By Mary Elizabeth Grant, VP of International Human Rights Law Society
Several challenges currently facing International Criminal Court (ICC) could undermine its credibility and efficiency for years to come. The court’s first trial opened under a wave of controversy. Issues of disclosure almost led to the release of the court’s first suspect. Concern over protection of witnesses and informants compromised the veracity of the testimony given by the first witness. Political pressure emphasizing a need for peace over justice is undermining the court’s authority as they relate to current proceedings. How the court overcomes the challenges could greatly impact the ICC’s international authority.
In March 2004, The Democratic Republic of Congo (DRC) asked the ICC to investigate war crimes committed in the country since the enactment of the Rome Statute. The court issued warrants against Thomas Lubanga and three other warlords in March 2006. Lubanga was the first suspect charged by the ICC to be apprehended and held in custody at the Hague. Lubanga is charged with recruiting and using children under the age of 15 to fight. Lubanga headed the miltia group, UPC, who raged war against an ethnic group, the Lendu, over gold and mining rights in the Ituri region of DRC. During the five year conflict, 30,000 children were used by all sides in the conflict to pillage, rape, mutilate, and kill civilians. 60,000 people lost their lives during the conflict.
The trial against Lubanga was due to start in June 2008 but was almost derailed when the court ordered Lubanga released because his right to a fair trial had been violated. The prosecutor had obtained evidence from the United Nations and other sources on condition of confidentiality. The court ruled that the prosecutor misapplied Article 54(3)(e) of the Rome Statute regarding disclosure. The court ruled that the error rendered a fair trial impossible. On appeal, the prosecutor agreed to supply the court with the confidential information. (ICC-01/04-01/06-T-94) The prosecutor has been widely criticized for acquiescing. Any promises, whether of confidentiality or protection, to potential sources of information will be viewed with skepticism about the prosecution’s ability to keep its word.
Protection of witnesses and informants is an important issue in determining the effectiveness of the trial. The prosecution plans to call thirty four witnesses. Nineteen of those witnesses will testify behind a screen with their voices distorted in order to protect their anonymity. The first of the witnesses, a former child soldier, testified on January 28. While he testified behind a screen and was hidden from the public gallery, he was visible to the defendant. Witnesses stated that the defendant glared at the witness while he testified. When the witness returned from a break, the witness retracted his testimony. Prosecutors immediately requested a delay in the trial in order to investigate security for witnesses who fear reprisal when they return to DRC. (http://news.bbc.co.uk/2/hi/africa/7857230.stm)
The recent sentence of an ICC informant to seventeen years in jail in Sudan emphasizes the need for protection of witnesses and informants if the ICC does not want its evidence gathering ability compromised. Mohammed Ibrahim was convicted of spying, criminal conspiracy, and passing on confidential military documents to the ICC about Ahmed Haroun, the state minister for humanitarian affairs. (http://jurist.law.pitt.edu/paperchase/2009/01/sudan-man-imprisoned-for-aiding-icc-war.php) The ICC issued an arrest warrant for Haroun in April 2007. He is charged with fifty one counts of war crimes and crimes against humanity. President Bashir, refuses to turn Haroun over to the ICC. In September 2007, he assigned Haroun to lead an investigation in to human rights violations in Darfur.
Lack of political pressure on Sudan has lent force to Bashir’s flagrant disregard for the authority of the ICC. Many African and Arab nations, along with four of five permanent members of the UN Security Council, support suspending the case against Sudan officials in the hope that Bashir will change his policies regarding Darfur. Despite the pressure though, on February 12, 2009, a panel of judges at the ICC decided for the first time to seek detention of a sitting head of state by issuing an arrest warrant for President Bashir. The nature of the charges has not been revealed although the chief prosecutor, Luis Moreno Ocampo, requested the warrant based on evidence that Bashir masterminded crimes against humanity, genocide, and war crimes committed in Darfur. The decision to issue a warrant against Bashir has been conveyed to the United Nations secretary general, Ban Ki-moon, and is expected to be formally announced. The question though is whether the Security Council will decide to exercise its power to suspend the case against Bashir for a year in order to further the peace negotiations. (http://www.nytimes.com/2009/02/12/world/africa/12hague.html?scp=1&sq=icc%20arrest%20warrant%20for%20bashir&st=cse) The dilemma though is that such action could send a message to war criminals and perpetrators of egregious crimes against humanity that justice is negotiable and that they can commit atrocities with impunity. The danger is that such a precedent could send a message that heads of state can completely disregard the ICC as long as they can convince the rest of the world that they have an ‘interest in furthering the peace process.’
