War Crimes Prosecution Watch, Vol. 8, Issue 26 - March 24, 2014

War Crimes Prosecution Watch, Vol.
8, Issue 26 -- March 24, 2014
3/28/14, 12:01 PM
FREDERICK K. COX INTERNATIONAL LAW CENTER
WAR CRIMES PROSECUTION WATCH

Volume 8 - Issue 26 March 24, 2014
EDITOR IN CHIEF Peter Beardsley MANAGING EDITORS Emily Gibbons Madeline Jack SENIOR TECHNICAL EDITOR Morgan Kearse
Founder/Advisor Michael P. Scharf
War Crimes Prosecution Watch is a bi-weekly e-newsletter that compiles official documents and articles from major news sources detailing and analyzing salient issues pertaining to the investigation and prosecution of war crimes throughout the world. To subscribe, please email warcrimeswatch@pilpg.org and type "subscribe" in the subject line.
Opinions expressed in the articles herein represent the views of their authors and are not necessarily those of the War Crimes Prosecution Watch staff, the Case Western Reserve University School of Law or Public International Law & Policy Group.
Contents
INTERNATIONAL CRIMINAL COURT

Central African Republic & Uganda
UN News Centre: UN Probe Set to Investigate Reports of Rights Violations IJMonitor: Prosecutor Asks For More Time to Prepare New Case Against Bemba IJMonitor: Bemba's Co-Accused Narcisse Arido Transferred to the ICC
Democratic Republic of the Congo

ICC Press Release: Germain Katanga Found Guilty of Four Counts of War Crimes and One Count of Crime Against Humanity Committed in Ituri, DRC International Justice Monitor: Germain Katanga Found Guilty by the ICC UPI News: DRC Warlord Katanga Charged with War Crimes at ICC
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War Crimes Prosecution Watch, Vol. 8, Issue 26 -- March 24, 2014
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All Africa: Congo-Kinshasa: ICC Tribunal Finds Katanga Complicit in War Crimes The Huffington Post: Germain Katanga, Congo Warlord, Convicted In War Crimes Trial International Justice Monitor: Katanga Judgment Underlines Need for Stronger ICC Focus on Sexual Violence Live News: DRC/ICC: Katanga Found Guilty of War Crimes and Crimes Against Humanity Institute for War & Peace Reporting: Congolese Rebel's Conviction Only a Qualified Success All Africa: Congo-Kinshasa: DRC Warlord's Conviction a Small Step in the Right Direction
Kenya
Institute for War & Peace Reporting: Kenya Trial: Witness Describes 2007 Campaigning Standard Digital: Kenya: Deputy President William Ruto Fights to Have ICC Witnesses Declared Unreliable The Christian Science Monitor: With Landmark Kenyatta Case in Disarray, ICC Prosecutor has One Last Shot Capital News: ICC Witness Contradicts Her Evidence All Africa: Kenya: CJ Denies Meeting Bensouda All Africa: Kenya: Ruto, Sang ICC Trial Adjourned to March 31 All Africa: Kenya: ICC Seeks Kikuyu Translators All Africa: Kenya: Defence Says Kenyan Broadcaster Called for Rift Valley Peace Standard Digital: Court: Barasa can Now be Arrested and Handed to ICC BBC News: Kenya Court Allows Walter Barasa's ICC Extradition
Cote d'Ivoire (Ivory Coast)

Reuters: Ivory Coast to Send Ble Goude to Face Charges at the ICC
AFRICA
International Criminal Tribunal for Rwanda
Bloomberg: Ex-officer Convicted in France's First Rwandan Genocide Trial AP: Rwandan Doctor Facing Genocide Charges in France
Chad
All Africa: Africa: Weekly Summary - 25 Years in Jail for First Rwandan Genocide Suspect Tried in France
Special Court for Sierra Leone

The Patriotic Vanguard: UNIPSIL's Mission Ends: A Farewell to the Blue Helmets
EUROPE
Court of Bosnia & Herzegovina, War Crimes Chamber Court of Bosnia & Herzegovina:Plea Hearing in the Case v. Nikola Mari! Court of Bosnia & Herzegovina :Appeals Verdict in the Case v. Goran Damjanovi! et al. Sent
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Out Court of Bosnia & Herzegovina :Nikola Mari! Enters a Not Guilty Plea Institute for War and Peace Reporting :Karadzic Prosecution Seeks to Reopen Its Case Balkan Insight : Serbia Calls EU to Help Release Kosovo Serbs Balkan Insight :Serb, Croat Prisoners Starved in Sports Centre Jail Balkan Insight :Bosniak Prisoners Bones Broken at Vogosca Jail Camps Balkan Insight :Bosniak Fighter Accused of Prisoner Abuse Acted Abnormally Balkan Insight : Arkans Tigers Paramilitary Convicted of Killing Croat Couple Balkan Insight :Bosnian Serb Police Chief Wasnt Near Bratunac Massacre Domestic Prosecutions In The Former Yugoslavia Balkan Insight: Croatian Serb Leader Hadzics Acquittal Plea Rejected Balkan Insight: Bosnian Serbs Demand Acquittal Over Mosque Killings Balkan Insight: Witness Recalls School Beatings by Bosnian Croat Fighter Balkan Insight: Bosniak on Trial in Banja Luka for Killing Serb Balkan Insight: Four Bosnian Serbs Convicted of Smoluca Prisoner Abuse
MIDDLE EAST AND ASIA

Extraordinary Chambers in the Courts of Cambodia
The Phnom Penh Post: KRT Grants Consent for Thai Travel The Phnom Penh Post: Japan Tops Up Tribunal
Iraqi High Tribunal Syria Special Tribunal for Lebanon

The Daily Star: STL Releases Annual Report, to Decide on Connected Cases The Daily Star: STL, Bar Association Hold Conference on Tribunal Naharnet: Roux Hopes New Cabinet Cooperates with STL Defense Teams
Bangladesh International Crimes Tribunal

The Daily Star: Defence Questions Witnesses' Credibility
War Crimes Investigations in Burma

Irrawaddy: Quintana Releases Final Report on Burma Human Rights
NORTH AND SOUTH AMERICA

United States
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New York Times: Military Repatriates Algerian Detainee From Guantnamo Bay The Washington Post: Obama Urges Hard Work for Mideast Peace Miami Herald: Guantanamo Prosecutors: How Did KSM 'Propaganda' Document Get Out?
South & Central America

Colombia Colombia Reports: Tensions Flare at Peace Talks Over Military Scandals Haiti The Washington Post: Duvalier Attorney in Haiti Files Appeal
TOPICS
Terrorism
Los Angeles Times: California Man Arrested in Terrorism Case Warned: 'Don't go to L.A.' Daily News Egypt: Grand Mufti Ratifies Execution Verdict for 26 Accused of Terrorism The Washington Post: Florida Man Pleads Guilty to Terrorism Charges
Piracy
The Times of India: Anti-Piracy Warship INS Sumedha Commissioned at Vasco First Post: Counter-Terrorism, Piracy High on Radars of India, Sri Lanka, Maldives The Africa Report: Piracy: Some Safer Shores Global Post: Somalia to seek Japan's help to save young boys from life of piracy
Gender-Based Violence
International Criminal Court: Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, Providing and Update on the ICC-OPT Policy Paper on Sexual and Gender-Based Crimes UN News Centre: Gender-Based Violence in Sub-Saharan Africa Focuses on UN-World Bank Initiative Associated Press: Indian Court Stays Hanging of 2 Rape Case Convicts U.S. Department of State: Launch of Gender-Based Violence Emergency Response and Protection Initiative International Federation of Gynecology and Obstetrics: London Mayor Calls for More Action Against FGM
REPORTS
NGO Reports
Amnesty International: Syria: Squeezing the Lift Out of Yarmouk: War Crimes against Besieged Civilians
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Amnesty International: Sudan: We Can't Endure Any More: The Impact of Inter-Communal Violence on Civilians in Central Darfur
TRUTH AND RECONCILIATION COMMISSIONS

Mali
AllAfrica: Mali Assembly to Discuss Truth Commission
Nepal
eKantipur.com: Government Will Rewrite TRC Bill: Acharya
Sri Lanka
The Times of India: UNHRC Members Under US Pressure on Resolution: Sri Lanka
COMMENTARY AND PERSPECTIVES

EJIL: Talk!: Refining al-Skeini v. UK: The ECtHRs Grand Chamber Hearing in Jaloud v. Netherlands Just Security : Its a Serious Mistake for the US Government to Maintain Its Need to Not Follow Human Rights Law Beyond Its Borders Just Security: Guest Post: Harold Kohs Legal Opinions on the US Position on the Extraterritorial Application of Human Rights Treaties Opinio Juris: Another Terrible Day for the OTP Lawfare: Extraterritoriality and Human Rights: Time for a Change in the U.S. View? Justice in Conflict: Prosecuting Sexual Violence Some Steps Forward, but Still a Long Way to Go Just Security: Guest Post: Koh on Non-Refoulment Communis Hostis Omnium: EU-Mauritius Transfer Agreement at Risk? Justice in Conflict: The Katanga Verdict and its Legacy for International Criminal Justice Justice in Conflict: New Opportunities for Justice in Sri Lanka?
WORTH READING
New Criminal Law Review, Forthcoming: Monetary Compensation as a Remedy for Fair Trial Violations Under International Criminal Law Berkeley Journal of International Law: Never Again? German Chemical Corporation Complicity in the Kurdish Genocide Emory International Law Review: Transitional Justice for Tojos Japan: The United States Role in the Establishment of the International Military Tribunal for the Far East and Other Transitional Justice Mechanisms for Japan after World War II University of Pennsylvania Journal of International Law: International Criminal Law for Retributivists
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INTERNATIONAL CRIMINAL COURT
Central African Republic & Uganda

Official Website of the International Criminal Court ICC Public Documents - Cases: Central African Republic ICC Public Documents - Situation in Uganda
UN Probe Set to Investigate Reports of Rights Violations UN News Centre March 10, 2014 Underscoring the Central African Republic's (CAR) history of coups, violence and impunity, the head of a United Nations inquiry warned today that the spread of hate speech and the collapse of law and order in the strife-riven country are likely precursors to grave human rights violations, including genocide. "We want to present to the [UN] Security Council a complete file so the appropriate action can be taken," said Bernard Acho Muna, who chairs the International Commission of Inquiry tasked with probing reports of human rights violations in the CAR, compiling information, and helping identify the perpetrators of such abuses. The three-person inquiry, established by the Security Council, is expected in the country on Tuesday and will begin gathering evidence amid what UN Emergency Coordinator Valerie Amos recently described as an "extremely grave" situation, after months of inter-religious violence has wrecked State institutions, left millions on the brink of starvation and now threatens to suck in the wider region. Thousands of people are believed to have been killed in the CAR and 2.2 million, about half the population, are in need of humanitarian aid as a result of the conflict, which erupted when Slka rebels launched attacks in December 2012. The fighting has taken on increasingly sectarian overtones as mainly Christian militias known as anti-Balaka (anti-machete) have taken up arms. The UN estimates that some 650,000 have been internally displaced, while nearly 300,000 other have fled to neighbouring countries. At a news briefing in Geneva, Mr. Muna said the spread of propaganda and the collapse of law and order in the CAR could be a precursor to serious human rights violations, including genocide.
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"We would like to talk to the refugees, groups of Muslims or groups of Christians who are running away from violence. They have a story to tell [and] those stories might lead us to be able to give a better picture to the Security Council," he said. He said the investigators have also heard reports of genocide. "I can tell you from my Rwandan experience that there is definitely a question of hate propaganda. I think it is implied in our mandate to see that we don't wait until genocide has been committed and then we call for prosecution," said Mr. Muna, who is a former prosecutor for the International Criminal Tribunal for Rwanda (ICTR). "I think it is in our mandate to see how we can stop any advances towards genocide," he said, but added: "I hope this is only noise and when you put troops on the ground then law and order, it might disappear." The Commission, which also includes Fatimata M'Baye of Mauritania and Jorge Castaeda of Mexico, is expected to submit its initial report to the Security Council within six months. Prosecutor Asks For More Time to Prepare New Case Against Bemba IJMonitor By Wakabi Wairagala March 13, 2014 International Criminal Court (ICC) prosecutor Fatou Bensouda has requested an extension of deadlines for confirmation of charges proceedings against Jean-Pierre Bemba and his four aides, who are acused of forging evidence and bribing witnesses in the ongoing trial of Mr. Bemba. With less than two weeks to the deadline for her to submit the Document Containing Charges (DCC) and the list of evidence, Ms. Bensouda said she needed four more months to assemble evidence that could enable her to enter the confirmation process in a 'trial ready' posture. In a March 5, 2014 filing, the prosecutor said she had not yet accessed most of the items seized from the accused upon their arrest last November. This evidence, she said, most of it in the hands of Dutch and Belgian authorities, was likely to be of high probative value to the case. Last November, Mr. Bemba's lawyers Aim Kilolo-Musamba and Jean-Jacques Mangenda Kabongo were arrested in Belgium and the Netherlands respectively. A Congolese legislator, Fidle Babala Wandu, was arrested in the Democratic Republic of Congo, and defense witness Narcisse Arido in France. Mr. Arido, the only one of the suspects not yet transferred to the ICC detention center, has had his final appeal against extradition to The Hague refused by a French court. The five individuals are accused of forging evidence and bribing witness in the ongoing trial of Mr. Bemba over alleged failure to control his troops ,who allegedly brutalized civilians in the Central African Republic. This trial opened in late 2010 and presentation of oral evidence ended last November. Among items seized from the suspects were their mobile phones, iPads and laptops. As part of the prosecution's investigations, phone conversations and email exchanges between Mr. Bemba and his lawyers, and communications with other individuals were also intercepted.
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In January, the prosecution received information and data concerning Mr. Arido, and unnamed material seized from him and from Mr. Babala. However, the prosecutor said copies of seized electronic items would require time to analyze and further extractions from additional devices were yet to be completed by the court's registry. Ms. Bensouda said following the current schedule for confirmation would require the prosecution to perform a substantial portion of the investigative and analytical work post-confirmation. That would considerably delay the commencement of trial and adversely affect the parties' efficient preparation, she said. She also said it was impossible to tell when Dutch and Belgian authorities would transfer the pending material to the court. During the initial appearance hearings, pre-trial chamber judge Cuno Tarfusser set March 18 as the deadline for submitting the DCC and April 18 for the prosecution's confirmation submissions. The judge would issue the decision on confirmation of charges at the start of May. Nicholas Kaufman, who is representing Mr. Bemba, asked judges to reject the prosecution's application. In a March 11 filing, he said that without a certain indication of when the seized materials would be transferred to the court, the period of extension requested by the prosecutor was merely an estimate. He added that it was hard to understand how the prosecutor could argue that the materials sought could be relevant if she had never seen them. The defense lawyer said a USB stick and iPad belonging to Mr. Wandu, plus Mr. Arido's laptop and access to his Yahoo mail account, were provided to the prosecutor during January and early February. "Although having had more than a month to review the majority of these materials, the prosecutor does not explain why she failed to complete her analysis in the allotted time," said Mr. Kaufman. "As for the other materials seized from Narcisse Arido, no indication is even given as to when the prosecutor expects to obtain access to them." According to Mr. Kaufman, the prosecutor was requesting an extension of deadlines because she did not believe that she had sufficient evidence to make a "substantial" case against Mr. Bemba. As a result, "she will attempt to exploit any extension granted in a vain attempt to 'fish' for evidence to bolster what the defense alleges to be her mistaken suspicions." In her application, the prosecutor said two reports received from the independent counsel who reviewed privileged intercepted conversations "yielded evidence critical to the case." She expected that another report expected from the counsel would produce similarly strong evidence. "The final report, like the two preceding it, will have to be reviewed and the underlying intercepts obtained, analyzed, disclosed and transcribed, as necessary," noted the prosecutor. Meanwhile, she added, a review of Mr. Arido's emails confirmed the presence of evidence material to the charges, but the prosecution needed to compare it with other material which the registry had just released. Ms. Bensouda stated that forensic extraction involved several technical steps as well
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as detailed analysis to insure its integrity and accuracy. She added, however, that technical problems were preventing the verification of mobile phone data. Mr. Kaufman said the prosecutor had sufficient resources to enable her complete the necessary tasks and comply with the set deadlines. Judge Tarfusser is yet to issue a decision on the prosecution's application. Bemba's Co-Accused Narcisse Arido Transferred to the ICC IJMonitor By Wakabi Wairagala March 18, 2014 Congolese national Narcisse Arido, who is accused of participating in witness tampering together with war crimes accused Jean-Pierre Bemba, has today been transferred to the International Criminal Court (ICC) in The Hague. Mr. Arido, who was arrested in France last November, was transferred to the court after a French appellate court rejected his appeal against extradition. He is due to make his initial appearance before an ICC pre-trial judge on Thursday, March 20. Prosecutors claim that Mr. Arido received payments from two of Mr. Bemba's former lawyers to provide false or forged documents and that he was an intermediary in transferring money to witnesses. The lawyers, former lead counsel Aim Kilolo-Musamba and case manager JeanJacques Mangenda Kabongo, have been in custody at the ICC detention center since last November. They face similar charges of corrupting witnesses and presenting forged evidence in Mr. Bemba's war crimes trial that opened in November 2010. Mr. Arido is believed to be 'Witness D04-11!" who was due to testify for the defense in Mr. Bemba's ongoing trial in September 2012 but did not board the flight booked for him to The Hague. Instead, he is said to have misused the visa secured for his appearance before the court to travel to France. A fifth individual facing witness tampering charges is Congolese Member of Parliament Fidle Babala Wandu. He is a former assistant to Mr. Bemba when he was a vice president of the Democratic Republic of Congo. He is in the court's custody. In support of the application for arrest warrants against the suspects, the prosecution submitted evidence of money transfers through international services, telephone call records, transcripts, translations and summaries of recorded communications, text messages, witness statements, and e-mails. On November 20, ICC pre-trial judge Cuno Tarfusser issued an arrest warrant against the five individuals, stating that there were reasonable grounds to believe that since early 2012, a criminal scheme had been "affording benefits and advantages to certain defense witnesses in exchange for false testimony and the presentation of false or forged evidence." At their initial appearances before judge Tarfusser, Mr. Bemba, the two defense lawyers, and Mr. Babala denied the charges and expressed surprise that the prosecutor, Fatou Bensouda, had chosen to secure an arrest warrant rather than deal with the witness tampering allegations during proceedings in Mr. Bemba's
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ongoing trial. When Mr. Arido makes his initial appearance on Thursday, the judge will verify his identity and the language in which he is able to follow the proceedings. He will also be informed of the charges against him.
Democratic Republic of the Congo

