. If justice is sought prior to the “silencing of the guns”, then it risks prolonging the conflict. However, once a negative peace is secured, justice should be pursued. Only by identifying and rectifying past wrongs – including human rights abuses – can a more encompassing, positive peace be achieved. In short, the sequencing argument suggests a trajectory of:

violent conflict –> negative peace –> justice and accountability –> positive peace

Ugandan President Yoweri Museveni and former Libyan leader, Muammar Gaddafi. In both Libya and Uganda there has been a debate about whether to sequence justice and peace.

Proponents of the sequencing argument have, however, not thoroughly scrutinized how their theory translates into practice. On the ground, the sequencing argument presumably looks a little like this: in order to achieve a cessation of violence, parties enter inclusive peace negotiations to achieve a power-sharing agreement and peaceful transition. The parties discontinue active conflict while even the most brutal and unsavoury of leaders are guaranteed amnesties as an incentive to cease violent activity. Once stability is assured and the time for accountability is ripe, those amnesties are revoked and the leaders of the conflict are brought to account, ushering in positive peace and justice.

But just how many times could that possibly work? No dictator, tyrant or rebel leader would ever accept an amnesty that he or she believed would subsequently be revoked! It is for this reason that premeditated sequencing has no history in practice – surely something that proponents of sequencing peace and justice should acknowledge. Continue reading →

Posted in Amnesty, Argentina, Human Rights, Justice, Latin America, Peace Negotiations, South America, Transitional Justice, Uganda | 6 Comments

Conflicting Impulses: The Debate on Amnesties in the Case of Uganda’s Thomas Kwoyelo and Beyond

Posted on September 28, 2011 by Mark Kersten

Judges at Uganda's Constitutional Court have ordered Thomas Kwoyelo to be granted amnesty and set free (Photo: Michele Sibolini, AFP)

This past summer, Uganda did something it had never done before: it put a rebel from the notorious Lord’s Resistance Army (LRA) on trial for international crimes. The trial of Thomas Kwoyelo marked yet another fascinating twist in Uganda’s experience of confronting past atrocities. The government’s Directorate of Public Prosecutions alleged that Kwoyelo was guilty of 12 charges of grave breaches of the fourth Geneva Convention and 53 counts of violating Uganda’s penal code. Last week, however, judges deemed prosecuting Kwoyelo unconstitutional and ordered him to be set free.

The primary obstacle to trying any former rebels in Uganda is the state’s Amnesty Law (2000) which was passed with the backing of powerful local northern Ugandan leaders. It effectively guarantees that any individual who either escaped or was captured and subsequently renounced rebellion can be granted reprieve from any prosecution. The trial of Kwoyelo raised, once again, unresolved issues about the use of amnesty laws in societies emerging from violent political conflicts characterized by widespread atrocities.

During three months of research, I had the opportunity to attend much of Kwoyelo’s trial and speak to many of those involved and affected by his case. From its inception, there was always something peculiar and uncomfortably political about the proceedings. The case opened, quite literally, to the tune of a marching band.

While rather clumsy in their approach – much to the chagrin of the presiding judges – Kwoyelo’s defense team argued that prosecuting their client was unconstitutional. Because other former combatants, including some who were senior to Kwoyelo, had been granted amnesty, trying Kwoyelo constituted an infringement of his right to fair treatment and equality before the law. Not being able to decide on the constitutionality of the case, the ICD referred it to the Constitutional Court, which agreed with the defense and ordered Kwoyelo to be granted an amnesty and be released:

“We are satisfied that the applicant has made out a case showing that the Amnesty Commission and the Director of Public Prosecutions have not accorded him equal treatment under the Amnesty Act. He is entitled to a declaration that their acts are inconsistent with Article 21(1) (2) of the Constitution and thus null and void. We so find.

We order that the file be returned to the court, which sent it with a direction that it must cease the trial of the applicant forthwith.”

Kwoyelo speaking with one of his lawyers, Caleb Alaka, a former LRA delegate in the Juba peace negotiations (Photo: Arne Doornebal)

The importance of the Kwoyelo trial, both legally and politically, is rather obvious. Had Uganda successfully tried and convicted Kwoyelo (and they still might), it would have given the government a plank upon which to build a complementarity challenge to the ICC’s jurisdiction, something the government had expressed interest in doing. However, the spectre of a successful trial also instigated fears in northern Uganda. Former senior rebel commanders explained their uneasiness of potentially becoming the Government’s next targets for trial if Kwoyelo was denied amnesty. The instability incurred by revoking thousands of amnesties would be absolutely devastating to a region and people eager to move forward.

Of course, the granting of an amnesty and the defeat of the government’s case against Kwoyelo is equally as controversial. International human rights groups sent representatives to monitor the trial and provide assistance to government lawyers. Predictably, Human Rights Watch argued that amnesties “for crimes such as war crimes and crimes against humanity run counter to international law and practice.” In the wake of the Kwoyelo verdict, Amnesty International released a statement which declared that:

“What we are witnessing here is simply pervasive impunity for serious crimes and human rights violations…Neither Thomas Kwoyelo, nor others accused of committing war crimes should be granted amnesty.”

Human rights groups and fervent human rights advocates and scholars have been engaging in what amounts to talking amnesties out of reality. They claim not only that it is morally and legally wrong to grant amnesties but ominously warn that doing so is to risk ever becoming a functioning, liberal democracy.

Continue reading →

Posted in Uncategorized | Leave a comment

JiC’s 100th Post

Posted on September 26, 2011 by Mark Kersten

Dear readers and friends,

This marks JiC’s 100th post. Looking back, I am still amazed at how far this project, which began with such humble expectations, has come. I hope that you have enjoyed reading our posts as much as we have writing them.

On behalf of Patrick, myself and JiC’s editor, Elke Schwarz, thank you, from the bottom of our hearts and from the top of our minds, for your support and readership.

This is a good opportunity to get some feedback from you, as readers and as the lifeblood of JiC. What would you like to see more of at JiC? Are there issues or angles that we haven’t grappled with that you would like us to in the future? We are always open to constructive criticism and welcome your views. Of course, we take compliments too!

Here’s to a few hundred more!

Mark

Posted in JiC News | 2 Comments