The outcome of the current trial will greatly impact the ICC’s role in and its authority for implementing international justice. Internationally there are 250,000 child soldiers, primarily in Chad, DRC, Sudan, Uganda, Burma and Philippines. International attention has been directed towards the increased use of children in armed conflicts. 58 countries recently signed the Paris Principles, promising to prevent the use of child soldiers and to work towards disarming underage fighters. The trial against Lubanga is the first trial in history to focus exclusively on the use of child soldiers as a war crime and it is the first time that victims are being allowed to participate fully in an international trial. In DRC, the trial is being given wide media coverage. 400 people gathered around a giant screen in the Ituri region capital, Bunia, to observe the trial proceedings. Whether the global perception is that justice was served, proceedings were fairly conducted, and witnesses and informants protected will affect the perception of war criminals as to the impunity they can attain from their crimes.
Showing posts with label Mary Grant. Show all posts
Showing posts with label Mary Grant. Show all posts
Friday, February 13, 2009
Tuesday, October 21, 2008
State Sovereignty versus R2P
By Mary Elizabeth Grant, VP of International Human Rights Law Society
Armenian genocide - 1.5 million people killed between 1915 and 1923; Holocaust - 6 million people killed during World War II; Cambodian genocide - 2 million people killed from 1975 to 1979; Rwandan genocide - 800,000 people killed in 90 days in 1994; Bosnian genocide - 200,000 people killed between 1992 and 1995; Darfur genocide - 200,000 to 400,000 people killed between 2003 to date.
“...If humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica -- to gross and systematic violations of human rights that offend every precept of our common humanity? ...Surely no legal principle -- not even sovereignty -- can ever shield crimes against humanity ... Armed intervention must always remain the option of last resort, but in the face of mass murder, it is an option that cannot be relinquished.” We, The Peoples, 2000 Millennium Report by Kofi Annan.
After the horrors of the Holocaust were revealed, the international community appeared to vow, “Never Again”. “Never Again” would the international community allow genocide to occur. Kofi Annan, Speech at
In an attempt to reconcile the issues of intervention versus state sovereignty, the International Commission on Intervention and State Sovereignty (ICISS), a task force of a dozen experts on international law and conflict, published in December, 2001 a 91-page report entitled The Responsibility to Protect. The report proposed that while state sovereignty gives states the right to control their borders and to establish governance over their citizens without interference from the international community, it also creates the responsibility for states to protect their citizens. The report suggested that if a state fails to protect its citizens from atrocities like genocide, ethnic cleansing, crimes against humanity, and war crimes, the international community bears the responsibility to protect the state’s citizens by preventing, reacting, and ultimately rebuilding areas affected by mass suffering.
The responsibility of prevention is based on the theory that genocides and other atrocities are planned. Planning consists of implemented stages, such as classification of citizens into groups--like ethnic or religious groups, promotion of hatred of the targeted group through publicized propaganda, dehumanization of the targeted group, and round up of the targeted group. The stages that lead to these horrors are discernible, thus prevention is possible through intervention, such as the use of negotiations, political pressure, sanctions, and aid that helps a state establish economic development, political stability, and an effective judicial system.
The responsibility to react advocates military intervention when the use preventive measures and reactive techniques, such as negotiations, political pressure, and sanctions, fail. In order to determine if military intervention should be used, six thresholds must be met. (1) There must be just cause in that crimes against humanity that “shock the conscience” are being committed; (2) military intervention must be the last resort after all other nonviolent means of intervention have been exhausted; (3) the level of military intervention must be the least encroachment on state sovereignty as possible; (4) success of the military intervention must be reasonably likely and likely to do more good than harm; (5) military intervention must be used solely to protect citizens and not for the selfish interests of the interveners; (6) military intervention should occur with the authority of the United Nations Security Council or, if not granted, then authority from the General Assembly or a coalition of nations as long as the other thresholds have been met.