Official Website of the International Criminal Court ICC Public Documents - Situation in the Democratic Republic of the Congo
Germain Katanga Found Guilty of Four Counts of War Crimes and One Count of Crime Against Humanity Committed in Ituri, DRC ICC Press Release March 7, 2014 Today, 7 March 2014, Trial Chamber II of the International Criminal Court (ICC), ruling in the majority, with Judge Christine Van den Wyngaert dissenting, rendered its judgment in the case The Prosecutor v. Germain Katanga. The Chamber was satisfied beyond reasonable doubt of Germain Katanga's guilt as an accessory, within the meaning of article 25(3)(d) of the ICC's founding treaty, the Rome Statute, to one crime against humanity (murder) and four war crimes (murder, attacking a civilian population, destruction of property and pillaging) committed on 24 February 2003 during the attack on the village of Bogoro, in the Ituri district of the Democratic Republic of the Congo (DRC). Decisions on sentencing and victim reparations will be rendered later. The Prosecutor and the Defence may appeal the judgment within 30 days. Presiding Judge Bruno Cotte delivered a summary of the judgment at a public hearing today. He explained that in light of the witness testimonies and the evidence presented before the Chamber, it had been established beyond reasonable doubt that Germain Katanga had made a significant contribution to the commission of the crimes by the Ngiti militia, which was acting with a common purpose, by assisting its members to plan the operation against Bogoro. The Chamber found that Germain Katanga acted in the knowledge of the criminal common plan devised by the militia to target the predominantly Hema population of Bogoro. The crimes of murder, attacking civilians, destroying property and pillaging were part of the common plan. The Chamber found that Mr Katanga was the intermediary of choice between the weapons and ammunition suppliers and those who physically committed the crimes using those munitions in Bogoro. He contributed to reinforcing the strike capability of the Ngiti militia who carried out the crimes committed in Bogoro on 24 February 2003. He also contributed, by virtue of his position in Aveba the only place in the collectivit with an airport which could accommodate aircraft transporting weapons to equipping the militia and enabling it to operate in an organised and efficient manner. His involvement allowed the militia to avail itself of logistical means which it did not possess enabling it to secure military
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superiority over its adversary. However, the Chamber dismissed the mode of liability, as principal perpetrator, applied to Germain Katanga, since it was not proven beyond reasonable doubt that in respect of the collectivit he had the material ability to give orders or to ensure their implementation, or that he had the authority to punish camp commanders. The Chamber changed the characterisation of the mode of liability against Mr Katanga who had initially been charged as principal perpetrator on the basis of article 25(3)(d) of the Rome Statute, which defines being an accessory as contributing "[i]n any other way [] to the commission [] of [] a crime by a group of persons acting with a common purpose". Germain Katanga was found guilty, as an accessory within the meaning of article 25(3)(d) of the Rome Statute, of the crimes of murder constituting a crime against humanity and a war crime and the crimes of directing an attack against the civilian population as such or against individual civilians not taking direct part in hostilities, destroying the enemy's property and pillaging constituting war crimes. The Chamber also decided that Germain Katanga shall continue to be detained pending sentencing. The Trial Chamber acquitted Germain Katanga of the other charges that he was facing. With respect to these charges, the Chamber found that there was evidence beyond reasonable doubt that the crimes of rape and sexual slavery were committed. Regarding the crime of using child soldiers, it found that there were children within the Ngiti militia and among the combatants who were in Bogoro on the day of the attack. However, the Chamber concluded that the evidence presented in support of the accused's guilt did not satisfy it beyond reasonable doubt of the accused's responsibility for these crimes. In her dissenting opinion, Judge Van den Wyngaert challenges the change in the characterisation of Germain Katanga's mode of liability. She argues that the change in characterisation rendered the trial unfair and breached the rights of the Defence, as it did not receive proper notification of the new charges and was not afforded a reasonable opportunity to conduct investigations in order to mount a defence against them. Judge Van den Wyngaert maintains that there is no basis in the evidence for findings beyond reasonable doubt which can be relied on to establish Germain Katanga's guilt. Information about the trial Germain Katanga, alleged commander of the Force de rsistance patriotique en Ituri [Patriotic Force of Resistance in Ituri] (FRPI), was tried before Trial Chamber II, composed of Judges Bruno Cotte, Fatoumata Dembele Diarra and Christine Van den Wyngaert, for the crimes against humanity of murder, rape and sexual slavery and the war crimes of wilful killing, directing an attack against a civilian population as such or against individual civilians not taking direct part in hostilities, destruction of property, pillaging, using children under the age of fifteen years to participate actively in hostilities, sexual slavery, and rape. Mr Katanga was transferred to the Detention Centre in The Hague, the Netherlands, on 17 October 2007. The trial commenced on 24 November 2009, and the parties and participants delivered their closing statements from 15 to 23 May 2012. In the course of 265 days of hearings, Trial Chamber II heard 25 witnesses and expert witnesses called by the Prosecution, 28 called by the defence teams for Germain Katanga and Mathieu Ngudjolo Chui (whose case was joined to Mr Katanga's during the trial and severed on 21 November 2012) and
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two called by the legal representatives of the victims. The Chamber also called two further experts to testify. In addition, Germain Katanga also chose to testify under oath as a witness. The judges ensured respect for the rights assured to each of the parties by the Rome Statute, including the right to cross-examine witnesses. Leave was granted to 366 victims to participate in the proceedings, through their legal representatives. They were thus able to present their views on the issues before the Chamber and were authorised to put specific questions to the witnesses. Trial Chamber II issued 409 written orders and decisions and 168 oral decisions. The parties and participants submitted more than 3,300 applications to the Chamber. Germain Katanga Found Guilty by the ICC International Justice Monitor By Jennifer Easterday March 7, 2014 Germain Katanga is the former leader of an armed militia that became known as the Force de Rsistance Patriotique en Ituri (FRPI, Patriotic Resistance Forces in Ituri). He was charged with war crimes and crimes against humanity committed during an attack on Bogoro in the Ituri region of the Democratic Republic of the Congo (DRC). The attack targeted a rival militia, the Union of Congolese Patriotics (UPC), as well as the predominantly Hema civilian population living in Bogoro. Ngiti soldierssome of them childrendescended on the village while most villagers were still sleeping. They proceeded to kill, rape, burn, and pillage, the chamber found. Women who survived the attack were then taken, raped, and used as sexual slaves Ngiti combatants. The trial chamber, by a majority, changed the charges faced by Katanga from "principle" liability to "accessory" liability. On the basis of accessory liability, the majority found Katanga guilty of one crime against humanity (murder) and four war crimes (murder, attacking a civilian population, destruction of property, and pillaging). He was acquitted of charges of using child soldiers, rape, and sexual slavery. The majority concluded that Katanga had made a significant contribution to the crimes committed by the Ngiti militia by collecting and distributing arms and ammunition to local combatants. These arms were then used in the attack on Bogoro. Katanga knew the combatants intended to commit crimes during the attack, the majority found. The majority drew attention to the importance of the firearms in the attack. Katanga furnished weapons to local combatants in large quantities, which allowed the combatants to successfully take Bogoro in a matter of hours, the majority said. "From the outset of the attack, the combatants pursued the inhabitants of the villages with machetes and firearms even though they had no part in the fighting," Presiding Judge Cotte noted.
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The majority found that while Ngiti combatants committed the crimes of using child soldiers in the hostilities, rape, and sexual slavery, there was insufficient evidence to find Katanga guilty of these crimes beyond a reasonable doubt. The judgment will certainly be controversial, especially with one judge strongly dissenting to the change in charges and the majority's conviction. Judge Van den Wyngaert strongly dissented, stating that she would have acquitted Katanga alongside Ngudjolo. The change in charges violates Katanga's fair trial rights, she said. She argued that Katanga had been "mislead" about how his testimony would be used. Changing the Charges Katanga was charged with seven counts of war crimes (using children under the age of fifteen to take active part in hostilities; directing an attack against civilians; willful killing; destruction of property; pillaging; sexual slavery; and rape) and three counts of crimes against humanity (murder, rape, and sexual slavery) allegedly committed during an attack on Bogoro on February 24, 2003. The prosecution did not allege that Katanga physically committed the crimes himself but argued that they were committed by his troops according to a plan hatched by him and his formerly co-accused, Mathieu Ngudjolo, to "wipe out" Bogoro. Katanga pleaded not guilty to all charges. He did not deny that atrocities were committed in Bogoro, but he denied that he commanded the combatants during the attack. However, during his testimony, Katanga spoke about his role as a coordinator in preparing the attack on Bogoro. For all of the crimes, except those involving child soldiers, Katanga was accused of having committed the crimes through "indirect co-perpetration." That is, that he used his militia to carry out the crimes. The majority acquitted Katanga of the crimes on this basis but found him guilty as an accessory. On November 21, 2012, a majority of Trial Chamber II, Judge Christine Van den Wyngaert dissenting, informed the parties that it was considering a recharacterization of the facts of the case concerning the mode of liability applicable to Germain Katanga. The judges have the power to make this change under Regulation 55 of the Regulations of the Court. This regulation allows trial chambers to change how they consider evidence from a legal point of view, even if that is not exactly how the accused was originally charged. The majority decided to change the charges, finding that this did not violate Katanga's fair trial rights. Instead, the majority found that he had an opportunity to conduct additional investigations and amend his case strategy. The trial chamber went to great lengths to ensure a speedy proceeding, Judge Cotte said, and did not violate Katanga's rights to a trial without undue delay. Under this charge, Katanga was found guilty for helping Ngiti combatants, knowing that they intended to commit crimes in Bogoro, even if he did not intend the crimes himself. The decision over the change was hotly contested. Judge Van den Wyngaert strongly dissented to the majority's decision, stating that to change the mode of liability applicable to Katanga at this stage of the trial "fundamentally encroaches
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upon the accused's right to a fair trial." Katanga appealed these changes, but a majority of the appeals chamber, Judge Cuno Tarfusser dissenting, upheld the trial chamber decision. The appeals chamber acknowledged that there was a risk that the trial chamber could violate Katanga's fair trial rights depending on how it conducted additional proceedings. In particular, the appeals chamber majority was concerned about violating Katanga's rights to a trial without undue delay, given the late timing of the trial chamber decision. This issue is sure to arise on appeal of the final judgment. The defense has continuously argued that the change would violate Katanga's fair trial rights. Although the trial chamber granted the defense time to conduct new investigations, it was unable to do so, the defense claimed, due in part to the deteriorating security situation in eastern DRC. If the appeals chamber finds Katanga's fair trial rights were violated by this change, it is possible they would send the case back for another trial. However, this is a fairly novel situation and therefore it is unclear what the likely outcome would be. Impact of the Judgment This judgment marks the first conviction by a credible court for the crimes committed in Bogoro. The recent acquittal of Katanga's formerly co-accused Ngudjolo left many wondering whether anyone would be subject to a criminal conviction for the crimes committed there. Victims now have some answers about who was responsible for the attack on Bogoro. They may also have the opportunity to receive reparations from the ICC's Trust Fund for Victims. However, some commenters have noted that there are serious questions that need to be answered about the impact of the judgments on the fair trial rights of accused at the ICC. In some ways, the decision today reflects ongoing challenges faced by the Office of the Prosecutor (OTP). This judgment follows a string of judgments that have been critical of the OTP's investigation and prosecution strategy. The prosecution failed to prove the crimes as originally charged, and the trial chamber majority used its discretion to change the charges to a mode of liability that led to a conviction on some charges. Judge Van den Wyngaert noted in her dissenting opinion that she was concerned about the quality of the evidence in this case and the facts on the record. Although this decision can be seen as yet another blow to the legacy of the first ten years of the ICC OTP, there are indications that the OTP, now under the direction of Prosecutor Fatou Bensouda, has taken a new direction. In particular, the new strategy and budget indicate that the OTP will strive to improve its investigations. The ICC will need to ensure that its reasoning is clearly explained through robust outreach in Ituri. Because of the confusing change in charges and the conviction on the basis of accessory liability, people from the region will certainly have many questions. Members of civil society have stated that the judgment could have an impact on peace in the regionsome fearing retribution from Katanga's supporters, and others noting that a conviction could foster more peaceful cohttp://publicinternationallawandpolicygroup.org/wp-content/uploads/2014/03/WCPW_032414_Master.html Page 14 of 104
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habitation amongst the Hema and Ngiti. Katanga's trial was initially joined with the trial of Mathieu Ngudjolo Chui, the alleged commander of another militia group, Front des Nationalistes et Intgrationnistes (FNI, National Integration Front). However, the charges were severed in November 2012, six months after the closing arguments, due to proposed changes in the charges against Katanga. The trial chamber later acquitted Ngudjolo, finding that the prosecution had failed to prove a link between Ngudjolo and the FNI militia. DRC Warlord Katanga Charged with War Crimes at ICC UPI News By Associated Press March 7, 2014 The International Criminal Court said Friday a DRC warlord, Germain Katanga, is guilty of one count of crimes against humanity and four counts of war crimes. Katanga, who the ICC said was the "alleged" leader of the Patriotic Force of Resistance in Ituri, was found guilty of crimes committed in a 2003 attack on the village of Bogoro in Ituri province in eastern Democratic Republic of the Congo. "The crimes of murder, attacking civilians, destroying property and pillaging were part of the common plan," for the 2003 assault, the court said in a statement Friday. Known by the alias Simba, the DRC warlord was "beyond reasonable doubt" found to be an accessory to the deaths of at least 200 civilians from the Hema ethnic group. The majority of those killed in the attack were under the age of 18. Amnesty International, which described the 2003 attack as "vicious," said justice was served in the case. "The verdict will provide victims with a measure of some justice and we hope that this will spur the DRC to tackle other cases that have so far escaped justice," Stephanie Barbour, director of Amnesty International's Center for International Justice, said in a statement. The ICC acquitted Katanga of five counts of rape as a weapon of war and for taking direct part in the hostilities. Congo-Kinshasa: ICC Tribunal Finds Katanga Complicit in War Crimes All Africa By Associated Press March 7, 2014 The International Criminal Court has found a Congolese ex-militia boss complicit in war crimes in an attack on a village in the DRC. He was acquitted, however, of charges he used child solders in the incident. The International Criminal Court (ICC) in The Hague, Netherlands on Friday in war crimes in the Democratic Republic of Congo. He was found guilty of charges including murder and pillaging. "The chamber by majority finds Germain Katanga guilty... of complicity in the crimes committed on February 24, 2003," said judge Bruno Cotte.
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The former commander of the ethnic-based Patriotic Resistance forces in Ituri (FRPI) was unanimously found not guilty of charges concerning the use of child soldiers, as well as being an accessory to rape and sexual slavery. Katanga is to remain in the court's custody until he is sentenced at a later date. Friday's verdict is only the ICC's second conviction since it opened more than a decade ago, and the trial is the first to feature sexual violence charges. Deadly village attack The 35-year-old had been charged with ten counts of war crimes and crimes against humanity for his role in the February 2003 attack on the small village of Bogoro. Prosecutors accused the man once known as "Simba" (Lion) and his militia group, made up of the Ngiti and Lendu tribes, of using machine guns, rocket-propelled grenades and machetes on ethnic Hema villagers in an attack that left around 200 people dead. Child soldiers were allegedly used in the attack, and women and girls were later abducted and used as sex slaves, forced to cook and obey orders from FRPI soldiers. Cotte said that if Kantaga had not helped the attackers procure arms, there would not have been as much bloodshed. "Absent that supply of weapons ... commanders would not have been able to carry out the attack with such efficiency," Cotte said. Lengthy trial One of the three judges criticized the verdict, saying the court changed the nature of the charges against Katanga during the trial, thus depriving him of the ability to defend himself. Congo President Joseph Kabila made Katanga a general in his army as part of a policy to combat civil unrest, until government authorities arrested him in 2005. He was transferred to The Hague in 2007. Katanga first went on trial four years ago, along with another militia leader, Mathieu Ngudjolo Chui. Judges split the trials in November 2012, allowing prosecutors more time to gather evidence that Katanga had contributed to the crimes, not that he was central to them as originally charged. Chui was acquitted last year for lack of evidence - the first time the ICC had ever done so. Germain Katanga, Congo Warlord, Convicted In War Crimes Trial The Huffington Post By Thomas Escritt March 7, 2014 Congolese warlord Germain Katanga was convicted on Friday of being an accessory to war crimes including murder and pillage during an attack on a village more than a decade ago, but also cleared of a number of other charges. The trial has been seen as a test of the ability of prosecutors at the International Criminal Court in The Hague, which had handed down only one conviction and
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one acquittal in 12 years, to bring solid cases. Judges found that Katanga had made a significant contribution to a February 2003 attack on the village of Bogoro, in a diamond-rich region of north-east Congo, in particular by procuring guns to speed the massacre of some 200 civilians. "The timing of the attack and the methods used - encircling the village while its inhabitants were still asleep, the use of machetes to attack them, and shooting indiscriminately - led the chamber to find that combatants intended to target the civilian population," said presiding judge Bruno Cotte. Attackers had fired indiscriminately as villagers sought shelter in the bush, Cotte added. "Absent that supply of weapons ... commanders would not have been able to carry out the attack with such efficiency." But the conviction, at the end of a six-year trial, was controversial. In a dissenting opinion, judge Christine van den Wijngaerdt said the decision to convict Katanga as an accessory, when he had originally been charged with playing an essential role in the attack, meant his trial was unfair. Katanga Judgment Underlines Need for Stronger ICC Focus on Sexual Violence International Justice Monitor By Kelly Askin March 10, 2014 The International Criminal Court (ICC) in The Hague has just delivered its third judgment, finding Germain Katanga, a Congolese militia leader, guilty of promoting a brutal attack on civilians in eastern Congo in 2003. For the often-criticized tribunal, the successful completion of another trial marks a welcome step forward, even if in this case, it is something of a partial victory. The trial has been troubled by questions of whether the ICC properly protected Katanga's rights as a defendant one of the three judges decided they had not. And the verdict itself is also troubling in another way. While Katanga was found to be indirectly responsible for the massacre that occurred, he was acquitted of all responsibility for the vicious mass rape that also occurred in the attack on Bogoro village in Ituri province. This is a devastating blow to the victims of sex crimes, and for the survivors of rape and sexual slavery from Bogoro, particularly those who bravely told their horrifying stories to the court in The Hague. While survivors of sexual violence weren't avenged by the judgment, they can still find some solace in the fact that Katanga was convicted and will remain off the streets and behind bars for other non-sexual crimes likely also committed against them. When I began my doctoral dissertation in 1993 on how to prosecute war crimes against women, I often heard doubt expressed that rape was even a war crime. It was regarded as an inevitable consequence of conflict or a mere by-product of war waged by men. Things have changed enormously since then. Rape has been recognized as a war crime, a crime against humanity, and an instrument of genocide in international law. However, with the exception of the Charles Taylor trial at the Special Court for Sierra Leone, most of the international war crimes tribunals have done a poor job of convicting leaders of sex crimes.
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But over a decade of its mandate to end impunity for certain atrocity crimes, the ICC has failed to convict anyone at all of rape, sexual slavery, or other sexual crimes. This must change immediately. While most judges seem to accept that leaders and others can be convicted of crimes such as killings, torture and pillage even when they are far from the crime scenes, there is great reluctance to hold individuals accountable for sex crimes unless they are the physical perpetrators, they were present when crimes were committed, or they can be linked to evidence encouraging the crimes. It's an appalling double standard, and perpetuates the view that rape is a byproduct of war, instead of an instrument of warfare. (It can and usually is both, not just the former.) There is vast and irrefutable evidence that sex crimes are regularly committed during armed conflict as a strategic part of a campaign of terror, destruction, and humiliation. After studying this issue for two decades, I remain convinced that many of the gains we have seen, in the recognition of various forms of sexual violence as serious violations of international laws, are due in no small part to having more women in positions of power as investigators, prosecutors and judges in the international tribunals, as well the impact of an effectively organized caucus of women's groups who have pushed for changes. Despite the gender setback of the court's Katanga ruling, it's encouraging to see evidence that the ICC's prosecutor's office, now led by a woman, Fatou Bensouda of The Gambia, is showing increased commitment to gender justice. Last month, Bensouda's office put out a draft policy paper on sexual and gender based violence, so there is some hope that under her leadership, investigating and prosecuting these crimes will be greatly improved and prioritized. But in the meantime, it's a pity and a shame that international courts have not held many leaders accountable for sex crimes that are so widespread, systematic, and tacitly approved by the leadership. It's a failure of international justice when it comes to holding to account senior leaders and others those most responsible for gender atrocity crimes. DRC/ICC: Katanga Found Guilty of War Crimes and Crimes Against Humanity Live News Amnesty International NZ Press Release/Statement The International Criminal Court has convicted Germain Katanga, a rebel leader from the Democratic Republic of Congo (DRC) for his part in a vicious attack on a village in eastern Congo where civilians were massacred. "The verdict will provide victims with a measure of some justice and we hope that this will spur the DRC to tackle other cases that have so far escaped justice," said Stephanie Barbour, Head of Office, Amnesty International's Centre for International Justice. Katanga was convicted of murder as a crime against humanity, murder as a war crime, deliberately directing an attack on a civilian population, destruction of property as a war crime and pillage as a war crime. However, he was also acquitted of five counts of rape and sexual slavery as a crime against humanity and a war crime and the use of children under the age of
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15 taking direct part in hostilities as a war crime. Congolese Rebel's Conviction Only a Qualified Success Institute for War & Peace Reporting By Stewart McCartney March 11, 2014 Justice experts say the conviction of a former Congolese rebel at the International Criminal Court (ICC) last week highlights challenges that face the court. Germain Katanga was found guilty of committing murder as a war crime and as a crime against humanity for his role in a 2003 attack on the village of Bogoro in the eastern Democratic Republic of Congo (DRC). He was also found guilty of charges of attacking a civilian population, pillage and the destruction of property. But Katanga, a senior member of the Patriotic Forces of Resistance of Ituri (FRPI), was acquitted on other counts including rape, sexual slavery and using child soldiers. Prosecutors also failed to prove that he was a principle perpetrator of the violence in Bogoro. The three-judge panel ruled by a majority of two to one that Katanga bore responsibility for the attack only as a peripheral figure. The nature of last week's conviction derives from a November 2012 decision by ICC to change the charges against Katanga from those which the Office of the Prosecutor (OTP) brought, and which pre-trial judges confirmed in September 2008. In their 2012 decision, the bench invoked a court rule which allows judges to alter the "mode of liability" under which a suspect is charged, based on the evidence that has been presented at trial. The revision also saw Katanga's case severed from that of his co-accused, Mathieu Ngudjolo Chui, who was subsequently acquitted. Judges found that a paramilitary group called the "Ngiti militia" surrounded Bogoro, whose residents were mostly ethnic Hema, in the early hours of February 24, 2003 and attacked it with heavy gunfire as its inhabitants slept. When the militia entered the village, they hunted down surviving Hema residents and murdered them with machetes and firearms. Some victims were mutilated before being killed. The militia later enslaved and raped women whom they caught fleeing the village. According to prosecutors, up to 200 people were killed in Bogoro. In the March 7 judgment, judges ruled that Katanga helped members of the Ngiti militia to plan the attack. and thereby made a significant contribution to the crimes committed. But they concluded that it had not been proven beyond reasonable doubt that
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Katanga held sufficient authority to give orders or to punish commanders. Judges unanimously acquitted the defendant of rape and sexual slavery because they concluded that these crimes were not part of the common purpose of the attack. Katanga was also acquitted of the charge of using child soldiers. Although child soldiers were found to have been used by the Ngiti militia from 2002 onwards, including in the Bogoro attack, judges ruled there was not enough evidence to link them to Katanga. Judge Christine Van den Wyngaert, disagreeing with her two colleagues on the bench, argued in a dissenting opinion issued alongside the judgment that she would have acquitted Katanga because the 2012 decision to re-characterize the charges violated his rights. She said that Katanga's lawyers did not receive proper notification of the new charges and were not given a reasonable opportunity to conduct their own investigations. The judgment was originally expected to be issued in late 2012, but following the judges' decision of November that year, it was delayed by more than a year. Some experts in international criminal law argue that the re-characterization of the charges is a real cause for concern. Dov Jacobs, assistant professor of international law at Leiden university, told IWPR that after the judges altered the charges they essentially "took on the prosecutor's role". "As a result, Katanga was essentially judged by his accusers," Jacobs said. Other commentators say that all in all, the conviction is only a qualified success for the prosecution. Kevin Jon Heller, a professor of criminal law at London's School of Oriental and African Studies (SOAS), pointed out that the Office of the Prosecutor (OTP) was essentially unable to prove any of the charges that it originally brought against Katanga, and which judges confirmed before the start of the trial. "Had the trial chamber not been willing to substitute an uncharged and unconfirmed mode of participation for the charged and confirmed one, Katanga would have simply walked," Heller wrote on his blog. Phil Clark, a close follower of the ICC and an expert in international politics at SOAS, told IWPR that the conviction was only a partial success for the OTP. "[OTP] will be relieved that Katanga unlike his co-accused Mathieu Ngudjolo was convicted, but disappointed that the most serious charges were dismissed," he said. "This finding will be met with disbelief in Ituri, where Katanga is widely considered a key figure in the violence of 2002-03." Clark also expressed concerns over what the judgment said about the ICC as a whole, and suggested that the approach adopted by judges reflected the struggle to secure convictions during the court's earlier years.
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Aside from the acquittal of Ngudjolo Chui, the OTP has failed to get judges to confirm charges against a long list of suspects. In 2011, judges at the ICC ruled that in another case relating to warfare in eastern DRC, there was insufficient evidence to try Callixte Mbarushimana, a senior figure in the Democratic Forces for the Liberation of Rwanda. The following year, judges declined to confirm charges against two senior Kenyan officials. Prosecutors have subsequently dropped charges against a third suspect due to a lack of evidence. In December 2013, they announced that they needed to find further evidence to enable them to put Kenyan president Uhuru Kenyatta on trial, after a succession of witnesses had pulled out. Clark says that past cases of this kind form the context in which Katanga was convicted. "The fundamental concern here is that some ICC judges may feel a need to guide the prosecution by the hand in order to protect the court as a whole, not wanting to see early cases fall apart, which would discredit the entire institution," Clark said. "This raises critical questions about the role of the ICC judges, especially in the early years of the court's work." As well as voicing concerns about the change in liability, campaign groups are frustrated by the failure to convict Katanga for crimes of rape and sexual slavery. Brigid Inder, the executive director of Women's Initiatives for Gender Justice, said the acquittal was "a devastating result" for victims of the attack. "We are extremely disappointed that the judges appeared to expect a different level of proof regarding Katanga's contribution to these crimes than they required to convict him on the basis of his contribution to the crimes of directing an attack against a civilian population, pillaging, murder, and destruction of property, which were committed at the same time as women in the village were being raped," Inder said in a statement. The court will hold a sentencing hearing in due course. Both prosecutors and the defense have 30 days to appeal against the judgment. Congo-Kinshasa: DRC Warlord's Conviction a Small Step in the Right Direction All Africa By Ottilia Anna Maunganidze March 14, 2014 On 7 March 2014, the International Criminal Court (ICC) found former Congolese militia leader Germain Katanga guilty as an accessory to one count of murder as a crime against humanity, and four counts of war crimes (murder, attacking a civilian population, destruction of property and pillaging). The charges relate to offences committed on 24 February 2003 in an attack on the village of Bogoro, in the Ituri district of the Democratic Republic of Congo (DRC). Over 200 people died as a result of the attack. Katanga - infamously known as Simba (meaning 'lion' in Kiswahili) - was found to have acted in the knowledge of the criminal common plan devised by the Ngiti militia to target the predominantly Hema population of Bogoro.
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The court found that Katanga had been the intermediary between the weapons and ammunition suppliers and those who had committed the crimes in Bogoro. This ensured that the militia were able to secure military superiority. It should be noted that Katanga, who was initially charged as a direct coperpetrator, was convicted as an accessory. This finding by the ICC on a lesser mode of liability is significant in that it suggests Katanga was either not as directly involved as initially charged; or that the prosecution was unable to ascertain his guilt as a direct perpetrator. While the court's decision to convict Katanga has been heralded as a triumph of international criminal justice, the ICC acquitted Katanga of other charges relating to sexual crimes and the recruitment of child soldiers. The prosecutor's inability to prove Katanga's guilt speaks to the inherent challenges in investigating and prosecuting sexual crimes. These include high evidentiary requirements, legally and factually insufficient indictments, victims as witnesses and the challenge of holding an accused criminally responsible for the actions of his or her subordinates. While finding that there had been children within the Ngiti militia and among combatants during Bogoro attack, the evidence against Katanga for his role was insufficient. This is not the first time that such a finding has been made with respect to the Bogoro attack. In December 2012, the ICC acquitted Mathieu Ngudjolo Chui, the leader of another implicated militia group (then Katanga's co-accused), of these and other charges due to a lack of evidence. Given the verdict in the Chui case, there were concerns that Katanga might also have been acquitted on all charges. Despite the convictions, the prosecution's inability to sufficiently demonstrate Katanga's guilt for the other crimes brings into question whether justice for those specific crimes will ever be seen. Brigid Inder, Executive Director of Women's Initiatives for Gender Justice, lamented the decision to acquit Katanga on charges of rape and sexual slavery as 'a devastating result for the victims/survivors of the Bogoro attack, as well as other victims of these crimes committed ... in Ituri.' William Pace, the Convenor of the Coalition for the ICC, also expressed concern over the acquittals. According to Pace, it means that 'those responsible for the crimes of rape and using child soldiers, which continue to blight the region, have yet to be brought to justice.' He believes the ICC must increase its outreach to explain the verdict to victims and affected communities. The remaining two cases linked to the DRC conflict relate to crimes committed in the neighbouring Kivu provinces. This makes it important for the DRC to seek ways to bring to justice other perpetrators who were involved in other attacks in Ituri and elsewhere, through domestic legal channels. It is worth noting that the cases prosecuted by the ICC relate only to a small fraction of the international crimes committed in the DRC since 2002. Speaking on behalf of the victims in the Katanga case, legal representative Fidel
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Nista Luvengika said many hope the judgment will contribute to peace and reconciliation. However, it remains concerning that the conflict in the region continues, and that members of Katanga's Force de Rsistance Patriotique en Ituri (FRPI - the Front for Patriotic Resistance in Ituri) are still active. The rebels are said to conduct routine attacks against the local population and frequently clash with the military, resulting in large displacements of people. It can only be hoped that Katanga's conviction serves to deter further crimes, and more importantly, that it encourages domestic prosecutions of other perpetrators. Whether this will happen remains to be seen. The 2012 conviction of militia leader Thomas Lubanga Dyilo brought no dramatic changes in the DRC in terms of criminal justice reforms or in reducing violence. This is despite the fact that in 2011, the Congolese government seemed to be on track to establish specialised mixed courts to prosecute international crimes. Also, in October last year, President Joseph Kabila committed to identifying and prosecuting anyone who organised armed groups. This is particularly important because the ICC, as a court of last resort that complements national jurisdictions, cannot be expected to address impunity on its own. That the ICC has only been able to convict two people confirms this. The ICC can realistically deal with very few cases and only with those perpetrators who are considered to be the most responsible, and who are often in positions of power.
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Kenya
Official Website of the International Criminal Court ICC Public Documents - Situation in the Republic of Kenya
Kenya Trial: Witness Describes 2007 Campaigning Institute for War & Peace Reporting By J.J. Wangul March 7, 2014 A prosecution witness in the trial of Kenya's deputy president told judges this week how leaders of the opposition Orange Democratic Movement (ODM) party gathered support in the run up to the December 2007 presidential election.
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William Ruto is on trial at the International Criminal Court (ICC) alongside a former broadcaster, Joshua Arap Sang, for orchestrating bloodshed that killed more than 1,100 people following the disputed outcome of the 2007 election. More than 3,500 were injured and 600,000 others were forced from their homes by the fighting which quickly took on an ethnic dimension. During the 2007 election, Ruto was deputy leader of the ODM. Sang had a popular radio show on Kass FM. Members of the ethnic Kalenjin community predominantly supported the ODM, while Kikuyus largely voted for the Party of National Unity (PNU) led by the then president, Mwai Kibaki. In court this week, the protected witness known only by the reference number 442 recalled one campaign rally held at the Kipchoge stadium in Kapsabet in the Rift Valley. She said that ODM leader Raila Odinga warned supporters at the rally that the PNU could rig the upcoming polls. "If they dare steal votes, we will see a tsunami," the witness quoted Odinga as telling the crowd. The witness said she had not planned on attending the rally but heard Odinga speaking as she passed the stadium. The witness said that former prime minister Odinga told the crowd to "unite and ensure that one tribe does not rule the country". According to the witness, the ODM's chairman, Henry Kosgey, also spoke at the rally, telling the crowd that if Kikuyus won the election they would "urinate on us". Lara Renton, for the prosecution, asked the witness how the crowd reacted to the pair's remarks. "People cheered when Kosgey said about urinating," she replied. "When Raila also spoke about tsunami, people cheered and were happy." The witness's testimony also covered the period of the 2005 referendum on whether to adopt a new Kenyan constitution. She said Kalenjins rejected the draft constitution because they feared that their land would be taken away and given to Kikuyus. According to the witness, Sang called on listeners to his radio show to vote against the document. "Mr. Sang warned listeners that if the constitution was passed, Kalenjins would lose their land and women would not inherit land," the witness told the court. "He told them to support the Orange side that was against the constitution." Kikuyus are "Our Enemies" Continuing her testimony, the witness also told judges that some time during October 2007, she attended a meeting of Kalenjin councilors in Kapsabet one evening on her way home from work. She said that at the time, the councillors did not have anything to hide regarding the Kikuyus and "they talked openly." The witness said the Kalenjins had started referring to Kikuyus as "wenye
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pembe," a Swahili term meaning "people with horns." The witness mentioned one particular councillor at the gathering, who she referred to as Nyondo, who openly described Kikuyus as "our enemies." "Here amongst us we have enemies," the witness recalled Nyondo as saying. She added that the others present at the meeting said, "You Kikuyus should go and stay with [President] Kibaki." The witness went on to describe events on election day, December 27, 2007. She told judges that when she returned home from voting, she turned on Kass FM and heard Sang telling listeners that the election had been rigged. "Kass FM broadcasted that the poll had been cast and it's good that people guard their ballots before they are stolen. Sang said, 'Guard your votes in whatever way lest they are stolen'," the witness recalled. She said that as the election results filtered through, Sang "was so angry." "Sang was very irritated, he announced with a lot of anger," the witness said. "He said the election had been rigged. He said Kibaki had rigged elections in places like Juja [north of Nairobi]." According to the witness, Sang then told listeners in the Kalenjin language that they should "come out and demand" their rights. Witness Fled Her Home The witness told the court how she and other people from the Kisii ethnic community managed to flee Kapsabet. She escaped with her family on December 30, the day the presidential ballot result was announced. "On that day, I left my home with my children and sought refuge at my Kalenjin friend's house," she said, adding that they subsequently fled into the bush when the owner of the house was threatened with arson. They later managed to get to the police station in Kapsabet. She told judges how they encountered roadblocks manned by armed youths, some wearing ODM colours. At some of the roadblocks, youths had lit huge fires and used large stones to block the roads. The witness described how, in order to identify fellow ODM supporters among the Luo, Luhya and Kalenjin, the young people folded their trousers to the knee on one leg as a sign of support for the party. The witness spoke of how, as they passed through various roadblocks, Kalenjin young people and women hurled insults at them, telling them they would kill them and package them in a container for Kibaki to use as fertiliser on his tea and coffee plantations. Kalenjin women also referred to Kikuyus as "black snakes". The witness said she
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understood this to mean that snakes were the enemies of Kalenjins and deserved to be killed. On reaching Kapsabet police station, the witness said, they found about 4,500 people camping there, the majority Kikuyus. She stayed at the police station for three days. The witness said that some people at the police station had deep machete cuts on their head and some had arrows lodged in their bodies. Defence Challenges Witness Testimony During his cross-examination, Ruto's lawyer David Hooper challenged the witness's understanding of the way in which Odinga had used the word "tsunami" ahead of the elections. According to Hooper, the context in which Odinga used the term meant that the ODM would win the polls with a landslide victory. Hooper read out a newspaper excerpt which reported Odinga's use of the word at a rally. "Raila declared a fresh tsunami is on the way from South Africa towards Kenya, in reference to the ANC party defeat of President Thabo Mbeki by rival Jacob Zuma," Hooper read from the cutting. "Raila asked President Kibaki to read the sign on the wall saying he should be prepared for defeat." "Tsunami, I suggest, that one can see is used in a political sense of an ODM wave. Do you understand? What do you say to this?" Hooper put to the witness. "It is completely different from my thinking," the witness replied, without elaborating. Hooper also challenged an assertion the witness made in her statement to prosecutors that before the election results were announced at the tallying centre in Nairobi, Ruto slapped the then chairman of the electoral commission, Samuel Kivuiti. "Did you really see that?" Hooper asked. The witness said she had seen it on television. "Kivuitu refused to announce the election results and Ruto slapped him and he was removed from there," she said. Following Hooper's cross-examination, Sang's legal team will have an opportunity to question the witness. Kenya: Deputy President William Ruto Fights to Have ICC Witnesses Declared Unreliable Standard Digital By Ally Jamah March 9, 2014 Deputy President William Ruto sustained the pressure to block the compulsory testimony of eight witnesses, accusing the Prosecutor of seeking to force a troubled individual to testify at the ICC.
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Responding to an amended version of ICC Prosecutor Fatou Bensouda's application for the Government to be compelled to surrender the witnesses, Ruto's lawyers sought to portray their testimony as irrelevant. Ruto's lawyer Karim Khan and Kipchumba Kigen-Katwa, representing his coaccused journalist Joshua Sang, challenged the prosecution to disclose evidence showing the witnesses were intimidated or bribed. "If the eight witnesses are hostile there is not at least a good chance that their evidence will be of material assistance to the prosecution's case," the two lawyers argue in a joint filing dated March 5. "It is known that P0015 has emotional and behavioural difficulties. Indeed, he appears to have recanted on at least three different occasions," Ruto's lawyer said. "Given this background, combined with recent developments described in the request (by the Prosecution), it is submitted that this witness's reliability and credibility is irrevocably compromised and he cannot be held out in good faith as a witness of truth," the lawyers contend. The Defence also questions whether "forcing a clearly troubled individual to testify would be in the individual's best psychological interests." Pulled Out They argue the link between the testimony of another witness, P0016, with the unreliable account of P0015 also casts doubts on the probative value of any compelled testimony. Further, the defence lawyers claim the evidence of another witness, P0323, is irrelevant to the charges facing Ruto and Sang since it lacks significance. From the court papers, although observations relating to witness P0323 are redacted, there are suggestions the witness made reference to the Network, an alleged alliance of various groups the prosecution alleges committed atrocities central to the case. "While the list of Network members is stated to be non exhaustive, if Mr Ruto's connection to [REDACTED] were so central to its case that the prosecution needs to summon a witness to testify to that relationship, then at a minimum, [REDACTED] role in the network should have been expressly named," the filing states. The lawyers argue ICC judges can attempt to contact the witnesses again through the ICC's Victim's and Witnesses Unit and convince them to appear voluntarily, instead of compelling Kenyan authorities to surrender them. "The court does not have powers to compel a witness to testify even if that witness is at the door of the court. The only power the court has is to compel a witness who appears before it to answer questions," they said. But Bensouda argues that the court has the power to compel both the witness to appear and the Government to facilitate their appearance in court. Ruto and Sang also have demanded evidence from Bensouda that seven out of the eight witnesses who pulled out from the case were bribed or intimidated.
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They said that the prosecution has made that accusation, but has not made the evidence available to their lawyers yet in violation of the ICC laws and rules. In her submission to the judges sitting in the case against Ruto and Sang', Bensouda claimed that she has evidence "in the case of each of the seven witnesses of intimidation, bribery or improper influence, which has been the cause in their ceasing to cooperate with her office. However, Khan and Kigen, said in their joint reply that the prosecution has violated the rules of the court by not disclosing such evidence. "The Defence is unaware of the evidence. In our submissions, this evidence is disclosable under Article 67(2) of the Rome Statute and Rule 77 of the Rules of Evidence, "they asserted. The seven witnesses are at the centre of a battle between Bensouda and Ruto/Sang, since she wants the court to compel them to testify even if that means forcing the Government to drag them to The Hague. With Landmark Kenyatta Case in Disarray, ICC Prosecutor has One Last Shot The Christian Science Monitor By Mike Pflanz March 11, 2014 In meetings at Kenya's equivalent of the White House late in 2007 and early in 2008, Uhuru Kenyatta, now the president, helped plan the violence that swept the country after its disputed elections. He even transferred millions of dollars to buy weapons. That is, at least, what two men who claimed to be at the meetings told prosecutors at the International Criminal Court (ICC) in statements that formed the meat of the court's charges against Mr. Kenyatta for crimes against humanity. The problem is that both witnesses now say they lied, so they will not testify. Nor are they alone: Several others key witnesses in the Kenyatta trial, the ICC's highest-profile trial ever, have withdrawn evidence. Some have reportedly disappeared. Fatou Bensouda, the ICC's chief prosecutor, says this is because of an "unprecedented intimidation" of witnesses in the Kenyatta case, and of what she claims are bribes and threats not to testify. The loss of the testimony of those two men, Witnesses 4 and 12, significantly increases the likelihood that the Kenyatta case may soon collapse, say analysts who both support and oppose bringing Kenyatta to trial. And that has serious implications for Kenya, they argue, and for what is often termed "international justice" -- in this instance, the relatively recent global effort to prosecute the world's worst crimes. "If this case fails, it will do terrible damage to the court's deterrent effect," says Fergal Gaynor, the Irish lawyer representing the victims of the post-election violence in Kenyatta's trial. "Look at what's going on in South Sudan, in the Central African Republic now is not the time for weakening of such deterrents. It will also send out a message that state obstruction of access to evidence is a viable strategy in closing down
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these cases." Both Kenyatta and his current deputy president, William Ruto, were indicted by the ICC. Mr. Ruto is at his trial at the ICC facilities at The Hague. In December, Ms. Bensouda had to tell the court that she could no longer rely on Witness 12 in the Kenyatta case because he "admitted that he provided false evidence regarding the event at the heart of the prosecution's case." Witness 4 had already been excused. Suddenly losing these testimonies means Bensouda had to concede she is not "currently in a position to present a case" that would prove Kenyatta's alleged guilt. In other words, she has no case. So why have the five crimes against humanity charges that Kenyatta faces not yet been withdrawn? Because Bensouda thinks she has one last shot. For two years, she has been applying for access to Kenyatta's bank accounts, which she says may provide evidence about who paid for parts of the post-election violence. Bensouda knows that trying to crack open the accounts of the Kenyan president, one of Africa's richest men, will be hard. Kenya's attorney-general, Githu Muigai, has said that only a Kenyan court can grant such access, and few here believe any judge would be so bold as to order that. But it would appear to be the prosecution's last chance. Bensouda said recently that without access to Kenyatta's financial records, and without other new evidence, "the prosecution will be required to withdraw the charges." If that happens, it would be "a kind of re-traumatization" for the victims, says Mr. Gaynor. More than 1,100 people were killed and 300,000 forced to flee their homes during the violence, which followed Kenya's disputed 2007 elections. "You have thousands upon thousands of people who were led to believe that they would receive some kind of justice, and now four years later, there will be nothing," Gaynor tells the Monitor. But for those in Kenya who do not support the trials and they are many the collapse of the case is the only fair outcome, and it is a cautionary one. "I was one of many who grasped onto the ICC at the beginning as the only way to find justice," says Ngunjiri Wambugu, a Kenyan political analyst now siding with Kenyatta but formerly opposed to him. "The problem is we have come to see the shortcomings of the process. When -not if -- the case collapses, it must be made clear that the reason is the prosecution's incompetence, in order to force them to do a better job next time." Stephen Lamony, a senior adviser to the Coalition for the International Criminal Court in New York, says the changing narrative of the Kenya cases has lent each twist and turn perhaps too much importance. "There will be a number of factors that feed into any decision by the judges to approve a withdrawal of the charges, but let us not forget that all courts acquit some cases, and convict others," he says. "There should be no difference with these cases. If there is not enough evidence,
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or the witnesses refuse to testify, there is little a court can do but throw the case out." The ICC's judges are currently considering various applications in relation to delays to the Kenyatta case, and no date has yet been set for them to make their decisions, a court spokesman says. ICC Witness Contradicts Her Evidence Capital News By Judie Kaberia March 11, 2014 The 13th prosecution witness in the ICC case against Deputy President William Ruto and journalist Joshua arap Sang on Tuesday changed her testimony over dates in which she listened to Sang's show on Kass FM. The witness in her statement to the prosecution had indicated that she heard Sang incite communities to protest against a stolen election between the end of January and early February 2008, but on Tuesday she said she listened to Kass FM between January 10 and 20 in 2008. "So that it is possible to appreciate that you used to listen to Kass FM, could you pick out a date you said you used to listen to Kass FM in January, February and March. Could you pick a day when you very specifically listened to Lene emet programme? Give us a day in February in 2008," Sang's Defence Counsel Katwa Kigen posed. "I told you it was about 10th, it was not beginning of January and it was not on a day after January 20. Only that I don't remember the exact date but it is between January 10 and January 20 because it was not on 1st, 5th, 6th or 8th and I have not gone back to the end of January as I did not listen again," the witness responded. The witness had told the court that she heard Sang using derogatory words to urge Kalenjins to fight. "You said it was around end of January to around early February in 2008 when you listened to Kass FM, are you saying that was inaccurate? You said it was either end of January or early February," Kigen insisted. "It is true," the witness replied. The witness who seemed to get agitated with Kigen's questions responded; "I think you are asking me two questions which are not coming to my mind, I don't understand which question you want me to answer because you are giving many dates. Which answer do you want me to give you?" the witness asked Kigen. In reference to the earlier evidence by the witness, Kigen asked her: "You were asked (by the prosecution) to put a time frame to what you heard Sang saying and the question was, 'can you recall what time of the year you heard Sang talking?', you said towards the end of January or early January if I am not mistaken'." Kigen further played clips in which the court heard that Sang used to co-host his show with one arap Tanui, contrary to claims by the witness who told the court that Sang hosted the show alone. The witness also had told the court that Kass FM show was broadcast only in
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Kalenjin though when he was asked the question last Friday, she was unclear since she told Kigen that the question should have instead been directed to Sang. Kigen played several other clips, one of them being a clip from the BBC in which former US Ambassador Michael Ranneberger was said to have been hosted by Sang on January 24, 2008 at Kass FM. Kenya: CJ Denies Meeting Bensouda All Africa By Nzau Musau March 11, 2014 The Judiciary has denounced reports that Chief Justice Willy Mutunga met ICC Chief Prosecutor Fatou Bensouda a fortnight ago. A statement from Mutunga's office said the CJ only traveled to the Hague for a conference of the Justice Leaders Initiative (JLI) which brings together CJ's, justice ministers and Attorney Generals from various countries. On Saturday, the Star reported that Mutunga may have met Bensouda after judiciary refused to confirm or deny the Hague meeting. The JLI meeting according to the statement took place at the Hague on February 27. The Hague is the seat of the ICC and Bensouda is also a former Attorney General and Justice minister of the Gambia. "He did not meet the ICC Chief Prosecutor by arrangement or happenstance," Mutunga's statement forwarded to newsrooms by Kwamchetsi Makokha said. No statement came from the CJ office prior to the trip or while on it. The CJ had traveled alone. Last June, judiciary informed Kenyans that Mutunga had been invited by US president Barrack Obama for a meeting in Dakar, Senegal. The statement explained that the CJ had elected to keep his foreign travels simple and minimalist after minding the burden imposed on taxpayers by unnecessarily large official delegations. "While abroad, the Chief Justice, as head of the Judiciary and a ranking government official, relies on the assistance of Kenya's missions in the countries he visits whenever necessary," the statement said. An inquiry lodged with the Office of the Prosecutor of the ICC last Friday on possibility of Mutunga meeting the Bensouda had not been responded to by last evening. The court is normally fast in responding to media inquiries and correcting media reports. Judiciary's director of public affairs and communications Naim Bilal did not appear to know about the trip last Friday when reached out. He said he had been away on leave and had just returned to work. As the head of judiciary, chair of Judicial Service Commission and President of the Supreme Court, Mutunga is a co-equal of President Uhuru Kenyatta, head of executive and the two speakers of parliament- Justin Muturi (National Assembly) and Ekwe Ethuro (Senate). In the statement, Mutunga asked media to guard its freedom through responsible reporting. He said he remains committed to freedom of the media
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but demanded professionalism of media practitioners. "The Chief Justice reiterates his commitment to the freedom of the media. He strongly believes that the media have a responsibility to protect their own freedom by conducting themselves professionally and eschewing actions that would make them legally vulnerable," he said. Kenya: Ruto, Sang ICC Trial Adjourned to March 31 All Africa By Judie Kaberia March 13, 2014 The International Criminal Court (ICC) trial against Deputy President William Ruto and Joshua arap Sang has adjourned its sittings to March 31, 2014. Once the session resumes, it will run until April 16 before the court takes the Easter break. Prosecution witness 28 who needs a month to testify, will appear after the Easter break. Deputy President William Ruto will be required to be physically present in court during the four-week testimony of P028. On Tuesday, the 13th witness P0442 who completed giving her evidence to the court alleged that she heard Sang use derogatory words to incite Kalenjins to fight. During cross-examination, Sang's lawyer Katwa Kigen challenged her to explain the specific period in which she heard Sang inciting Kalenjins. The witness however gave contradictory remarks since she told the court that she listened to Kass FM between January 10 to January 20 in 2008 yet she had alleged that she heard Sang inciting people between end of January 2008 to beginning of February 2008. The witness on several occasions failed to respond to Kigen's enquiries and instead questioned Kigen, prompting Presiding Judge Chile Eboe-Osuji to intervene. According to the Document Containing Charges (DCC) released on August 1, 2011, Ruto and Sang allegedly planned attacks in the Rift Valley during the 2007-8 post election violence. It is alleged that Ruto and Sang, as early as 2006 to January 2008, "planned to expel individuals namely members of the Kikuyu, Kamba, and Kisii (later referred to as Party of National Unity supporters)." Ruto and Sang were at the time members and supporters of ex-Prime Minister Raila Odinga's Orange Democratic Movement (ODM), a rival of former President Mwai Kibaki's PNU. According to the ICC prosecution, Ruto and Sang were members of the network that controlled attacks in specific parts of the Rift Valley using derogatory terms like madoadoa, kimoriok, and kamama to refer to the targeted groups and take what belonged to them. Sang allegedly used his show to coordinate attacks using coded language known to the perpetrators, whereas Ruto is accused of funding the assailants to carry
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out attacks around December 30, 2007 to January 2008 in Turbo town, the greater Eldoret area in Kiambaa, Yamumbi, Huruma and Kimumu. Other areas included Kapsabet Town and Nandi Hills. Former Industrialisation Minister Henry Kosgey who was accused alongside Ruto and Sang had his charges dropped during the confirmations stage in 2010. The fate of the case against President Uhuru Kenyatta remains hanging after the prosecution said it did not have sufficient evidence to hold his charges. Charges against former Head of Civil Service Francis Muthaura and former Police Commissioner Hussein Ali who were accused alongside Kenyatta in Kenya Case II had their charges dropped leaving Kenyatta as the only accused person who implemented a 'common plan' in the Nakuru and Naivasha killings. Kenya: ICC Seeks Kikuyu Translators All Africa By Judie Kaberia March 13, 2014 The International Criminal Court (ICC) is looking to recruit Kikuyu translators to work at The Hague on a contract basis. According to the announcement on the ICC website, applicants should have a good command of Kiswahili and English. Those with French or any other Kenyan language will have an added advantage. Successful candidates will earn a net pay Sh660,000 per month. The candidates are required to have a university degree from an accredited university in interpretation, linguistics and law. They should also have a minimum of seven years experience in language services. The translators will work in the Office of the Prosecutor where they will be expected to do Kikuyu and Kiswahili translations into English or vice versa. The application deadline is on March 18, 2012. Kenya: Defence Says Kenyan Broadcaster Called for Rift Valley Peace All Africa By J.J. Wangui March 13, 2014 Lawyer for Joshua Arap Sang disputes witness's account of incitement following 2007 polls. The lawyer representing a former Kenyan broadcaster in his trial at the International Criminal Court (ICC) this week challenged a prosecution witness who had testified that the defendant urged listeners to protest against the disputed presidential election of December 2007. Joseph Kigen-Katwa, acting for Joshua Arap Sang, argued in court that his client in fact advocated for peace in the aftermath of the polls. Sang, who used to present a radio show on Kass FM, is currently facing trial in
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The Hague alongside Kenya's deputy president, William Ruto. Both men are charged with orchestrating the bloodshed that unfolded following the disputed outcome of the 2007 presidential election. They are standing trial for murder, persecution, and forcible population transfer. More than 1,100 people were killed and 650,000 others forced from their homes in the conflict. Members of the ethnic Kalenjin community in the Rift Valley predominantly supported the opposition Orange Democratic Movement (ODM) in the election, while Kikuyus largely voted for the Party of National Unity (PNU) led by the then president Mwai Kibaki. Prosecutors accuse Sang, who is Kalenjin, of being "the voice of the post-election violence in Rift Valley". Last week, the protected witness - identified only by the reference number 442 told the court that Sang became angry after the election results were announced on December 30, 2007 and Kibaki was declared the winner. According to her, Sang told listeners in the Kalenjin language that they should "come out and demand" their rights. (See Witness Describes 2007 Party Campaigning for more.) The witness told judges that in January 2008, Sang told his listeners that "the work had been done properly, but there were areas where work remained". She said she understood to this to mean that attacks against non-Kalenjins in the Rift Valley had been successful. During his cross-examination this week, Kigen-Katwa played two clips from Sang's radio broadcasts on January 1 and January 4, 2008. In the first clip Sang, speaking in Kalenjin, was pleading for peace. The witness confirmed the lawyer's translation of his words. In the second clip, from January 4 2008, Sang called on people to remove roadblocks in the Rift Valley because they were preventing people from travelling to hospital. The witness said she had not heard Sang's peace messages on the days when Kigen-Katwa said they were broadcast, since by that time she had fled the violence. Kigen-Katwa asked the witness to identify the dates on which she had listened to Kass FM. "I told you it was about [January] 10, it was not beginning of January and it was not on a day after January 20," the witness replied. "Only that I don't remember the exact date but it is between January 10 and January 20 because it was not on 1st, 5th, 6th or 8th and I have not gone back to the end of January as I did not listen again." Earlier in her testimony, the witness said she listened to the station on December 27 and 30. Sang's lawyer asked the witness whether she had been aware of a ban on all live broadcasting that was put in place in January 2008. The witness said she had not known about this. The lawyer further asked her whether she was aware that
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due to the ban, Kass FM mostly carried music and messages of peace. The witness said this was not the case. "If what you are saying here that Kass FM had been closed [due to the ban] on that date you mentioned, then that means Sang had his own Kass FM," she said. Kigen-Katwa put it to the witness that she did not listen to Kass FM at all in early 2008. "I have shown you recordings by Kass FM variously on January 31, January 30 and 4 February and you are unable to recognise any of them. And the reason I put it to you, witness, is that you never used to listen to KASS FM and that you just concocted a story against Mr Sang whom you clearly dislike," Kigen-Katwa said. But the witness maintained that she had listened to the radio station. Earlier, David Hooper, who represents Ruto, had continued his crossexamination, begun last week. Hooper tried to show that the witness was lying when she testified previously that a then member of parliament, Elijah Lagat, led two ODM demonstrations against Kibaki's victory in the town of Kapsabet. Hooper put it to the witness that Lagat, who had just won the parliamentary seat, was celebrating his victory in Nairobi on December 31, 2007, and that the witness had not seen him in Kapsabet on either occasion. Following a dispute between the witness and Hooper, presiding Judge Chile EboeOsuji intervened to ask the former whether she agreed with the lawyer's assertions. "It is a lie. It is a complete lie because Lagat is the one who led the demonstrations," the witness replied. Hooper played several video clips of demonstrations on January 3 that showed people calling for peace. But the witness maintained that the demonstrations were not peaceful. She repeated her earlier testimony that demonstrators were chanting, "No Raila, no peace", in reference to the losing ODM presidential candidate, Raila Odinga. "Witness, I put it to you that this was a demonstration for peace, which is why the people were carrying leaves as a symbol of peace. Do you agree?" Hooper asked. "No, I don't," the witness said. She said the clips did not show groups of demonstrators who went to the police station in Kapsabet where people had taken refuge, and demanded they be brought out so that they could kill them. Hooper went on to challenge the account the witness gave last week of her escape from her home to the Eldoret showground, via the Kapsabet police station. The lawyer put it to her that it was her children and not her who went to the police station.
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"At no time were you ever there," Hooper said. "You've come here and you've lied about your story." Judge Eboe-Osuji asked the witness to respond clearly to Hooper's assertion. At this, she said, "No." Hooper produced records from the witness's mobile phone in order to show that she was not in Kapsabet in early January 2008. The records showed activity in Trans- Nzoia area of the Rift Valley, but the witness insisted she had been in Kapsabet. The witness completed her testimony on March 11, and the trial will resume again on March 31 after a break. Court: Barasa can Now be Arrested and Handed to ICC Standard Digital By John Muthoni March 19, 2014 The High Court has quashed orders stopping the arrest of journalist Walter Barasa after his lawyer, Kibe Mungai, failed to appear for the hearing. The lifting of the stay orders, which Barasa had earlier obtained means that Interior Cabinet Secretary Joseph ole Lenku can now apply for an arrest warrant against him and hand him for trial at the ICC. Justice Richard Mwongo while dismissing the application by Kibe to have the matter adjourned and he be granted 11 days to file a notice of appeal against the earlier ruling that had dismissed Barasa's case, said the lawyer was taking advantage of the stay orders to run other matters. "It is not acceptable for the counsel to take the extension of the stay orders that he sought. I therefore discharge the order and the ruling that had been made on January 31, this year shall take effect," said Mwongo. No Valid Reasons The judge in his ruling noted that the counsel did not communicate with the court that he had another matter to attend to in Kerugoya. Mwongo said: "The letter by Mr Kibe notifying he would not be present today for the hearing has not been filed in the court." The judge added that an appeal cannot be used as a reason for staying orders of court proceedings. He noted that he would only grant an adjournment if there were valid reasons for the same. He said the counsel would have communicated the difficulties he would face in litigating the matter while the Embu Governor's Martin Wambora case, which he was party to, was running before a three judge bench in Kerugoya. The counsel who was holding brief for Kibe had told the court that the judges had imposed the date of hearing of Wambora's case thus Kibe had to appear before them Wednesday.
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Kenya Court Allows Walter Barasa's ICC Extradition BBC News March 20, 2014 Kenya's high court has ruled that a journalist wanted by the International Criminal Court (ICC) in The Hague can be extradited. Walter Barasa is suspected of offering bribes to prosecution witnesses in the trial of Deputy President William Ruto. Mr. Barasa, who denies the allegations, had sought to challenge the arrest warrant issued by the ICC last year. Mr. Ruto's trial is ongoing and he denies charges of being behind ethnic violence surrounding polls in 2007. His trial, which was to start last month, has been delayed after a witness withdrew and another admitted giving false evidence. Last year, charges were dropped against Kenya's former civil service head Francis Muthaura, a co-accused of Mr Kenyatta, as some witnesses were too frightened to testify and another witness had recanted his testimony, the ICC said at the time. Transfer The High Court in the capital, Nairobi, made its ruling after Mr Barasa's lawyer, who wanted an adjournment, failed to appear at the hearing on Wednesday. Correspondents say it is now up to Interior Minister Joseph Ole Lenku to deal with the ICC's request for Mr Barasa's arrest and transfer to The Hague. In court papers made public last October, ICC prosecutors said Mr Barasa had offered bribes amounting to $16,200 (10,000). If found guilty he could face up to five years in jail. Mr. Kenyatta and Mr. Ruto were on opposite sides in the 2007 election, but formed an alliance to win power in elections a year ago. They said their alliance showed that Kenyans had resolved their differences, and the ICC was meddling in the country's affairs by pressing ahead with their trials.
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Cote d'Ivoire (Ivory Coast)

