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.
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
Tuesday, October 14, 2008
FREE FILM!!!!
Blood Diamonds
WHERE: WH-133
WHEN: Wed., Oct. 15 @ 5:00 p.m.
FOOD: Yes! Snacks, at least... and drinks, too! I'll pop popcorn, and if anyone wants to bring non-raw foodstuffs, that's great, too!
Afterwards, we'll have a discussion about some of the best alternatives to diamonds, which should be great for everyone! I'll even have some informational pamphlets to give out.
WHERE: WH-133
WHEN: Wed., Oct. 15 @ 5:00 p.m.
FOOD: Yes! Snacks, at least... and drinks, too! I'll pop popcorn, and if anyone wants to bring non-raw foodstuffs, that's great, too!
Afterwards, we'll have a discussion about some of the best alternatives to diamonds, which should be great for everyone! I'll even have some informational pamphlets to give out.
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