The responsibility to rebuild requires the international community to provide, particularly after a military intervention, the state with assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert.
The United Nations publicly adopted the concept of Responsibility to Protect in 2005 at the UN Summit of World Leaders. In 2006, the UN Security Council adopted Resolution 1674, which said: “Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity... The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means... to help to protect populations... In this context, we are prepared to take collective action... should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.” They also agreed that if a state fails to do so, it is then the responsibility of the international community to protect that state’s population.
The international community has strived to implement portions of the R2P doctrine such as peace negotiations to end the genocide in Darfur; however, the genocide continues in
a threat to state sovereignty, in that advocating military intervention will in the long run lead to abuses and trumped-up reasons for invasion of countries.
The responsibility to protect will remain an ideal until the perception that intervention equals abolishment of sovereignty is changed. For this change to occur, clear guidelines must be established that define in detail the circumstances requiring international intervention. Those guidelines must be agreed upon by the international community as the universal standard for action. States must be reassured that only intervention that is backed by the majority of the international community will be advocated. Strong sanctions must be established to punish unilateral intervention. Until similar steps are taken, state sovereignty will prevail over human rights.
Article citing from original R2P report at http://www.iciss.ca/report-en.asp
Sunday, January 27, 2008
Human Rights Violations in Chechnya
Once again thank you to Mary Elizabeth Grant for keeping us up to date on Human Rights situations around the world.
Author: Mary Elizabeth Grant
Editor: Jessie Zaylía
On Behalf of USD School of Law’s International Human Rights Law Society
For the last nine years, Amnesty International, Human Rights Watch, Doctors without Borders, and many other human rights organizations have reported wide spread human rights violations in Chechnya. Russian and Chechen security forces, along with Chechen rebel forces are accused of widespread torture, rape, executions, kidnapping, and forced “disappearances” in Chechnya.
The source of conflict derives from Chechens who want Chechnya to be an independent country while Russia attempts to maintain its control over the territory. The Russians conquered the Chechen territory located in the Caucasus mountain range in 1859. Though Chechens achieved brief independence in the 1920, Russia quickly regained control in 1922. When the Nazis marched into the Chechen region during World War II, the Chechens again attempted to establish independence from Russia. However, when the war ended, Stalin deported Chechens to Siberia for allegedly collaborating with the Nazis. Tens of thousands of Chechens are estimated to have died as a result of deportations.
When the Soviet Union dissolved in 1991, Chechnya once again declared its independence. Responding swiftly and expecting a quick victory, Russia sent troops to Chechnya to force the territory to join the Russian Federation in 1994. While a signed peace agreement between Russia and Chechnya (two years later) gave Chechnya autonomy, it did not grant Chechnya independence. Since then, Russia has attempted to quash rebels by conducting a reign of terror over civilians.
The Chechen government was weak and unable to control the rebel warlords that took over the region. The rebels kidnapped civilians and held them for ransom and also frequently beheaded their captives. Further, the rebels conducted terrorist attacks in other territories; they are accused of exploding two civilian airlines and of bombing a Moscow train.
In an attempt to gain control and to prevent the rebellion from spreading to other territories, the Russian government sponsored a new constitution that provided Chechnya with even greater autonomy. Elections in 2005, suspected of being rigged, resulted in a primarily pro-Moscow parliament. In April, 2007, Vladimir Putin’s protégé, Ramzan Kadyrov, was elected president of Chechnya. Now, Kadyrov’s security forces, in conjunction with Russian armed forces, are accused of widespread human rights violations.
Currently, Kadyrov’s security forces abduct people from their homes without providing any explanations to family members or information regarding where the abductees are being taken. The few who have been released from the security forces’ control report torture and recall deplorable conditions of secret detention centers. Those who have been released or escaped claim they were tortured in order to elicit confessions of providing food and shelter to rebels when they were innocent of those charges.
Overall, an estimated 3,000 to 5,000 people have “disappeared” from Chechnya since 1999. Because many people don’t report the disappearance of relatives for fear of reprisals, arriving at solid figures is difficult because Chechens fear that other family members will be taken. Indeed, many who have sought justice frequently experienced retaliation and, in some cases, have been murdered. The Russian government has been uncooperative in providing resources to help families find the missing.