Official Website of the International Criminal Court ICC Public Documents - Situation in the Republic of Cote d'Ivoire
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Ivory Coast to Send Ble Goude to Face Charges at the ICC Reuters By Daniel Flynn March 20, 2014 Ivory Coast will send Charles Ble Goude, a former youth leader and close ally of ex-President Laurent Gbagbo, to the International Criminal Court where he is wanted on charges of crimes against humanity, the justice minister said on Thursday. "The cabinet has agreed to send Ble Goude to the International Criminal Court," Gnenema Mamadou Coulibaly told reporters. "We are going to study how to quickly execute this decision." The ICC said in October it had issued an arrest warrant for Ble Goude, who headed the notorious Young Patriots street militia during Gbagbo's presidency, for his alleged role in violence following a disputed 2010 general election. Gbagbo, who refused to give up power after losing the presidential runoff in 2010, has been in the ICC's custody since November 2011, accused of responsibility for rapes, murders, persecution and inhuman acts.
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AFRICA
Chad
ECOWAS Court Refuses to Suspend Case Against Hissene Habre Human Rights Brief By Brittany West February 23, 2014 The Economic Community of West African States adjudicatory body, the Community Court of Justice (ECCJ), recently denied Hissne Habrs petition to suspend the ongoing trial against him in the Extraordinary African Chambers. The Chambers, an ad hoc tribunal in Senegal, indicted Habr on June 2, 2013, for war crimes, crimes against humanity, and torture committed during his rule in Chad between 1982 and 1990. Habrs regime was responsible for 200,000 victims of torture and more than 400,000 deaths. The victims of Habrs rule attempted to seek justice in several different forums prior to the establishment of the Chambers. Seven of the victims first brought a case against Habr in a
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domestic Senegalese court in 2000, but the victims later brought the case in Belgium because the Senegalese court found Habr could not be tried domestically for crimes committed outside Senegal. The Senegalese courts, however, found they lacked jurisdiction to rule on an extradition request from Belgium. Before the Chambers took on the case, Senegals inability to try Habr came under international scrutiny. The United Nations Committee against Torture issued a decision against Senegal in response to the lack of legal remedies for the victims, finding that Senegal violated the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Under Articles 5 and 7 of the CAT, a State Party must establish jurisdiction over and prosecute an offender of the Convention if the offender is in the State Partys territory and the State Party cannot extradite him. Amidst international pressure and with the passage of new domestic legislation in 2007 that allowed for the prosecution of war crimes, crimes against humanity, and torture, Senegal prepared to try Habr in domestic courts. However, a later 2010 ECCJ ruling found that Habr had to be tried by an ad hoc tribunal of international character and not a domestic Senegalese court because Senegalese domestic law did not incorporate universal jurisdiction at the time of Habrs rule. A domestic court, therefore, would have to apply universal jurisdiction retroactively in violation of Article 15 of the International Covenant on Civil and Political Rights. International pressure to take concrete action on Habrs case continued and, in 2012, Senegal and the African Union (AU) created the Chambers as an ad hoc tribunal, integrating it into Senegals domestic legal system. On April 23, 2013, Habr asked the ECCJ to suspend all activities of the Chambers, arguing the illegitimacy of the Chambers and the inability of the Chambers to provide him a fair trial. The ECCJ dismissed the petition on November 5, 2013, finding that it did not have the authority to grant such a request because the Chambers were established through an agreement between Senegal and the AU. The ECCJ does not have jurisdiction to rule on the African Unions actions. Although a small decision in the lengthy trial, this recent ruling by the ECCJ may help guarantee justice for the victims, support for international criminal prosecution in Africa, and legitimacy for the ECCJs own rulings. The Habr trial carries the burden of proving that African courts can prosecute African leaders for international crimes. Discontent among African nations with the actions of the International Criminal Court (ICC) has led to support for international criminal prosecution of African leaders in African courts rather than in the IC C. Kenyas recent withdrawal from the jurisdiction of the ICC in September 2013 threatens to instigate a mass exodus of several other African countries from the ICC. Adding to the tension, the AU has debated whether to add international criminal jurisdiction to the pan-African court for several years. The ECCJs November decision in Habrs case allows the Chambers to prove that African courts can prosecute African leaders under international criminal law without the ICC.
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EUROPE
The Court of Bosnia and Herzegovina, War Crimes Chamber

Official Website [English translation]
Public Session in the Case v. Zoran Dragi!evi" Court of Bosnia & Herzegovina February 27, 2014 A public session in the case v. Zoran Dragi!evi" before the Section I for War Crimes of the Appeals Division, Court of Bosnia and Herzegovina, is scheduled to take place on February 28, 2014 beginning at 12:00 hrs in Courtroom 5. The Trial Panel of the Court of Bosnia and Herzegovina handed down today the Trial Verdict finding the Accused Zoran Dragi#evi$ guilty of the criminal offense of Crimes against Humanity in violation of Article 172(1)(h) and sentenced him to imprisonment for a term of 11 years. The Accused Zoran Dragi#evi$ is found guilty because in the period from May 2, 1992 to July 1993, within widespread and systematic attack of military and paramilitary forces of the Serb Republic of BIH, later called Republika Srpska, targeting civilian population of the city of Sarajevo, knowing of that attack and that his acts constitute part of the attack, as a member of those forces, conducted persecution of civilian non-Serb population of Grbavica settlement, Municipality of Novo Sarajevo, on discriminatory, ethnic and religious grounds, by rape, torture, imprisonment, other inhumane acts and looting. Trial Verdict to be Pronounced in the Case v. Najdan Mla#enovi" et al. Court of Bosnia & Herzegovina March 3, 2014 Pronouncement of the Trial Verdict before the Section I for War Crimes of the Court of BIH in the case v. Najdan Mla#enovi" et al. is scheduled to take place on March 4, 2014 starting at 1.00 p.m. in Courtroom 6. On August 7, 2012, the Court of Bosnia and Herzegovina confirmed the Indictment
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under which the Accused Najdan Mla%enovi$ and Savo &ivkovi$ are charged with the criminal offense of Crimes against Humanity. The Indictment alleges, among other things, that within a widespread or systematic attack against non-Serb civilian population in May 1992 in the territory of Bratunac Municipality, the Accused Najdan Mla%enovi$, in the capacity as one of the Bratunac Territorial Defense commanders, ordered, committed and aided, while Savo &ivkovi$, in the capacity as the Bratunac Territorial Defense member, committed and aided the persecution of non-Serb civilian population on national, ethnic and religious grounds by way of unlawful deprivation of liberty, physical and mental abuse and destruction of non-Serb civilian population property. Custody Terminated and Prohibiting Measures Ordered in the Case v. Ned$ad Hod$i" Court of Bosnia & Herzegovina March 4, 2014 In the procedure of custody justification review, the Court of Bosnia and Herzegovina rendered the Decision dated February 24, 2014, terminating custody of the Accused Ned$ad Hod$i" and ordering the following prohibiting measures: 1. Ban on leaving the place of residence (house arrest - members of the relevant Police Station shall make random checks on his place of residence on a daily basis); 2. Travel ban (including the seizure of travel documents, prohibition of issuance of travel documents, as well as the prohibition to use the identity card for crossing the State border of Bosnia and Herzegovina); The imposed prohibiting measures may last as long as necessary, while the review of their justifiability shall be carried out on a bimonthly basis. If the Accused violates any of the imposed prohibiting measures, he may be ordered into custody. Ned'ad Hod'i$ is charged with the criminal offense of War Crimes against Civilians and War Crimes against Prisoners of War. Najdan Mla#enovi" Received a Sentence of 3 years and 6 Months in Prison Savo %ivkovi" Acquitted of Charges Court of Bosnia & Herzegovina March 4, 2014 The Trial Panel of the Section I for War Crimes of the Court of Bosnia and Herzegovina delivered today a Verdict finding the first-accused Najdan Mla#enovi" guilty that he committed the criminal offense of War Crimes against Civilians under Article 142 of the Criminal Code of the Socialistic Federative Republic of Yugoslavia, taken in conjunction with Article 22 of the same Code, and sentencing him to 3 years and 6 months in prison. Pursuant to Article 50 of the CC of the SFRY, the time the accused Najdan Mla%enovi$ spent in custody shall be credited towards the imposed sentence of imprisonment. Pursuant to Article 188(1) of the Criminal Procedure Code of Bosnia and Herzegovina, the Accused must reimburse the costs of criminal proceedings in a scheduled amount of 300.00 KM, within 30 days after the Verdict became final.
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The same Verdict acquitted the accused Najdan Mla%enovi$ of certain counts of the Indictment that he committed the criminal offense of Crimes against Humanity under Article 172(1)(h), as read with items (a), (d), (e), (i), (f) and (k), of the Criminal Code of Bosnia and Herzegovina, taken in conjunction with Article 180(1) and Article 29 of the same Code. The accused Savo &ivkovi$ was acquitted of the charges that he committed the criminal offense of Crimes against Humanity under Article 172(1)(e) and (k) of the CC of BiH, as read with Articles 29 and 180(1). In addition, since the BiH Prosecutors Office dropped charges under Counts II.1.e), II.2.a), c), d), e) and (f) and II.3.a) and b) for the criminal offense of Crimes against Humanity under Article 172(1) in relation to the accused Najdan Mla%enovi$, the accused Mla%enovi$ is relieved of the duty to reimburse the costs of proceedings. Also, the Court has issued a decision extending the prohibiting measures imposed on the accused Najdan Mla%enovi$, and cancelling the prohibiting measures in relation to the accused Savo &ivkovi$. Bosnia Jails Serb for Burning Houses in Bratunac Balkan Transitional Justice March 4, 2014 The court in Sarajevo on Tuesday found Mladjenovic guilty of the destruction of property by showing a group of Serb soldiers which Bosniak homes to burn, and also of torching a house himself. But he was cleared of charges accusing him of having command responsibility for murders and the destruction of property during the attacks on the villages of Glogova and Hranca in May 1992. His co-defendant Savo Zivkovic was acquitted of all charges. They were orginally indicted for allegedly taking part in a widespread and systematic attack on civilians in Bratunac and helping the persecution of non-Serbs through arrests, abuse and the destruction of property. But the judge said that the prosecution had failed to prove that Mladjenovic was the deputy commander of the Territorial Defence Reconnaissance Section, which was allegedly involved in the attack, or even to prove which armed group was responsible for the violence in one of the two villages, Hranca. "Even if we had accepted that he commanded and gave the orders listed in the indictment, none of the witnesses in this case heard those orders," said presiding judge Zeljka Marenic. Marenic added that it was also not proved that Mladjenovic committed the crimes in Glogova because witness testimonies were inconclusive. Despite being originally charged with crimes against humanity, the court instead convicted Mladjenovic of crimes against the civilian population because, Marenic said, the prosecution failed to prove the existence of a "widespread and systematic attack on Bosniak civilians". As mitigating circumstances, the court took into account the fact that Mladjenovic was a father of three without previous convictions and had shown a positive attitude
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towards post-war Bosniak returnees. [back to contents]
International Criminal Tribunal for the Former Yugoslavia (ICTY)