The Commissioner of Human Rights visited Chechnya in March of 2007. He publicly stated, “The disappearance of a human being is a tragedy, a gross violation of his/her rights. It is also a crime against humanity. This problem must be addressed by the authorities, in order to find the truth, punish the guilty, and preserve the health of society.” [Council of Europe, Initial Conclusions of the visit to the Chechen Republic, March 6, 2007.]
In the last twelve months, the European Court of Human Rights has issued eight rulings in which they found Russia to be responsible for executions, torture, disappearances, and failure to investigate reported crimes in Chechnya. The Court ruled that Russia has violated several articles of the European Convention on Human Rights, specifically Article 2 (right to life), Article 3, (prohibition of torture), Article 5 (right to liberty and security), Article 8 (right to respect for private and family life), Article 13 (right to an effective remedy), and Article 38 (furnish necessary facilities for the examination of the case). The Court has awarded plaintiffs with pecuniary and non pecuniary damages, as well as reimbursement of costs and expenses.
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment of Punishment (CPT) issued its third statement on March 13, 2007, calling on Russia to take action to stop the human rights violations in Chechnya. As the CPT works confidentially with governments of countries to stop violations, the three public statements regarding one country are unprecedented and representative of Russia’s lack of compliance.
The European Court of Human Rights has no authority to force Russia to comply with its rulings. Rather, Russia has sole discretion to follow through with awarding damages to the victims, investigating crimes, and informing families as to the fate of “disappeared” persons. Despite the positive move of the European Court to attempt to provide the victims of crimes in Chechnya with justice, the perpetrators are held unaccountable to date. Such impunity provides a forum for the abuses to continue, which ultimately undermines the social and political fabric of Chechnya and will continue to do so unless the international community applies significant pressure on Russia to take action and end the crimes against humanity.
For cases on this topic, please see: Chitayev and Chiteyev v. Russia. App. No. 59334/00; Baysayeva v. Russia. App. No. 74237/01; Musayev and others v. Russia. App. No. 57941/00, 58699/00, 60403/00; Magomadov and Magomadov v. Russia. App. No. 68004/01; Bitiyeva and X v. Russia. App. No. 57953/00 and 37392/03; Estamirov and Others v. Russia. App. No 60272/00; Imakayeva v. Russia. App. No. 7615/01; Luluyev and Others v. Russia. App. No 69480/01; Khashiyev and Akayeva v. Russia. Nos. 57942/00 and 57945/00; Isayeva v. Russia. App. No. 57950/00; Isayeva, Yusupova, and Bazayeva v. Russia. App. No. 57947/00, 57948/00, 57949/00; Bazorkina v. Russia. App. No 69481/01
Sunday, October 21, 2007
Where is the Justice in the D.R. of Congo?
Mary Elizabeth Grant submitted the following article on the situation in the Democratic Republic of Congo. We thank her for her diligent work.
The Democratic Republic of Congo (DRC) has been the theatre for Africa’s world war and is the continent’s most underreported and arguably worst humanitarian crisis. Unlike Darfur, the international spotlight on Congo has been dim, presumably because there are very few Western interests in Congo, despite the fact that the country is rich in mineral resources such as diamonds, gold, copper, and coltan (used for chips in cell phones and laptops).
After Belgium gave Congo its independence in the 1960s, civil war raged until 1965 when Joseph Mobutu gained control with the help of the United States. The U.S. supported Mobutu because of his stance against the Soviet-supported Angola.
Violence continued in parts of Congo (then known as Zaire), and for the most part, Mobutu controlled the country. However, when the Cold War ended, the U.S. withdrew its support.
Civil war erupted again in 1997 when Laurent Kambila became president. While opponents of Kambila rebelled with support from Uganda and Rwanda, Kambila succeeded in receiving support from Angola, Nambia, and Zimbabwe.
Peace negotiations in 2002 led to the replacement of Zimbabwean, Rwandan, Ugandan, Nambian, and Angolan troops with United Nations troops. In fact, Congo currently has the largest UN force—17,000 troops—on hand with the goal of maintaining peace. However, the UN troops are largely ineffectual as they are intimidated not only by the brutality demonstrated by rebel militias but also by the fact that they are outnumbered in the eastern region of the country.