Official Website of the ICTY
Karadzic Witnesses Deny Camp Atrocities Institute for War and Peace Reporting By Velma Saric February 28, 2014 The trial of former Bosnian Serb political leader Radovan Karadzic continued this week with testimony from several defence witnesses who spoke about events in the northwestern Bosnian municipalities of Prijedor and Sanski Most in 1992. Both were captured by Serb forces at the beginning of the 1992-95 war in Bosnia and were subsequently controlled by Karadzics Serb Democratic Party (SDS). Karadzic is accused of crimes of genocide, extermination, persecution, murder and forcible transfer of non-Serbs from the territories under the control of Bosnian Serbs. The indictment against him alleges that crimes committed against non-Serbs in Sanski Most and Prijedor municipalities amounted to genocide. The first witness to testify this week was Dusan Jankovic, who served as commander of the police station in Prijedor, close to where the Bosnian Serb-run prison camps of Omarska and Keraterm were located. Last year, Jankovic was sentenced to 21 years in prison by the Court of Bosnia and Herzegovina for his part in the execution of about 200 Bosniaks at Koricanske Stijene on August 21, 1992. Testifying at Karadzics trial this week, Jankovic told judges that in his role as police commander in Prijedor, he did not receive reports from Omarska and Keraterm and he had no knowledge of what was going on there. He said these reports were sent to his superior, Simo Drljaca, who was chief of police for Prijedor. Drljaca was indicted by the Hague tribunal in March 1997, but he was shot and killed by NATO soldiers during an attempt to arrest him in July that year. According to Jankovic, Drljaca was subordinate to the Banja Luka regional police department and above that the Bosnian Serb interior ministry "but not to Karadzic". "Drljaca had no contact with the president, and there was no need for that,"
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Jankovic said in court. Momcilo Gruban, a former guard at the Omarska prison camp, also testified this week. In 2008, the Court of Bosnia and Herzegovina found Gruban guilty of crimes against non-Serbs in the Prijedor area and sentenced him to 11 years imprisonment. In 2009, his sentence was reduced to seven years on appeal. Gruban told Karadzics trial this week that there was "no maltreatment or any bad behaviour towards the detainees at the Omarska camp". He referred to Omarska not as a detention camp, but as a "shelter and investigation centre". He said the police were there to protect and help the people held there "as far as the law and the circumstances allowed". In the cross-examination conducted by prosecutor Ann Sutherland, Gruban said that he "had never seen any beatings or incidents" but that he had "heard of cases when people from the outside would come to the camp to settle scores with some of the detainees, sometimes violently". The witness added that those responsible were paramilitary soldiers from "groups outside the system". "These people were well armed and there was nothing that the police who were securing the camp could actually do to stop them," Gruban told the court. Asked by the prosecution about cases where people died in Omarska due to insufficient medical care and malnutrition, the witness responded by making a comparison with conditions at the Hague tribunals detention unit. "You see, people are dying here too, and there are complaints about the quality of the food here as well, although unlike us, you have everything you need to ensure good food for the people. Maybe the food wasnt good and plentiful in Omarska back then, but there is no such thing as good food for detainees," Gruban said. The third witness to testify for Karadzics defence this week was Dusan Mudrinic, who was an SDS party member in Sanski Most in 1992. "We cannot speak of any organised war crimes in Sanski Most," Mudrinic told the court. "There were crimes committed by individuals without any support from the government, but those were sporadic incidents." "Muslims were asking us for protection and they got it," Mudrinic continued. "And when they asked us to let them leave their homes, we did that, too. We allowed them to go." When prosecutor Bronagh McKenna put it to the witness that the property of nonSerbs was taken by force, and noted that Mudrinic himself became the proprietor of a caf previously owned by a Bosniak, the witness insisted that the prosecution had "got it all wrong". He claimed that Bosniaks gave away their homes, cars and cafs "to their Serb friends", including himself, "of their own free will", and that this transfer of property
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had occurred "absolutely legally, in the presence of a lawyer". The trial continues next week. Mladic Prosecution Rests Its Case Institute for War and Peace Reporting By Rachel Irwin February 28, 2014 The Hague tribunal prosecution this week officially rested its case against wartime Bosnian Serb army commander Ratko Mladic. On March 17, a process known as 98-bis will begin, in which tribunal rules allow the accused to seek an acquittal on all counts on the grounds that there is no evidence to support a conviction. If the judges deny Mladics request and the defence case moves forward, it is set to begin on May 13. Prosecutors allege that Mladic is responsible for crimes of genocide, persecution, extermination, murder and forcible transfer which "contributed to achieving the objective of the permanent removal of Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territory". He is also accused of planning and overseeing the 44-month siege of Sarajevo that left nearly 12,000 people dead, as well as the massacre of more than 7,000 men and boys at Srebrenica in July 1995. Mladic was arrested in May 2011 after 16 years on the run. His trial commenced in May 2012 and the final prosecution witness took the stand in December of last year. Karadzic Lobbies Judges Over "Immunity Deal" Institute for War and Peace Reporting By Rachel Irwin February 28. 2014 Trial judges at the Hague tribunal have agreed to take into consideration an alleged agreement promising Radovan Karadzic immunity from prosecution when they decide the length of his prison sentence, if he is convicted. Since he was arrested in July 2008, Karadzic has claimed that in 1996 several months after the signing of the Dayton Peace Agreement ended the Bosnian war he made a deal with American diplomat Richard Holbrooke that he would be "immune from prosecution at the tribunal if he agreed to withdraw from public life". Holbrooke, who died in 2010, publicly denied these allegations. Karadzic, however, has continued to maintain that such a deal had been made, and that the tribunal therefore did not have jurisdiction to try him. In July 2009, the pretrial chamber in The Hague ruled that even if the agreement did exist, it was not binding on the tribunal and had no impact on jurisdiction. The judges noted, however, that information pertaining to the alleged agreement "may be relevant to any eventual appeal and any eventual sentence". The appeals chamber agreed, stating that "such allegations could be considered for the purposes of sentencing, if appropriate".
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With his trial now nearing an end, Karadzic asked to submit 14 documents supporting the existence of the agreement. He further argued that according to tribunal jurisprudence, "the character and acts of the accused subsequent to the conflict may be a mitigating factor in sentencing". Karadzic contends that his resignation as president of the Bosnian Serb entity Republika Srpska in 1996 was his "contribution to the implementation of the Dayton Peace Agreement". He "went further by resigning as president of the SDS [Serbian Democratic Party] and all public functions, and withdrawing from public life". Karadzic argues that he is "entitled to argue for a sentence reduction as a result of his reliance upon the agreement he had with Richard Holbrooke that he would not be prosecuted at the tribunal if he resigned from office and withdrew from public life an agreement he kept to his detriment, but one which the tribunal refused to honour". In response, the prosecution argued this week that "to the extent that they address the existence of the Holbrooke agreement", the documents Karadzic wanted to have admitted as evidence "are not capable of mitigating the sentence and thus are not admissible". Judges this week noted that both the pre-trial chamber and the appeals chamber had found that material relating to the alleged agreement might be relevant for sentencing. Given the additional information provided by the accused, they decided that "the material is prima facie relevant to sentencing and should be admitted into evidence". As for the prosecutions objections, judges stated, "this is a matter of weight given to the material and considered during sentencing deliberations, if any". The last defence witness to testify in Karadzics trial, referred to by the number KDZ-584, will take the stand on March 3. Prosecutors allege that Karadzic, the president of Bosnias self-declared Republika Srpska from 1992 to 1996, is responsible for crimes of genocide, persecution, extermination, murder and forcible transfer which "contributed to achieving the objective of the permanent removal of Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territory". He is also accused of planning and overseeing the 44-month siege of Sarajevo that left nearly 12,000 people dead, as well as the massacre of more than 7,000 men and boys at Srebrenica in July 1995. Karadzic was arrested in Belgrade in July 2008 after 13 years as a fugitive. [back to contents]
Domestic Prosecutions In The Former Yugoslavia

Croatian Serb Leader Hadzics Acquittal Plea Rejected
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Balkan Insight By Marija Ristic February 21, 2014 The Hague Tribunal has refused a motion for acquittal from former Croatian Serb leader Goran Hadzic, who is on trial for war crimes during the conflict in Croatia in the early 1990s. The International Criminal Tribunal for the Former Yugoslavia on Thursday dismissed Hadzics motion for acquittal on eight counts of his indictment that accuse him of serious violations of human rights. Hadzic, the former president of the Republic of Serbian Krajina, a self-proclaimed Serb statelet in Croatia during wartime, is on trial over a series of crimes including the deportation of tens of thousands of non-Serbs and the murders of hundreds more from June 1991 to December 1993. In December, at the mid-point of his trial, Hadzics defence asked the court to reconsider his indictment, arguing that he didnt actually have power in Serbcontrolled areas of Croatia and that crimes there were committed by Yugoslav Peoples Army, which was not under his control. Rejecting the motion for acquittal, the Tribunal found that the prosecution had presented sufficient evidence for the court to find that crimes were committed and to create the basis for a possible ruling that Hadzic participated in a joint criminal enterprise, as alleged in the indictment. "But the presence of evidence capable of sustaining a conviction does not mean that the Trial Chamber will enter a conviction at the end of the case," judge Guy Delvoa cautioned. Hadzic was initially indicted in June 2004, and after being at large for almost seven years, he was arrested by the Serbian authorities in July 2011 the last fugitive wanted by the Tribunal to be sent to The Hague. His defence is expected to start presenting its case in April. Bosnian Serbs Demand Acquittal Over Mosque Killings Balkan Insight February 25, 2014 Lawyers for former Serb fighters accused of involvement in killing and burning Bosniak civilians at a village mosque near Prijedor in 1992 said their guilt had not been proved. Defence lawyers for two of three former fighters on trial, Dragomir Soldat and Velemir Djuric, who are accused of shooting the Bosniaks in the village of Carakovo near Prijedor, said in their closing arguments on Monday that the men should be acquitted. "Not one single piece of prosecution evidence suggesting that Soldat had or demonstrated command power over any other units but his unit, that he issued orders to any squad or that he knew the [other] indictees, was presented during the main trial," said Soldats lawyer Savan Zec. Soldat is accused of ordering the killings in Carakovo on July 23, 1992, while Djuric and Babic carried them out, taking Bosniak men from their homes in Carakovo and then shooting them dead outside
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the village mosque. The indictment also alleges that some of the men who survived the shooting died soon afterwards when Djuric and Babic set the mosque on fire. According to the charges, Soldat was a military policeman with the 43rd Motorised Brigade of the Bosnian Serb Army, Djuric a member of the armys Intelligence Centre, and Babic a reservist policeman in Prijedor. Soldats lawyer said that the indictment was based on a statement given by witness Sefik Karupovic who stood to benefit if his client was jailed, he alleged. "In 1993, Karupovic sold Dragomir Soldats house, but he has never given the money to Soldat. After having performed this fraud, Karupovic must have been aware of the fact that he would be criminally prosecuted later on, so he realised that he could get rid of Soldat," the lawyer said. Djurics lawyer said meanwhile that the prosecution had not proved that he was in Carakovo on July 23, 1992, adding that the defence had offered many pieces of evidence indicating that he was somewhere else that day. Lawyer Branko Dakic also said that the prosecution had not proved that a widespread and systematic attack by Bosnian Serb forces was carried out in the Prijedor area, adding that the incident on July 23, 1992 was "an isolated event". Babics defence is due to present its closing argument on March 3. Witness Recalls School Beatings by Bosnian Croat Fighter Balkan Insight February 28, 2014 A prosecution witness accused former Croatian Defence Council fighter Josip Tolic of assaulting him twice while he was detained at a primary school in Odzak in northern Bosnia in 1992. Witness Slavko Cajic, a former Yugoslav Peoples Army reservist, told the Sarajevo court on Thursday that in the spring of 1992, he fled from the village of Trnjak in the Bosanski Brod area of northern Bosnia to another village, Novi Grad, in order to avoid shelling by Croat forces. "There was a deal between the [local Serb and Croat] crisis headquarters [in the area] that we were to go to free Serbian territory and surrender weapons," recalled Cajic. But he said the deal was not fulfilled and that instead, Serb locals were detained at the primary school in Odzak by Croatian Defence Council fighters. The witness said that he was repeatedly beaten while held at the school and that the defendant Tolic assaulted him twice. "They took me to the classroom. He beat me with his hands and with a stick and kicked me with his leg like karate," said Cajic. Tolic, a former member of the 102nd Odzak Brigade of the Croatian Defence Council, is charged with having participated in the abuse of Serb prisoners in the Odzak and Bosanski Brod area of northern Bosnia from May to October 1992. Another witness at the trial on Thursday, Boro Lesic, said he was also held at the school in Odzak, where he saw Tolic assault another prisoner. "Once [prisoner] Slavko Topic was holding a bottle and he [Tolic] stopped him and asked, Where [are you going]? He then hit him with the bottle, with his palm and with his foot. He
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[the prisoner] collapsed," Lesic recalled. The defence said the witness did not mention Tolic at all in his first statement in 2007, and did not mention the bottle incident in his second statement in 2013. "I remembered it when I saw the man in the courtroom," the witness responded. The trial is due to continue on March 14. Bosniak on Trial in Banja Luka for Killing Serb Balkan Insight March 3, 2014 The trial of former Bosniak fighter Dzevad Zec started in the Bosnian Serb city of Banja Luka with a witness claiming that the defendant bragged about killing a Serb civilian in 1992. Prosecution witness Borislav Vasiljevic told the court on Monday that while he was detained in the village of Vecici near Kotor Varos in the summer of 1992, he hear Zec saying he killed a man called Slavo Vasiljevic. "After Slavo was killed, my father Mirko and I were detained by men from Vecici. When they brought us to the village, [two fighters called] Sulejman Beculic and Rukib Hibic asked my father why he killed Slavo. Then Zec came and said: Dont harass these people, I killed Slavo. I fired from Bojos meadow," said the witness. He added that before the war he had good relations with Zec, and so the defendant did not beat or abuse him during his detention. The Banja Luka district prosecution charges Zec with killing Vasiljevic with an automatic rifle on June 19, 1992, in the village of Staza, near Kotor Varos. The indictment alleges that Zec went to a meadow owned by a man called Bojo Vasiljevic in the evening and fired a round at Vasiljevic, who was standing on his porch. The second witness in the trial on Monday, Milenko Vasiljevic, said that in June 1992 he was near the village of Staza when he saw Zec running across the road with a rifle in his hand. "I went to Staza to pick up my father, aunt and her children. When we were coming back from the woods, several people shot at us and wounded my aunt and I. Later I saw the defendant running across and going into the woods," the witness said. The trial continues on April 15. Four Bosnian Serbs Convicted of Smoluca Prisoner Abuse Balkan Insight March 5, 2014 Four former Bosnian Serb Army soldiers were sentenced to a total of 18and-a-half years in prison for abusing prisoners of war in the village of Smoluca near Tuzla in 1992. The cantonal court in Tuzla on Wednesday sentenced Svetomir Ilic to six years in prison, Milorad Cvijanovic and a fighter with the same name, Milorad Cvijanovic, to five years in jail each, and Vaso Ilic to two-and-a-half years for assaults on Bosniak
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detainees during wartime. "They are found guilty of the violation of the international laws and customs of war, as well as the violation of some provisions of the Geneva Convention," said presiding judge Fetija Pasic. All four men were convicted of repeatedly inflicting severe injuries to four members of the Territorial Defence forces from Srebrenik and Tinja in the Tuzla municipality in June and July 1992, and of violating their human dignity. The verdict can be appealed at the supreme court of the Federation of Bosnia and Herzegovina. [back to contents]
MIDDLE EAST AND ASIA
Extraordinary Chambers in the Courts of Cambodia (ECCC)

Official Website of the Extraordinary Chambers Official Website of the United Nations Assistance to the Khmer Rouge Trials (UNAKRT)
KRT Grants Consent for Thai Travel The Phnom Penh Post By Stuart White March 12, 2014 The trial chamber of the Khmer Rouge tribunal has granted former defendant Ieng Thirith ex-Khmer Rouge minister of social affairs and wife of her late co-defendant Ieng Sary permission to travel to Thailand for medical treatment after a recent fall left her unable to walk. In a filing dated March 7 and posted to the court's website yesterday, the chamber notes that Thirith's daughter had notified them that "Thirith on 1 March 2014 fell off of her bed 'exacerbating her already-deteriorating conditions and causing her sustained severe pain' and that since her injury, she has not been able to get out of bed or walk on her own". The filing states that a doctor recommended Thirith be transferred to Thailand from her home in Pailin province, and that a routine CAT scan on February 19 had found evidence of two "mini strokes". Though Thirith was found unfit to stand trial in Case 002 due to advancing
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dementia, the court maintains "judicial supervision" over her, and has the power to restrict her travel. Japan Tops Up Tribunal The Phnom Penh Post By Kevin Ponniah March 14, 2014 Japan, the Khmer Rouge tribunal's top international donor, has disbursed another $1.83 million to the court, embassy officials have said, bringing that nation's total contributions to more than $80 million. According to Takayoshi Kuromiya, counsellor at the Japanese embassy, Japan contributed the sum to the UN component of the Extraordinary Chambers in the Courts of Cambodia last month. "Japan continues to support the judicial process of the Khmer Rouge Tribunal. At the same time, it is also important that [a] wide range of countries will support this tribunal, which was established based on a resolution of the General Assembly of the United Nations," he said in an email.
[back to contents]
Iraqi High Tribunal

Grotian Moment: The International War Crimes Trial Blog [back to contents]
Syria
[back to contents]
Special Tribunal for Lebanon