Much of the warfare in eastern Congo is a continuation of an ethnic conflict originating in Rwanda. Hutu leaders and soldiers, who participated in the 1994 Rwandan genocide, fled to Congo after the Rwandan Tutsis regained control of the government. Rwanda then invaded Congo’s eastern front on several occasions in order to track down the former Hutu leaders.
Battles continue between the FDLR (former Hutu soldiers) and a Congolese army led by General Laurent Nkunda, who claims that he wants to defend the Rwandan Tutsis. For instance, Nkunda has formally petitioned the government to protect the Tutsis so that those who have fled the country may return to Rwanda and live in safety.
Many hoped that the 2006 election of the first democratically-elected president in the DRC, Joseph Kabila, would bring peace. However, conflict and extreme violations of human rights nevertheless persist.
The last seven years of warfare have amounted to some staggering statistics: 4 million people have died from war-related starvation, disease, and injury; 72% of the population is undernourished; death comes to 20% of children under the age of 5; the average life expectancy is age 43; the average annual income per person is less than $250; over 800,000 people have fled their homes; 30,000 children have been forced to fight in the militia (those who refuse have been killed on the spot); girls are commonly kidnapped as sex slaves for the militia; and according to the BBC, 1,200 individuals die daily as a result of the conflict. Also, according to Kevin Watkins and the Human Development Report 2006, the Democratic Republic of Congo is ranked 167th out of 177 countries on the Human Poverty Index.
Rape is widely used as a weapon of war in order to humiliate, degrade, and control not only the victims but also those associated with them. While the exact numbers are not yet known, estimates on the number of rapes in Congo far exceed the ballpark figure of the 50,000 rapes that occurred in Rwanda as a sort of genocide through “ethnic cleansing.” Children as young as age 2 have been raped and brutalized in Congo. Forty percent of rape victims have been held as sex slaves for at least several months on end. Thirty percent of rape victims, including men and boys, have been sexually tortured and mutilated. Their injuries are usually permanent, the least of which include constant incontinence. Another 30% of rape victims are infected with HIV/AIDS.
Moreover, violence and torture associated with rape in Congo is escalating to the point where victims are forcibly blinded, and their ears and lips are cut off so that they can not identify their attackers.
Justice is non existent. Rape, forced child labor, sex trading, sexual slavery, torture, dismemberment, murder, and cannibalism prevail so that citizens live in pervasive terror, and these victims have very little recourse. The Congo militia members are often perpetrators along with rogue and rebel militias roaming the countryside.
Corruption runs the judiciary, and perpetrators often escape punishment. Due to the fact that judges are paid on average only $100 a year, they are highly susceptible to bribery. According to the BBC’s Joseph Winter, in one incident, after bribing a judge, a client asked why he should pay his lawyer. The attorney responded, “… because the other party may have bribed the judge as well and so the case may just be decided on the law.”
So what are the solutions? How will Congo achieve peace when such a rampant and atrocious lack of respect for human life dominates the consciousness? For some ideas, check out the Enough Campaign. Here, you can sign a letter to the President, requesting that he take more decisive action.
Thursday, September 27, 2007
Background on the Current Conflict and Potential Crisis in Myanmar
Mary Grant submitted the following update on the situation in Myanmar. We thank her for her diligent work.
Over the last few decades, the government ofMyanmar Myanmar
Burma
Myanmar
Myanmar Myanmar
Burma has become one of the poorest and most corrupt in Asia . It has the fourth highest inflation level in the world (at 25%), and it is the second largest producer of opium. Their economic growth rate has slowed to 1.5%, and the annual GDP per capita is $1,600. Half of the children under the age of 5 are considered chronically malnourished. Additionally, an estimated 150,000 children under the age of 5 die every year from preventable diseases such as malaria and dysentery.
Myanmar has strong economic ties with China China to Burma China wants positive international publicity (as it approaches the Beijing Olympics), the international community can apply pressure on China to exert its significant influence over Myanmar Myanmar
Over the last few decades, the government of
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