Official Website of the Special Tribunal for Lebanon In Focus: Special Tribunal for Lebanon (UN)
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STL Releases Annual Report, to Decide on Connected Cases The Daily Star By Kareem Shaheen March 11, 2014 Prosecutors at the Special Tribunal for Lebanon will decide this year whether they have enough evidence to formally accuse suspects in connection with the attempted assassinations of MP Marwan Hamade and former Defense Minister Elias Murr and the killing of former Communist Party leader George Hawi. The Hague-based court could also be a model for a permanent tribunal to prosecute crimes of terrorism throughout the world, its president said in the annual report released Monday. The STL said in a statement that the report, the fifth since it opened its doors in March 2009, was delivered last week to U.N. Secretary-General Ban Ki-moon, President Michel Sleiman and Prime Minister Tammam Salam. "Justice can and must play its part in restoring peace and security to Lebanon," the STL said in the 46-page document, which covers the period from the beginning of March last year until the end of February this year and outlines milestones in the court's work. The tribunal began the Hariri trial in January. Four members of Hezbollah stood accused of complicity in the Valentine's Day bombing that killed Hariri and 21 others, plunging Lebanon into political turmoil and ending Syria's formal tutelage over its smaller neighbor. The case of a fifth suspect, who is also accused of helping orchestrate the assassination, was joined to the first four in February. All are being tried in absentia. The court described the start of trial as a "watershed" in its operations that revealed the magnitude of the case. But the report's most intriguing passage refers to other cases the tribunal may decide to hear. The section of the report written by the prosecution refers to the creation of a "related cases" team that would continue to "investigate and analyze material" related to cases within the tribunal's mandate, as well as attacks that happened later. The STL can decide to try any political assassinations that occurred between October 2004 and December 2005 ending with the car bomb attack that killed journalist and politician Gebran Tueni. But the prosecution's statement confirms that it has taken an interest in attacks that occurred later and that may have links to Hariri's killing. Such cases are likely to include the killing of the ISF's top terrorism investigator Wissam Eid, who was closely involved in the analysis of telecommunications data that would go on to form the backbone of the case against the five Hezbollah suspects. Even if it is not allowed to submit indictments in such cases, the prosecution said it
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would share the results of its analysis with Lebanese authorities "as assistance to their domestic investigations." The March 14 political bloc has asked that all political assassinations following the tribunal's creation be referred to the STL. In addition, the prosecution said it continued to investigate the attacks against Hamade, Murr and Hawi and added that it would decide whether to submit indictments in the cases this year. The STL claimed jurisdiction over the three attacks in August 2011, saying there was evidence that they were "connected" to the Hariri bombing. The court has maintained a conspicuous silence since then on whether there has been any progress in the cases. But the prosecution said it would finally decide whether to submit indictments in the cases this year. "During the coming year, a decision will be taken in this regard," they said in the report. This is the first time the prosecutor has given a clear deadline in the cases. New indictments would help deflect criticism that the tribunal's mandate is too limited and would begin to outline a pattern behind the series of political assassinations that upended Lebanon's political order. "The next year will be as busy as this past year, if not more so, for the office of the prosecutor," it said. The court has so far heard the testimony of 15 witnesses, admitted statements by 45, as well as 186 pieces of evidence into the trial, including 7,342 pages of documents and reports. But the beginning of the long-awaited trial, nearly nine years after Hariri was killed, has not brought an end to attacks in Lebanon. The country has endured a series of bombings linked to the Syrian crisis and witnessed the killing of former Finance Minister Mohammad Shatah by a car bomb in December. "The resumption of bombing attacks has once again imposed strains and pressures on Lebanon, a founding member of the United Nations," the court said. The report also offered glimpses into the scale of the tribunal's work. The STL's budget for 2014 is just under 60 million euros, and the court employs 394 staff members, 58 of whom are Lebanese. The European Union, along with 28 countries, has so far helped fund the tribunal. Its financial backers include four of the five permanent members of the Security Council the U.S., Russia, the U.K. and France. The court also receives funding from Arab countries, but does not identify them individually, calling them only "regional states." STL, Bar Association Hold Conference on Tribunal The Daily Star March 12, 2014
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Officials from the Beirut Bar Association and the Special Tribunal for Lebanon took part in a conference Tuesday to explain and examine the unique court, concluding that proceedings had been kept independent from national or regional politics. Speaking to 150 legal professionals, BBA chief Georges Jreij said: "It is our firm conviction that the Special Tribunal for Lebanon has been successful in maintaining its independent rulings separate from the politics of any given state, and in pursuing its legal mandate uninfluenced by the political agenda of any given state." Among those in attendance were STL Prosecutor Norman Farrell, Defense Office head Franois Roux and STL Vice President Judge Ralph Riachi. Roux Hopes New Cabinet Cooperates with STL Defense Teams Naharnet March 13, 2014 Head of the international tribunal's defense office Francois Roux expressed hope on Thursday that the Lebanese authorities and the new cabinet would fully cooperate with the Special Tribunal for Lebanon, in particular his team. "We will see if cooperation with the new government will be fruitful... So far I'm hearing positive remarks," Roux said in an interview with An Nahar newspaper. He pointed out that the STL had previously demanded a swift and comprehensive cooperation. Asked if the defense team has any new requests, Roux said that the defense counsel of suspect Hassan Habib Merhi might have after his case was joined to Ayyash et al. cases. In February, the trial Chamber of the STL approved approved a request from the Prosecution to join the case against Merhi to the case against Salim Ayyash, Mustafa Badreddine, Assad Sabra and Hussein Oneissi, whose in absentia trial had started on January 16. "The Lebanese authorities granted the defense teams some answers but they weren't what they expected," Roux told An Nahar. He pointed out that Merhi's defense team "needs time" to prepare its case. "Merhi's team requested two-month period to come with a perception of the period it needs to prepare its case," Roux noted. All of the five accused are indicted for their alleged role in the February 14, 2005 attack that killed former premier Rafik Hariri and 22 other people. On February 1, 2012, the Trial Chamber issued a decision to try the four accused in absentia, in accordance with Article 22 of the Statute of the Tribunal. The Pre-Trial Judge confirmed a sealed indictment submitted by the Prosecutor against Merhi on July 31, 2013. This was made public in October last year. On December 20, 2013, the Trial Chamber issued a decision to try Merhi in absentia, which is permissible under Lebanese law.
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And on December 30, 2013, the Prosecution filed an application to the Trial Chamber, requesting to join the two cases. Merhi is charged with a number of crimes including "the crime of conspiracy aimed at committing a terrorist act." He is alleged to have acted in a conspiracy with Hizbullah members Badreddine, Ayyash, Oneissi and Sabra in relation to the attack on February 14, 2005. Merhi is alleged to have coordinated the preparation of the purported claim of responsibility as part of the preparations for and in furtherance of the attack. The STL has described Merhi as "a supporter of Hizbullah" who was born on December 12, 1965 in Beirut. It said he has resided in Burj al-Barajneh. Hizbullah chief Sayyed Hassan Nasrallah has rejected the STL, describing it as an American-Israeli conspiracy against his party. He has vowed never to cooperate with the tribunal, saying that the suspects will never be found.
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Bangladesh International Crimes Tribunal

Defence Questions Witnesses' Credibility The Daily Star March 12, 2014 The defence at the International Crimes Tribunal-1 yesterday questioned the credibility of witnesses who testified in the war crimes case against Jamaat-e-Islami chief Motiur Rahman Nizami. On the second day of placing closing arguments at the tribunal, defence counsel Mizanul Islam claimed that the investigation officer of the case manipulated the witnesses to testify against Nizami. The defence counsel yesterday placed arguments on at least four out of 16 charges brought against the Jamaat chief. One of the charges reads that Kasim Uddin, the head moulana of Pabna Zila School, was arrested by the Pakistani army at Nizami's instigation on June 4, 1971 as Kasim was thought to be a supporter of the campaign to free Bangladesh from Pakistani occupation. Kasim was tortured in Nizami's presence and later on June 10 he was shot dead. Mizanul told the tribunal that the prosecution brought three witnesses to prove the charge. One of the witnesses was one Yusuf Ali Biswas who at first was not on the list of witnesses. Yusuf Ali in his testimony said he saw Nizami along with a [Pakistani] major in a truck which was carrying the headmaster of a Pabna school and two others shortly
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before they were killed on the bank of the river Isamati, said Mizanul. He also said he mentioned the incident at the tribunal for the first time, Mizanul added. The defence counsel then argued that if Yusuf Ali mentioned the incident for the first time at the tribunal then how the investigation officer learnt about it beforehand. The witness, according to the defence counsel, also never went to Madhpur Bazar, about 20 minutes away from where the killing took place, before or after the incident. The proceeding of the case was adjourned until today.
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War Crimes Investigation in Burma

Quintana Releases Final Report on Burma Human Rights Irrawaddy By Samantha Michaels March 14, 2014 The outgoing UN human rights rapporteur for Burma will urge the United Nations to get involved in an investigation into allegations that dozens of Rohingya Muslims were killed in Duu Chee Yar Tan village, Arakan State. In his final report after six years of monitoring the rights situation in Burma, Toms Ojea Quintana said he would recommend that the UN Human Rights Council assist with an inquiry into the situation because the Burmese government had failed to conduct a credible investigation on its own. The UN rapporteur is expected to make these recommendations formally when he presents his report to the UN council on Monday. Earlier this week, a government-backed investigation commission said it had found no evidence to suggest that police officers and an Arakanese Buddhist mob killed about 40 Rohingyas in Duu Chee Yar Tan in January. Members of the investigation commission included an adviser to President Thein Sein and an official from the Myanmar National Human Rights Commission, which earlier conducted its own investigation into the matter and also concluded that there was no evidence of a massacre. "In view of the failure of the government to conduct a credible and independent investigation into the allegations of widespread and systematic human rights violations in Rakhine [Arakan] State which may constitute crimes against humanity, particularly since the outbreak of the June 2012 violence the Special Rapporteur calls on the Human Rights Council to work with the Government to establish a credible investigation to uncover the truth of what happened in Du Chee Yar Tan on
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13 and 14 January 2014, and to hold anyone responsible for human rights violations to account," said the report, published late this week on the website for the UN Office of the High Commissioner for Human Rights. Quintana made his ninth and final mission to Burma from Feb. 14-19. In Arakan State he met with the chief of the state police force and revisited Aung Mingalar, the only remaining Muslim neighborhood in the state capital Sittwe. He also went to Laiza, a rebel stronghold in the conflict area of Kachin State, as well as the Letpadaung copper mine in Sagaing Division and the Thilawa Special Economic Zone in Rangoon Division, both sites of alleged land-grabs. He noted "significant changes" for the better in the country's overall rights situation since he began monitoring six years ago, including presidential amnesties that have led to the release of more than 1,100 political prisoners, free and fair by-elections in 2012, and progress in winding down decades of armed conflict in ethnic border states. However, he said he was disappointed that Snr-Gen Min Aung Hlaing, commanderin-chief of Burma's armed forces, never once agreed to meet with him during his term. The UN rapporteur said it was important for the military to engage more with the international community. "For the time being, the military retains a prevailing role in the life and institutions of Myanmar [Burma]," said the report. "State institutions in general remain unaccountable and the judiciary is not yet functioning as an independent branch of the State. Moreover, the rule of law cannot yet be said to exist in Myanmar. In this regard, tackling the impunity and systematic discrimination in Rakhine State represents a particular challenge which, if left unaddressed, could jeopardise the entire reform process." The report reiterated many of the concerns expressed by Quintana last month, at the close of his visit, regarding ongoing rights violations in Kachin State and northern Shan State, including allegations of rape, arbitrary detention and torture during interrogation. It also expressed concerns over press freedoms. "The Special Rapporteur highlights that there is a long way to go before Myanmar has a free, uncensored and unhindered press," it said, noting the recent detention of journalists from two local publications for their reporting about sensitive issues. According to the report, Quintana received assurances from Minister of Information Aung Kyi that the Printers and Publishers Registration Bill had been amended to remove the ministry's power to grant and revoke publication licenses. The bill was formally approved by Parliament last week and will soon be signed into law by Thein Sein, but members of Burma's Interim Press Council say it still grants the government unilateral authority to withhold or revoke licenses. The new rapporteur on human rights in Burma will be Yanghee Lee, a South Korean expert on children's rights issues. She has been a member of the UN Committee on the Rights of the Child since 2003, and the committee's chair from 2007 to 2011.
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NORTH AND SOUTH AMERICA
United States
Military Repatriates Algerian Detainee From Guantnamo Bay New York Times By Charlie Savage March 13, 2014 The military announced Thursday that it had repatriated an Algerian detainee who had been held without trial for 12 years at the prison at Guantnamo Bay, Cuba. The transfer is the first in nearly three months, and it reduces the inmate population there to 154. The detainee, Ahmed Bin Saleh Bel Bacha, 44, was the final Algerian prisoner whom a task force recommended for transfer more than four years ago. Four others were sent back last year, two in August and two in December. The task force, with members from six national security agencies, reviewed the case of each prisoner at Guantnamo during the Obama administration's first year. "We greatly appreciate the close cooperation of the government of Algeria in receiving one of its nationals from Guantnamo," Cliff Sloan, the State Department's special envoy for the prison's closing, said in a statement. "Today's transfer represents another step in our ongoing efforts to close the detention facility at Guantnamo." A leaked threat assessment file for Mr. Bel Bacha completed in 2005 says he was a veteran of the Algerian Army who later attended the Finsbury Park mosque in London, then known as a center of radical Islamism. At the time, its imam was Mostafa Kamel Mostafa, a fiery speaker also known as Abu Hamza al-Masri, who was extradited to the United States in 2012 and charged with terrorism offenses. The shoe-bomber Richard Reid and Zacarias Moussaoui the only person to stand trial in the United States for the Sept. 11, 2001, attacks also attended the mosque during Mr. Mostafa's tenure. In early 2001, Mr. Bel Bacha went to Afghanistan and, according to the file that was leaked, received weapons training at a militant camp there. When the American bombing campaign began, he fled to Pakistan, was captured by Pakistanis and turned over to the United States. Although the task force had recommended him for transfer, Mr. Bel Bacha was among dozens of detainees on that list who remained stuck at Guantnamo as the Obama administration's efforts to whittle down the inmate population stalled. But last year, after a major hunger strike at the prison, President Obama renewed his efforts to close it, appointing Mr. Sloan and a counterpart at the Pentagon, Paul
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Lewis, to help achieve that goal. "The transfer of this Algerian national from Guantnamo Bay is another step forward in our effort to reduce the population and close the detention facility responsibly," Mr. Lewis said. "I would like to thank Special Envoy Sloan's office and the many others who worked on this transfer. Their work is greatly appreciated." In 2007, Mr. Bel Bacha asked a court to prevent the United States from sending him back to Algeria, saying he feared that he would be abused by its government. The two detainees repatriated in December were sent home involuntarily, but American officials said Mr. Bel Bacha did not object to his repatriation. Mr. Bel Bacha was also one of four plaintiffs in a case challenging the military's procedures for force-feeding detainees on a hunger strike. The detainees were strapped into a restraint chair, and a gastric tube inserted through their noses was used to pour a liquid nutritional supplement into their stomachs. A federal appeals court decided last month not to block the force-feedings for now, but in what could be a more significant step, ruled that the judiciary had jurisdiction to hear complaints over prison conditions at Guantnamo. This week, lawyers for detainees filed a new case challenging the procedures. Mr. Obama had vowed to close the prison within a year after he took office, but that goal proved more difficult than he had anticipated. Congress blocked his plan to move some of the detainees to a facility inside the United States and warning that some former prisoners had participated in new terrorist activities imposed steep restrictions on transfers to countries where security was considered lax. Transfers of low-level detainees dried up in the final two years of Mr. Obama's first term, and the State Department reassigned the envoy charged with negotiating transfers and did not replace him. Mr. Bel Bacha's departure leaves two Algerians at Guantnamo. Both were recommended for prosecution by the 2009-10 task force, although neither has been charged. Obama Urges Hard Work for Mideast Peace The Washington Post By Anne Gearan March 17, 2014 With Mideast peace talks at a crisis point, President Obama on Monday urged a noncommittal Palestinian leader to make what he called "very hard" decisions to keep the U.S.-backed negotiations moving toward an elusive Israeli-Palestinian peace deal. "We're going to have to take some tough political decisions and risks if we're to move it forward," Obama said at the start of an Oval Office meeting with Palestinian Authority President Mahmoud Abbas. "My hope is that we can continue to see progress in the coming days and weeks." A U.S.-imposed deadline for Israel and the Palestinians to agree to an outline for a peace deal is approaching at the end of April. Secretary of State John F. Kerry wants both sides to agree to a set of principles that would guide the final negotiations on long-standing issues such as the borders of a future Palestinian state and whether
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its capital would be in East Jerusalem. The talks are at an apparent impasse over Israel's insistence that a peace deal include Palestinian recognition of Israel as a "Jewish state." Abbas railed against the demand not an express part of past failed negotiations ahead of his visit to Washington. "Time is not on our side, especially given the very difficult situation that the Middle East is experiencing and the entire region is facing," Abbas said Monday. In a reference to the "recognition" sticking point, Abbas added: "Since 1988, we have recognized international legitimacy resolutions, and this was a very courageous step on the part of the Palestinian leadership. And in 1993, we recognized the state of Israel." Abbas met with Kerry before and after his session with Obama. The top U.S. diplomat is trying to hold both sides to their commitment to remain at the table. The Palestinians agreed to refrain from seeking further statehood privileges through the United Nations during the negotiations, and Israel agreed to release Palestinian prisoners, including some convicted of killing Israelis. Both concessions were unpopular with political hard- liners. The final and most politically sensitive prisoner release is due March 29. As the deadline approaches, Kerry has repeatedly put off a trip to Jerusalem and the West Bank to nudge talks along, in an apparent attempt not to stir up domestic opposition to the deal in either place. He has instead met with negotiators and leaders in Washington or Europe. Kerry also signaled recently that the "Jewish state" issue is a major roadblock. He angered some Israeli leaders when he said in testimony before the House Foreign Affairs Committee that he thinks it is "a mistake for some people to be, you know, raising it again and again as the critical decider of their attitude towards the possibility of a state and peace." Formal recognition of a Jewish state is deeply unpopular among Palestinians. They fear that such a move could undermine the claims of Palestinians and their descendants who left homes in what is now Israel at the founding of the state more than 60 years ago. Palestinians also argue that codifying Israel's Jewishness in a treaty could harm Israel's Arab minority. Israeli Prime Minister Benjamin Netanyahu drew loud applause two weeks ago when he told the American Israel Public Affairs Committee in Washington that Palestinians have "no excuses" to put off recognizing Israel as a Jewish state. Guantnamo Prosecutors: How Did KSM 'Propaganda' Document Get Out? Miami Herald By Carol Rosenberg March 18, 2014 The war court prosecutor has asked the Sept. 11 judge to investigate how Huffington Post and a British television station got a copy of some commentary by the alleged 9/11 mastermind, Khalid Sheik Mohammed. The emergency motion itself was still under seal Tuesday at the war court website. But Army Brig. Gen. Mark Martins and his fellow 10 prosecutiors divulged its
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contents in a correspondence to Sept. 11 victims' family members distributed by the Pentagon's victims liaison, Karen Loftus. In January, The Huffington Post and Britain's Channel 4 published 36 pages of computer printout commentary much of it invoking religious themes on a range of religious and social topics attributed to Mohammed. In it, the author quotes the Koran, Richard Nixon and the Bible and offers a range of opinions on current events from same-sex marriage, which he opposes, to the U.S. military suicide rate, which he blames on conspicuous U.S. consumption in impoverished Afghanistan. It was dated in October and apparently written at Guantnamo's secret prison for former CIA captives, from which little news emerges. The copy posted by Huffington Post bore no markings to indicate the document was secret although page 7 appears to have a self-styled redaction, a white-out strip or piece of surgical tape that could be covering up a name. While the judge in the case has ruled that not everything a former CIA captive says is necessarily classified, their writings and lawyers' motions are considered classified until an intelligence agency decides which portions to black out. At the prison, a spokesman, Navy Cmdr. John Filsotrat, said he was "unaware" of any internal investigation by detention center staff into how the document came to light. But separately the 9/11 judge, Army Col. James Pohl, may have the authority to investigate whether the disclosure violates a protective order on the release of information in the trial of Mohammed and four co-defendants. The five men are accused of orchestrating the attacks of Sept. 11, 2001, that killed nearly 3,000 people, and the Pentagon prosecutor seeks their execution if they are convicted. The prosecutor said the still-sealed emergency motion, filed March 3, asks the judge "to inquire of the Defense as to how this letter was released, and to take action to ensure that the Commission process cannot be used to inappropriately disseminate propaganda." The Sept. 11 trial is currently in the pretrial phase with the judge still hearing fundamental issues on what part of the Constiution might apply at the war court here, how much of the trial will be held in secret or argued through substitutions for classified evidence and how much evidence the defense teams can actually obtain. Pohl brought the hearings to a halt in December at the request of the prosecution to clarify whether one of the alleged plotters, Ramzi bin al Shibh of Yemen, is mentally competent to stand trial. He repeatedly disrupted the last round of hearings with accusations that U.S. troops were causing noises and vibrations in his secret prison cell in a sleep-deprivation campaign. The next hearings are scheduled for four days in April to tackle the question of Bin al Shibh's competency because, although his lawyers argue he's competent, the Yemeni has refused to submit to a military mental health exam. The prosecution denies that the troops are intentionally disrupting Bin al Shibh's sleep patterns at Camp 7.
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"We have asked that this matter be taken up immediately following resolution of the mental competency matter," Martins wrote. Martins' letter to the Sept. 11 families also acknowledged that the sanity issue derailed the current proposed prosecution timetable of a Sept. 22 trial date. At Huffington Post, reporter Ryan Reilly, who reported on the document, said nobody from the government or prison had ever asked his news organization how the document was obtained.
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South & Central America Colombia

Tensions Flare at Peace Talks Over Military Scandals Colombia Reports By Luke Horswell March 7, 2014 The thickening web of scandals that has enveloped the Colombian military in recent weeks became the subject of verbal sparring at ongoing peace talks between the Colombian government and the FARC rebels. A spokesman for the FARC, Colombia's largest rebel group, commented on the scandals Thursday, saying that Minister of Defense Juan Carlos Pinzon was "not exempt" from the implications of a flurry of reports indicating the military was involved in illegal wiretapping, embezzlement, arms trafficking and obstruction of justice. "In a decent government, an official of this ilk would have already been removed from office," said alias "Ivan Marquez," the leader of the FARC delegation. This provoked an angry response from government representatives at the talks, being held in Havana, Cuba. Chief government negotiator Humberto de la Calle said the comments about the defense minister were "unacceptable" and that the FARC should concentrate on making " less statements and more agreements," reported W Radio. De La Calle also insisted that the government's peace delegation would not lower itself to a verbal boxing match and that the FARC cannot become a judge of the country's institutions and officials. This made for a sour end to Thursday's negotiations, which concluded the 21 round of peace talks. The parties are currently discussing the production and trafficking of narcotics in Colombia, the third of six planned agenda items for the talks, which
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began in November 2012 and hope to reach an end to an armed conflict that has spanned 50 years.
Haiti
Duvalier Attorney in Haiti Files Appeal The Washington Post March 12, 2014 The lead defense attorney for Haiti's former dictator Jean-Claude Duvalier has said judges will be responsible for a "civil war" if an appeals court rules against his client. Privately owned Radio Kiskeya on Wednesday broadcast the remarks by lawyer Reynold Georges, who spoke at Haiti's Supreme Court after filing an appeal Tuesday against a lower court decision that Duvalier can face charges involving human rights abuses. Georges also said he requested the removal of three judges because they were untrustworthy. "If a decision is taken against Jean-Claude Duvalier by the court of appeals," Georges said, "that could cause civil war. The judges will be held responsible and held accountable for the civil war." The judges ruled last month that the Duvalier case warranted further investigation into the human rights abuses that were allegedly committed during the dictator's 15-year reign, which ended with a popular uprising in 1986. The court decision was celebrated by the prosecution because it creates an opportunity for prosecutors to submit more evidence and perhaps even put him on trial. The court found that Duvalier could be charged with rights abuses because Haiti is bound by international law that says there's no statute of limitations for crimes against humanity. Georges said he filed the appeal because Haiti doesn't have a law that recognizes crimes against humanity. "Baby Doc" Duvalier abruptly returned to Haiti in 2011 following 25 years in exile in France. Human rights and embezzlement charges were filed against him but he was never jailed. Duvalier defended his tenure last year when he gave an unexpected testimony. He described Haiti as a better place under his rule.
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TOPICS
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Terrorism
California Man Arrested in Terrorism Case Warned: 'Don't go to L.A.' Los Angeles Times By Victoria Kim and Diana Marcum March 18, 2014 A 20-year-old community college student who lived in a mobile home park near Lodi was arrested Sunday night near the Canadian border after he allegedly told a paid FBI informant he wanted to fight on the side of Al Qaeda in Syria. Nicholas Teausant, a single father to an infant daughter and a failed National Guardsman, was charged with a single count of attempting to provide material support to a foreign terrorist organization and appeared before a federal court in Washington on Monday afternoon. He faces up to 15 years in prison if convicted, according to prosecutors. Federal authorities outlined in an affidavit extensive exchanges between the informant and Teausant, in which Teausant allegedly detailed his desire to travel to the Middle East to join Islamic extremists and harm the United States. Teausant had enrolled as a trainee with the U.S. Army National Guard but never entered basic training because he lacked the minimum qualifications, according to the affidavit. The informant befriended Teausant last fall, posing as a fellow convert to Islam. Teausant told the informant "his goal was maximum fear and a maximum blow to the U.S. government so he could watch it tumble and fall in the wake of a civil war," according to the affidavit. "I'll do the acting, I'll be the pawn. You just figure out the brainy stuff," he told the informant, authorities alleged. In December, he sent a text message to the informant asking how he could obtain fireworks, according to the affidavit. "The big loud one! With the biggest boom and the one that's also compact!!" Teausant allegedly wrote in the message. He then allegedly texted: "Don't go to LA Anytime soo[n] Please trust me on this and if you do go don't use the subway." Teausant told the source over the phone that he and a group of people had discussed "hitting" the L.A.-area subway on New Year's Eve or New Year's Day, authorities alleged. (The Sacramento-based FBI agent who wrote the affidavit pointed out in a footnote: "While not well known, there is a subway/rail system in Los Angeles.") Teausant later said the plot had been called off because authorities had been tipped off, according to the affidavit. Online, authorities allege Teausant took on a different persona than community college student and single dad. On Instagram, he was "Assad Teausant bigolsmurf," who posted that he despised the U.S. and that he wanted "to join Allah's army but I don't even know how to
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start." On ask.fm, he was "assadthelion" who wrote, "how do you bring america to its knees?" On Facebook, he allegedly met "brothers" with whom he discussed a plot to blow up the Los Angeles County subway system. It's not clear how seriously authorities took the threat Teausant allegedly said he discussed the plot on a camping trip with seven people, but the agent wrote in the affidavit that "the investigation has not corroborated the camping trip." A Metropolitan Transportation Authority spokesman declined to discuss whether the agency had been alerted to the threat or measures were taken in response. A spokeswoman for the FBI in Los Angeles said in a statement: "Throughout the investigation, the Joint Terrorism Task Force in Los Angeles worked closely with the JTTF in Sacramento to assure the safety of the Los Angeles area." Grand Mufti Ratifies Execution Verdict for 26 Accused of Terrorism Daily News Egypt By Yasmin Sameh March 19, 2014 Grand Mufti Shawqi Ibrahim approved Wednesday an execution verdict for 26 people convicted in absentia of forming a terrorist cell that targeted the Suez Canal. In a statement released by the Cairo Criminal Court, the Mufti said, in his religious opinion, the verdict is valid because the crime has been proven with undisputed evidence. "Since laws are designed to reform society, they must be judged in public," the Mufti said. "The height of corruption is threatening people's security and assaulting their property." The court sentenced 26 of 27 convicts to death. The remaining defendant was sentenced to serve 15 years in a high-security prison. The alleged "terrorist cell" is accused of targeting ships and barges passing through the Suez Canal, and bombing security headquarters. They have also committed crimes in Cairo, Daqahleya, and Damietta governorates, according to state-owned Ahram. Police investigations concluded that the group was in possession of fir arms, ammunition, and melee weapons. The group was active between 2004 and 2009 in such areas as Nasr City, Mansoura, Talkha, and New Damietta, according to AlAhram. Attorney General of the Supreme State Security Prosecution Khaled Dia'a Al Din oversaw the referral of the case, which was conducted by Supreme State Security Prosecution. Florida Man Pleads Guilty to Terrorism Charges The Washington Post March 19, 2014 A 20-year-old Florida man pleaded guilty Wednesday to conspiring to aid al-Qaida and traveling to the Middle East to join terrorist groups, prosecutors said.
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Shelton Thomas Bell pleaded guilty to conspiracy to provide material support to terrorists and attempting to provide material support to terrorists, the U.S. Attorney's Office in Jacksonville reported. He faces up to 30 years in prison. A sentencing date has not been set. "Working with our law enforcement partners to prevent terrorism and promote national security is a top priority," U.S. Attorney A. Lee Bentley III said in a news release. "We are thankful that this investigation was resolved without harm or injury to any citizens, at home or abroad." An indictment said Bell planned to join Ansar Al-Sharia, another name for al-Qaida in the Middle East region. The group has taken responsibility for attacks on Yemeni forces, including a suicide bombing during a May 2012 parade that killed more than 100 soldiers. Bell participated in physical, firearm and other training in Florida to prepare for armed conflict, federal agents said. Bell was also accused of soliciting others to travel overseas with him to train. In September 2012, Bell and a juvenile went to Amman, Jordan, and made contact with someone who investigators said could help them travel to Yemen to participate in violent jihad, according to the indictment. The indictment does not say whether Bell ever entered Yemen. Bell and the juvenile were eventually deported from Jordan to the United States in November 2012, authorities said. Bell was arrested in the Jacksonville area on state charges in January 2013. He had built a computer-repair business with a partner and opened a booth at a flea market. Bell disappeared with several computers and thousands of dollars in cash from the partner, authorities said. Police suspected Bell later sold the computers. The partner told police he had known Bell for about a year and they had an arrangement in which the partner would buy broken computers, give them to Bell to fix, and they would split the profits. Bell was still being held in the Duval County jail in Jacksonville in July 2013 when a grand jury indicted him on the terrorism charges. "Stopping these threats from within is the grim reality we deal with today," FBI Special Agent in Charge Michelle S. Klimt said in the release. "This case serves as a reminder that terrorist-related activities can occur anywhere. It also shows that we will use all the resources at our disposal to root out the individuals posing these threats to keep America safe."
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Piracy
Anti-Piracy Warship INS Sumedha Commissioned at Vasco
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The Times of India By Anisha Francis March 8, 2014 INS Sumedha, the country's most advanced class of offshore patrol vessel (OPV), was officially commissioned by the Indian Navy in a glittering ceremony at Vasco on Friday. At 105m long, Sumedha is the largest indigenously constructed ship, designed and built by Goa Shipyard Limited (GSL). The vessel was commissioned by vice admiral Anil Chopra, flag officer commanding in chief of the Eastern Naval Command, Visakhapatnam, considered a top contender to be India's next naval chief. Unveiling the nameplate of the vessel, vice admiral Chopra said, "The INS Sumedha has benefited from the feedback given on the last two OPVs built by this fine shipyard. It has fared brilliantly in all the sea acceptance trials and with its long sea legs, will prove a valuable asset in the navy's antipiracy operations across the West Pacific, Eastern Africa and the Gulf of Aden." In accordance with maritime traditions, the commanding officer of the ship Anand E Kulkarni read the 'commissioning warrant' after which the national flag and the commissioning pennant were hoisted for the first time. To the rhythm of the Navy's marching band, the ship was dressed with various colorful flags. This vessel is the third of GSL's Saryu Class patrol vessels commissioned by the Indian Navy after INS Saryu and INS Sunayna. It is built to accommodate eight officers and 105 sailors. "The ship will help meet the Indian Navy's requirements for undertaking ocean surveillance and surface warfare operations in order to prevent infiltration and transgression of maritime sovereignty. It is suitable for escorting high value ships, monitoring sea lanes of communication, defence of offshore oil installations and other critical national assets," explained rear admiral Shekhar Mittal, chairman and managing director, GSL. The warship's armament consists of one 76.2mm super rapid gun mount (SRGM), AK360 close-in weapon system guns and six kavach chaff launchers. It is also designed to operate one chetak helicopter. On commissioning, the vessel will join the Eastern Naval Command at Vizag, the sword arm of the Indian Navy. Counter-Terrorism, Piracy High on Radars of India, Sri Lanka, Maldives First Post By Rajeev Sharma Mar 9, 2014 Strategic diplomacy is one area which is always work in progress and this work goes on despite local political scenarios. The Indian diplomatic and strategic establishments continue to be hyperactive even though the country is in the middle of general elections and foreign governments are staying engaged with the UPA government despite political projections that the UPA is unlikely to be in government by 1 June. One such work-in-progress was the third National Security Advisor (NSA)-level Trilateral Meeting on Maritime Security Cooperation between Maldives, Sri Lanka and India on 6 March in New Delhi, an event which expectedly failed to rule the media outfits' TRP. Yet, the event was fairly important for obvious politico-strategic reasons. First of all, it is of vital interest for India that India maintains its prime status in the Indian Ocean. This comparatively new process of trilateral maritime security, which
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features Sri Lanka and Maldives along with India, is a baby step towards that goal and hence its importance. Equally importantly, this event cements New Delhi's closer security ties with Colombo and Male. India has had running contentious issues and controversies with each of its two partners. This event provides an important platform for the three South Asian countries to stay engaged on security and strategic issues. Then there is the inevitable China factor, the perennial elephant in the room in any South Asian discourse. China is not an Indian Ocean power and yet Beijing has been continuously enlarging its strategic footprints in the region. This is an important red flag for the Indian strategic establishment. The trilateral maritime cooperation involving India, Sri Lanka and Maldives can do precious little to keep the Chinese out of the Indian Ocean nor is it the raison d'tre of this small club. But through this process, the three neighbours are keeping in close touch on vital maritime security issues which they would not have done had this process not started in the first place. Also, this unassuming loose formation is set to expand further in the near future with probable inclusion of Mauritius and Seychelles which attended the 6 March event hosted by India as observers. The clout and capabilities of this process would be significantly enhanced once Mauritius and Seychelles are made full-fledged members of this NSA-level dialogue. During the third NSA-Level meeting in Delhi, the participants reviewed and expressed satisfaction over the progress in the implementation of various activities in the identified areas, according to the Indian Ministry of External Affairs. They also discussed new areas of cooperation including hydrography; training in "visit, board, search and seizure operations" training on board Indian sail training ships; exchanges between think tanks; and joint participation in adventure activities. Indian National Security Advisor Shivshankar Menon led the Indian delegation and chaired the meeting. The Maldivian delegation was led by Col (Retd) Mohamed Nazim, Minister of Defence and National Security, and the Sri Lankan delegation by Gotabaya Rajapaksa, Secretary, Ministry of Defence and Urban Development. Delegations from Mauritius and Seychelles also participated in the meeting as Guest countries. Motichand Seebah, Permanent Secretary in Prime Minister's Office, represented Mauritius, while Ambassador Maurice Loustau-Lalanne, Principal Secretary, Ministry of Foreign Affairs, represented Seychelles. India, Sri Lanka and Maldives launched the Trilateral Cooperation in Maritime Security in October 2011 at the first NSA-level Trilateral Meeting on Maritime Security Cooperation in Maldives. Since then it has become an annual event. Shivshankar Menon put the things in perspective succinctly with these remarks: "If you look at the Indian Ocean, today over a 100,000 ships pass through the Indian Ocean every year. Something like 66 per cent of the world's oil cargo, over 50 per cent of the world's container traffic, and something like 33 per cent of the world's bulk cargo go through the Indian Ocean every year. So it is very important to our economies and
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in terms of security for all of us. And it is not an issue that any single country can actually solve on its own. So we decided to see what we could do." This body is focusing essentially on three big areas: (i) trying to keep a tab on what is going on in the Indian Ocean, (ii) inculcate maritime domain awareness and (iii) to share information on what is happening in real time between the member countries. "We have now actually put in place the systems so that we can share; we see the same picture of what is going on in the maritime area around us. We have trained our people we have nominated; we are putting in place the hardware so that we can share that information. The IMO (International Maritime Organization) has a system, for instance a long-range identification and tracking system for ships. We also have our own automatic identification system data which we now have one platform on which we will be sharing," Menon said. The next big step for this trilateral maritime cooperation would be its expansion by taking Seychelles and Mauritius in its fold. The two countries attended the Delhi event as observers for the first time and both have evinced their keenness to join the body. The trilateral effort is a commendable step as it enhances practical cooperation among the member countries' coastguards, navies and various institutions concerned with maritime security. A concrete deliverable of this trilateral effort is that they now have in place a platform which will actually enhance concrete responses to situations as diverse as piracy, pollution, drug running or counterterrorism. Counter-terrorism and piracy are on the front burner of this trilateral cooperation. This is what Shivashankar Menon had to say about these two issues: "Counterterrorism is still obviously an interest for all of us. When I say that we share information and we also consider joint action against illegal activities, it includes terrorism. But the immediate threat that we have been facing in the last few years was piracy. That fortunately at least in the Arabian Sea and off the Horn of Africa is down, due to a variety of factors not just what the three of us are doing with this, the whole world has been actually working at that problem. But even though the numbers may be down and it might have decreased because of the effort that we have put in, the primary source of the problem, which is on land, has not been solved." Piracy: Some Safer Shores The Africa Report March 10, 2014 Captains navigating the Gulf of Aden have heaved a sigh of relief following a recent report by The International Maritime Bureau (IMB). But the Gulf of Guinea is fast appearing on the radar as a growing piracy hotspot. IMB reports that hijacking incidents off the coast of Somalia fell to 15 events in 2013, compared to 75 in 2012 and 237 in 2011. Just two of those hijack attempts were successful, and the attackers released both ships the following day.
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Good news stories about Somali pirates recycling themselves into other professions abound, perhaps because of the dense network of middlemen who got a cut of the action. The World Bank says companies paid between $315m and $385m in ransoms there since 2005. While the decrease in East African piracy is celebrated, piracy in West Africa gets less attention but it is spreading beyond its usual reaches. On 3 January, a ship owned by Spanish company Mart!nez Hermanos disappeared between Malabo and Bata in the waters off Equatorial Guinea. On 30 January, Nigeria's State Security Services announced they had saved the crew who had been taken hostage. Despite the claims of the Nigerian authorities, the government in Malabo confirmed that the Spanish firm had paid a ransom for the release of the ship. And on 18 January, a Nigerian gang used a stolen tugboat to attack the MT Kerala, an oil tanker, off the coast of Luanda the southernmost point yet recorded for West African piracy. Somalia to seek Japan's help to save young boys from life of piracy Global Post March 12, 2014 Somali President Hassan Sheikh Mohamud said Wednesday he will ask the Japanese government to help provide vocational education for young men at risk of falling into a life of piracy. "We want the amount of funds that Japan was putting into service delivery like education to be refocused on providing vocational education centers for those young boys so that they become useful members of society," Mohamud said at the Japan Press Club prior to consultations with Tokyo this week. Piracy in the Gulf of Aden peaked around 2012 and is now "drastically declining," he said, thanks to pressure from international naval and coast guard forces that have patrolled the region, as well as Somali efforts to mobilize community leaders against the crime. "This joint effort has succeeded to make the piracy phenomena almost zero," he said. Nevertheless, Mohamud said, "the root cause for the piracy is still there." Young men who missed out on educational opportunities due to the civil war that raged across the country in the 1990s are "not employable...so, these boys are the bulk of the pirates and they are also the bulk of the fighting force in al-Shabab," he said, referring to the Somalia-based terrorist organization. How to best provide these boys with an alternative to violence is "one of the areas that we are going to discuss with the Japanese government," the Somali president said, adding that he also planned to talk about bilateral cooperation in other areas. Mohamud arrived in Japan on Tuesday for a four-day visit, during which he will meet with Prime Minister Shinzo Abe.
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Gender-Based Violence
Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, Providing and Update on the ICC-OPT Policy Paper on Sexual and Gender-Based Crimes International Criminal Court March 7, 2014 Since assuming my mandate as Prosecutor of the International Criminal Court (ICC), I have made the need to devise and implement a policy on sexual violence and gender based crimes an Office priority. To this end, on 7 February 2014, my Office published a Draft Policy Paper for public comment. I am thrilled and encouraged by the positive and overwhelming public response we have received from various entities, including States, international institutions, civil society, academia and individuals and experts around the world. This once again demonstrates the international commitment and support behind the fight against impunity for sexual violence and gender based crimes. As we mark International Women's Day on the 8th of March, I would like to reiterate that ending impunity for these heinous crimes is a goal that none of us can attain alone: our collective efforts and dedication is the only way we can send a clear, strong and consistent message that in this new century, acts of sexual and gender violence against women, men and children constitute serious crimes, the punishment of which we shall relentlessly pursue at both national, regional and international levels. The mandate of my Office is to address such acts if they amount to international crimes falling under the jurisdiction of the ICC, namely, genocide, crimes against humanity and war crimes. Other instances of sexual violence and gender-based criminality deserve to be equally exposed, recognised and comprehensively addressed by national authorities and other relevant actors. The implementation of the aforementioned policy paper, as finalised, will help our collective efforts to advance justice and to respond to the urgent needs expressed by victims of all forms of sexual violence and gender-based crimes for recognition and accountability. Furthermore, we hope that this policy paper will provide guidance and clarity regarding the on-going and future investigations and prosecutions of these crimes for all relevant actors. I would like to take this opportunity to thank all those who have provided us with their invaluable input on the policy paper. My Office is working assiduously to review, consider, and incorporate your suggestions, as appropriate, over the coming weeks. A final version of the policy paper will be made public in the near future. We owe a duty to humanity to eradicate sexual violence and gender based crimes, and to erase them from the realm of the possible, once and for all. Together, we can successfully fulfil that pledge.
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Gender-Based Violence in Sub-Saharan Africa Focuses on UN-World Bank Initiative UN News Centre March 10, 2014 As the2014 session of the United Nations Commission on the Status of Women got under way today, the head of the UN Population Fund (UNFPA) spotlighted the agency's joint efforts with the World Bank to address the multidimensional challenges that women and girls face in Africa's Great Lakes and Sahel regions. "These two regions are similar because they represent the future of Africa, you see young people everywhere, vibrant, wanting to make a difference in their own lives, the lives of their communities and in the lives of their countries," said UNFPA Executive Director Babatunde Osotimehin in an interview with the UN News Centre ahead of a high-level panel discussion on "Gender-Based Violence in the Great Lakes and Population Dynamics in the Sahel Region." The CSW panel is scheduled to feature Dr. Osotimehin, as well as several officials from sub-Saharan countries: Antonin Dossou, Minister for the Evaluation of Public Policies and Denationalisation Programmes of Benin, Genevieve Inagosi, Minister of Gender, Family and Child of the Democratic Republic of Congo, Maikibi Kadidiatou Dandobi, Minister of Population, Promotion of Women and Protection of Children of Niger, and Trina S. Haque, Sector Manager for World Bank Health, Nutrition and Population in West and Central Africa. In his interview with UN News Centre, Dr. Osotimehin said: "When you look at the two regions, one of the things that I believe is common, is the issue of the adolescent girl who is not going to school, who is not being empowered, who doesn't have access to skills, education or the ability to be able to determine who she wants to be." The World Bank/UNFPA special focus on women's empowerment in sub-Saharan Africa was born following a 2013 historic trip to Africa by UN Secretary-General Ban Ki-moon and Jim Yong Kim, President of the World Bank Group. The purpose of the trip in which Dr. Osotimehin took part was "to send a signal that peace and security must go with development." The purpose of the trip in which Dr. Osotimehin took part was "to send a signal that peace and security must go with development," and "the World Bank saw an opportunity in investing in women and young people. An additional $1 billion was invested in the region by the Bank. We came back very enthusiastic, exhilarated about those possibilities." It was very disturbing to notice that great degree of gender-based violence, often related to the conflict in the eastern part of DRC, he continued, adding that the officials felt that "if girls go to and stay in school, and if they are able to learn about sexual and reproductive health, and if they are able to make choices, then we can actually stop a lot of that gender-based violence." "Going forward we also want to make sure "girls and boys have access to skills, entrepreneurship training and the ability to secure jobs and start businesses themselves," said Dr. Osotimehin. UNFPA is in consultations with the Bank to take this forward. "This is the first time that this is happening." Indian Court Stays Hanging of 2 Rape Case Convicts
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Associated Press March 15, 2014 India's top court on Saturday temporarily stayed the hanging of two of the four men convicted for the 2012 gang rape and murder of a young woman on a bus in New Delhi. The Supreme Court's order came in response to a petition filed by an attorney for the two men that said the appeals court that confirmed the death sentence this past week had completely ignored their defense. The court scheduled a hearing in the case for March 31. An attorney for the other two convicted men, who also face the death penalty, said he would approach the court soon. A special fast track court had sentenced the four men in September, saying their crime was one of the rarest of rare cases that warranted the death penalty. On Thursday, the Delhi High Court dismissed the appeals filed by the men and said it "affirmed" the sentence given by the lower court. The 23-year-old medical student and a friend were returning home from a movie when the men tricked them into boarding a bus they were joy-riding. They beat the friend into submission, held the woman down and took turns raping her. They also penetrated her with a rod, causing severe internal injuries that led to her death two weeks after the December 2012 attack. The brutality of the crime unleashed a wave of public anger over the treatment of Indian women and a long-unspoken epidemic of sexual violence in the country. All six men involved in the attack were arrested soon after the attack. Police say one of the men hanged himself in prison. Another man an 18-year-old who was a juvenile at the time of the attack was convicted and ordered to serve three years in a reform home. Launch of Gender-Based Violence Emergency Response and Protection Initiative U.S. Department of State March 17, 2014 Acting Assistant Secretary Uzra Zeya for Democracy, Human Rights, and Labor will launch the Gender-Based Violence (GBV) Emergency Response and Protection Initiative on March 20, 2014, at the Department of State. This first of its kind, global emergency response program will provide fast, flexible, and immediate assistance to address the urgent needs of survivors of severe gender-based violence, as well as individuals under credible threat of imminent attack due to their gender. The program will also work to improve the implementation of anti-GBV laws through the Global Partnership to End Violence Against Women. At 12:30 p.m. Deputy Secretary Burns will deliver remarks, followed by Alyse Nelson, President and CEO of Vital Voices; Sheri McCoy, CEO of Avon Products, Inc.; and singer Fergie, Avon Foundation for Women Global Ambassador. Remarks are scheduled to end at 1:00 p.m.
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This State Department-sponsored program will be managed by a consortium of NGOs and international organizations who are experts on GBV issues in various fields and led by Vital Voices Global Partnership. The Avon Foundation for Women supports Vital Voices and is sponsoring the launch event. London Mayor Calls for More Action Against FGM International Federation of Gynecology and Obstetrics By Martine Ward March 19, 2014 The mayor of London has insisted more needs to be done to stop female genital mutilation (FGM) being carried out. Speaking to BBC News, Boris Johnson described the procedure as "absolutely intolerable", but said agencies in the UK capital are too nervous to address the issue effectively. "It's time to stop being so hesitant," he commented. Mr Johnson confirmed that he is working to introduce a pilot scheme designed to improve how officials in London deal with the practice, which he described as "completely barbaric". "This is a crime basically outlawed in the early to mid-1980s and yet we have not had one single successful prosecution," he said. Mr Johnson was speaking after NHS figures obtained by BBC London 94.9 revealed that in the last five years, nearly 4,000 females have been treated in hospitals in the capital for FGM.
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REPORTS
United Nations Reports

North Korea Refutes UN Report Likening it to Nazi Business Standard February 22, 2014 North Korea has reportedly rejected reports by the United Nations that accused the country of carrying out barbaric war crimes against its own people, comparing it with the Nazi.
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North Korea's foreign ministry said that the report was based on lies and fabrications deliberately cooked up by hostile forces and riff-raffs. The ministry added that the report was set up by the US and its satellite forces out of inveterate repugnance towards the DPRK (Democratic People's Republic of Korea), the Sky News reported. The UN Commission of Inquiry released its report earlier this week, detailing the crimes committed by North Korea against humanity that included murder, torture, rape, starvation and the suppression of religion. India Likely to Back UN War Crimes Investigation of Sri Lanka Press TV By Tim King February 24, 2014 A leaked report from India states that the government will back the inquiry into war crimes against Sri Lanka when the case reaches the United Nations Human Rights Commission (UNHCR) next month. Sri Lanka was convicted of Genocide The Permanent Peoples' Tribunal Session II 7th 10th December 2013, in Bremen, Germany. This was the straw that broke the camel's back. "The Tribunal found that genocide against the Eelam Tamil group has not yet achieved the total destruction of their identity. The genocidal coordinated plan of actions reached its climax on May 2009, but it is clear that the Sri Lanka Government project to erase the Eelam Tamil identity, corroborated by the above mentioned conduct, shows that genocide is a process and that process is ongoing". Sri Lanka's government was heralded for its 2009 defeat of the Liberation Tigers of Tamil Eelam (LTTE), but years of reports of severe war crimes against the "Tamil Tigers" are coming home to roost. All of denials of responsibility Sri Lanka has become famous for, will mean little once the case reaches the United Nations Human Rights Commission (UNHCR) next month. The LTTE was essentially a band of revolutionaries and like the Americans in the Revolutionary War, they diversified from standard military tactics. The Tamil Tigers, however imperfect, was formed to protect the Tamil people from a government focused on ethnic cleansing, and establishing an all Buddhist nation. The "Tamil Tigers" were declared a terrorist organization, by 32 different countries over time. Sri Lanka declared that the LTTE was a terrorist group from January 1998 to 4 September 2002, when a cease fire was declared. As the government prepared an all out effort to defeat the LTTE during the final phase of the nearly three-decade long civil war, it again designated the LTTE as a terrorist organization on 7 January 2009. This was the launch of the period of torturous Genocide. At this point, India has not fully committed to the process against Sri Lanka; however, the government of Indian prime minister, Dr Manmohan Singh, is under pressure from Great Britain and other countries that have increased lobbying efforts. Analysts believe India will do what it takes to hold onto its Tamil allies as the Spring general election nears. Singh did surprisingly choose to boycott last year's Commonwealth Heads of Government summit in Colombo, succumbing to pressure from key allies, including the Dravida Munnetra Kazhagam (DMK), which is one of
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India's two main parties in the state of Tamil Nadu. Sri Lankan President Majinda Rajapakse Under Pressure Rajapakse will in the end, have an impossible task; that is explaining the countless atrocities that were carried out against Tamils in the final stages of Sri Lanka's civil war. Driving the matter forward, is UN Human Rights Commissioner Navi Pillay. The timing of the release of her 20-page submission to both the United Nations and the Sri Lankan government, happened less than three weeks before a highly anticipated UN meeting in Geneva where the UK and US are expected to propose a formal war crimes inquiry. The United Nations' human rights chief has called for an international war crimes investigation into alleged atrocities carried out in the final stages of the Sri Lankan civil war, according to reports. There are consistent findings that the LTTE also committed human rights abuses and war crimes. While the evidence of the acts of the Sri Lankan Army are well documented, far less evidence exists to demonstrate the LTTE's wrongdoings. In an interview with Asian Human Rights Commission last year, Navi Pillay, said Sri Lankan Tamils feel completely threatened by the very heavy military presence there. As has been reported many times, the Sinhalazation process by the Buddhist govt. of Sri Lanka is a continuing element of the ethnic cleansing process that has been underway in Sri Lanka for decades. Pillay said, "I met about 700 people in IDP camps, all of them has been fishing folk or planted rice on paddy fields and their lands have been confiscated without compensation, some of them said that the military have built their structures over that." The UN Human rights Commissioner cited huge levels of insecurity, fear, and surveillance. "I saw that for myself. People whom I'd interview such as a Jesuit priest, a Christian father were immediately visited by the military even while I was still in the country and I complained to the Government about this." Sri Lanka will long be known for its atrocious acts against Tamil civilians who were directed to enter so-called "No Fire Zones" and then ruthlessly attacked by artillery. Some of the rounds fell on and near a UN compound in the Vanni, perhaps this grinds at Pillay's heart, along with the fact that the UN's decision to pull its observers from the ground in Sri Lanka in 2009 basically facilitated the Genocide of up to 160,000 people. LLRC: Sri Lanka's Lost Opportunity In the wake of the violence in Sri Lanka, the government directed the creation of the Lessons Learnt and Reconciliation Commission, which went to work and created a massive report detailing some of the abuse, treading lightly though on Rajapakse's military mission. The report assessed plenty of blame on the LTTE, referred to many of the dead as "human shields". Had Sri Lanka followed the LLRC, it may have shown an adequate degree of responsibility, but it did not. Instead the government has consistently scoffed at the idea of being accountable for crimes it says never happened. In fact the thousands of dead Tamils, according to the govt. of Sri Lanka, were all victims of the Tamil Tigers, which is an impossible claim as the acts of Sri Lanka's army were heavily witnessed, and former soldiers of this army have provided some of the most damning evidence against the government themselves.
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The allegations against Sri Lanka include sex crimes and mutilation, responsibility for thousands of dead prisoners, thousands of Tamils locked away in camps never to be seen again, and even darker things like torture and using rape as a weapon against both men and women. Sri Lanka is famous for using white vans to abduct and murder journalists who write negatively about the Rajapakse regime, and the murdered journalists are not all Tamil. Pillay is only one world leader who tired of the Rajapakse regime's flippant attitude. This all takes place with the United States in an interesting rebound. The US and UK are both considered to be complicit in the Genocide itself, according to the ruling of The Permanent Peoples' Tribunal. Officials in Washington DC were aware of the slaughter of Tamils in 2009 and it did not raise their voice. If India ultimately joins this quest to force Sri Lanka to accountability, it will undoubtedly give confidence to a battered Tamil population. Sri Lanka Rejects UN War Crimes Probe as More Bodies Found in Mass Grave The Telegraph By Dean Nelson February 25, 2014 More than forty new bodies were found in a mass grave in Sri Lanka's Tamil north, officials said on Tuesday, after the government rejected a UN call for an international inquiry into alleged war crimes. The discovery of the grave in Mannar, a key battle zone in the last stages of Sri Lanka's long civil war, will increase pressure on the United Nations Human Rights Council to support an independent war crimes investigation when it meets in Geneva next month. Eighty bodies, including those of children, have now been recovered there and another mass grave with 155 bodies was discovered in 2012. The report by the UN High Commissioner for Human Rights, Navi Pillay, highlighted these mass graves in her report and said they demonstrated the "magnitude and gravity of the violations alleged to have been committed" by both sides. The thousands of civilians killed in the last months of the war in 2009 and allegations of summary executions of surrendering or arrested Tamil Tiger leaders demanded an independent investigation, the report said. The UN believes 40,000 Tamils were killed in the last months of the war before the defeat of the LTTE in May 2009. Many of them were killed in Army shelling of civilians in official "no-fire zones". David Cameron, the prime minister, and other leaders had warned President Mahinda Rajapaksa at last year's Commonwealth Heads of Government Meeting in Colombo that there would be an international inquiry if Sri Lanka did not launch its own credible and independent inquiry before March 2014. Ms Pillay effectively called time on its delays when her report calling for an international investigation was released late on Monday evening. Its failure to launch "independent or credible investigations," reflected a lack of political will, it added. It cited political interference in the judiciary, continuing disappearances and intimidation of witnesses as further reasons for an international inquiry which would guarantee witness protection.
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"The international community has a duty to take further steps, which will advance the right to truth for all in Sri Lanka," the report said. Its criticisms of Sri Lanka's own reconciliation attempts were rejected by the government which said the report "reflects bias and is tantamount to an unwarranted interference in the internal affairs of a sovereign state". Critics said Sri Lanka is hoping that support from China and Russia might help it defeat the war crimes inquiry proposal at the Human Rights Council meeting next month. But they will not be able to veto the proposal if a simple majority of the 47 council members support it. Gordon Weiss, the UN's former Sri Lanka spokesman and author of The Cage, an account of the slaughter of civilians in the last months of 2009, said he believed the allegations are credible and must be investigated. "There's a simple reason these allegations have been repeated for years: They have merit. An independent international investigation will answer questions the government of Sri Lanka has proven incapable or unwilling to resolve," he said. UN Rights Boss Seeks International Probe into Sri Lanka War Crimes Global Post By Stephanie Nebehay February 25, 2014 The U.N. human rights chief called for an international inquiry into war crimes committed by both sides during Sri Lanka's civil war, saying the government had failed to do its own credible investigation. In a much anticipated report ahead of a U.N. Human Rights Council debate next month that could order action on the issue, Navi Pillay on Monday recommended an "independent, international inquiry mechanism, which would contribute to establishing the truth where domestic inquiry mechanisms have failed". U.S. plans to propose a resolution against Sri Lanka at the meeting and Pillay's report, based on her visit to the country last August, add to pressure on the government. President Mahinda Rajapaksa's administration, in 18 pages of comments as long as Pillay's report, rejected the recommendations as "arbitrary, intrusive and of a political nature". Many thousands of civilians were killed, injured or remain missing after the 25-year conflict between government forces and separatist Liberation Tigers of Tamil Eelam (LTTE) in the north of the island that ended in May 2009, Pillay said in her report to the Geneva forum. She said there had been little progress in establishing accountability for "emblematic" wartime crimes, including the January 2006 killing of five students on a beach and the execution of 17 aid workers later that August. "None of these cases has ... resulted in the perpetrators being brought to justice," she said. Conclusions of a national Lessons Learnt and Reconciliation Commission have been rejected or ignored, such as its finding that the army was responsible for shelling civilian areas, Pillay said.
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Her report did not just direct criticism to the government, but also suggested Tamil Tiger rebels ought to be investigated for any involvement in some of the incidents. "The High Commissioner (Pillay) is also concerned that legal proceedings have not begun against any LTTE suspect for alleged war crimes or other human rights abuses," the report said. The report also focused on allegations of abuses after the end of the conflict, although the government says the country is on the path to reconciliation helped by fast economic growth. It drew attention to concerns that women were vulnerable to sexual harassment and violence when there was a heavy military presence, such as in the northern Tamil heartland, an allegation rejected by Sri Lankan government. The government said its survey covering 2007-2012 had shown that a majority of the reported incidents of sexual violence in the north were carried out by close relatives or neighbors and "only a very few could be attributed to the security forces". Pillay also voiced concern at rising attacks by Buddhist monks on minority Muslims and Christians and at harassment of activists, lawyers and journalists. Pillay said she had received information on 280 incidents of threats and violence against Muslims and 103 against Christians in 2013 alone.
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Non-Governmental Organization Reports

Syria: Squeezing the Lift Out of Yarmouk: War Crimes against Besieged Civilians Amnesty International March 10, 2014 Three years after popular protests drew a brutal response from the Syrian authorities, leading to internal armed conflict, a quarter of a million civilians are living under siege in Syria. This report focuses on the situation in Yarmouk, where the siege has had the harshest impact and has caused the largest number of deaths from starvation. When the current crisis began, Yarmouk was home to the country's largest Palestinian refugee community. Thousands of people displaced by fighting elsewhere in of Syria have since arrived to seek shelter there. Sudan: We Can't Endure Any More: The Impact of Inter-Communal Violence on Civilians in Central Darfur Amnesty International March 14, 2014 Eleven years since the start of the conflict in Darfur, civilians continue to
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bear the brunt of human rights abuses by government forces, progovernment militias and armed groups. This report focuses on the impact of inter-communal violence on civilians living in Central Darfur during the fighting between the Misseriya and the Salamat, two Arab tribes, and assesses their situation after they fled to Chad. Amnesty International found that civilians in Central Darfur were deliberately targeted and subjected to unlawful killings, sexual violence, shootings and lootings. <
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TRUTH AND RECONCILIATION COMMISSIONS
Mali
Mali Assembly to Discuss Truth Commission AllAfrica By Anne Look March 12, 2014 Mali's National Assembly is expected to discuss the creation of a Truth, Justice and Reconciliation Commission this week. Human rights groups have expressed concern that the proposed commission will not have the necessary independence to make a difference. The new Mali is a work in progress. The crisis of 2012 and 2013 divided the country like never before, both literally and figuratively. French-led military intervention may have physically reunited much of the country early last year, but communal divisions are far from healed. President Ibrahim Boubacar Keita said national reconciliation is a top priority but first Malians must figure out what exactly happened and why. This week, the National Assembly will debate the legal framework to create a commission to do just that. The proposed commission would have three years to explore crimes committed during this most recent crisis and during previous conflicts in the north. It would go back as far as independence in 1960. A previous commission created last year by the former interim government accomplished little. Its failings left Malians doubting the very idea. Human rights groups said this time the commission must be seen as impartial and representative. Attorney Moctar Mariko is head of the Malian Association for Human Rights (AMDH). He said the mandate of the commission needs to be clearly spelled out and the men and women who lead it cannot have been implicated in the crimes that were committed throughout the country. He said this commission must be
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"truly independent." There is talk of attaching the commission to the relatively new Ministry of Reconciliation and Development for the North. Mariko says that's a bad idea as it would open the commission up to political interference. The proposed commission would have 15 members and seven working groups. International rights group, Human Rights Watch, said Malians should get a say in those appointed. The group said there should be wide consultation with civil society, political parties and other groups along with public confirmation hearings. Human Rights Watch is also calling for the commission to have investigative powers that would allow it to refer cases to the criminal justice system and recommend reparations for victims. The proposed commission would be called the Truth, Justice and Reconciliation Commission. Many Malians said it is exactly the order in which things must happen for this initiative to succeed. Truth, justice then reconciliation.
Nepal
Government Will Rewrite TRC Bill: Acharya eKantipur.com Minister for Law, Justice, Constituent Assembly and Parliamentary Affairs Narahari Acharya has said the government will rewrite the Ordinance on Investigation of Disappeared Persons, Truth and Reconciliation Commission in line with the Supreme Court order. The SC in January had ordered the government to amend the Ordinance with provision of two separate commissionsTruth and Reconciliation Commission and the Commission on Enforced Disappearances, blanket amnesty on serious crimes, and criminalisation of serious human rights violations, among others. As the Law Ministry has been working on replacement bills, Acharya hinted that the ministry would work on separate bills on the Ordinance to address the concerns of conflict victims. "The government is to bring replacement bills to the Ordinance. So the ministry will rewrite the bills incorporating the instruction of the SC and the concerns of stakeholders," Acharya told an interaction organised by Accountability Watch Committee in the Capital on Monday. The government is to bring replacement bills of two dozen ordinances by March 24. Responding to the concerns raised by stakeholders regarding the implementation of the SC verdict on transitional mechanism, Acharya said the new bill will take into consideration victims concerns and legal provisions to set up the mechanism to deliver justice. "We have been studying national and international standards and practices to suit our needs," he said. The Ordinance courted controversy immediately after it was endorsed by the President in March last year. Human rights groups and conflict victims decried the bill, particularly on provision of amnesty and other jurisdictions of the proposed commissions. The government tabled the Ordinance before the Legislature-Parliament without any amendment as ordered by the SC, which some argued, was inappropriate. However, the government insisted the amendment would be made in the replacement bill. "Political parties have mentioned the issue of transitional justice in their manifestos," said Pradip Gyawali, a UML leader, "However, it has not been dealt with as a common agenda."
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Nepali Congress leader Ramesh Lekhak said transitional issues are being pushed back in contesting the contents of the mechanism, which has further victimised the victims. UCPN (Maoist) leader Khimlal Devkota said truth should be established first before going for the execution of war-era crimes. Ministry initiates process to amend local election laws The Ministry of Local Development and Federal Affairs on Monday forwarded a proposal to amend the Local Selfgovernance Act (1995) to the Ministry of Law, Justice and Constituent Assembly in a bid to pave the way for local elections. The proposal seeks amendment to several provisions of the Act concerning the representation of women and others. As per the spirit of the Interim Constitution, the representation of people from all communities has been proposed, the Local Development Ministry said a statement. Forty percent women representation at all the 75 District Development Committees and 58 municipalities has been proposed. Several taskforces formed under the Election Commission and the government have suggested amending the provision of smaller female representation in local bodies. An EC panel tasked with revising local election laws has also recommend at least 40 percent representation of women in local governance bodies. The Local Development Ministry seeks audits in every municipality and VDC from the Office of the Auditor General.
Sri Lanka
UNHRC Members Under US Pressure on Resolution: Sri Lanka The Times of India Sri Lanka on Wednesday claimed that most of the 47 member countries of the UN Human Rights Council are under pressure to back a tough US-sponsored resolution that has called for an international probe into alleged rights abuses during the country's war with Tamil Tiger rebels. "Countries have told us they do not want to pursue Sri Lanka's case. But they want to be seen with the US. Some of them have defence pacts with the US and wider trade links," External affairs minister G L Peiris said. He said the pro-LTTE diaspora possess large sums of money to run the anti-Sri Lanka campaign in order to win over the Western countries. "They collected large sums of money during the war. They still own businesses in many countries," Peiris said. Sri Lanka accused the pro-LTTE diaspora of creating pressure on the UN system to act against it for political reasons. The US-moved resolution, the third in as many years, is to be put to vote at the UN rights body later this month. Sri Lanka has condemned the move as a gross interference on its sovereignty. In the resolution, the US has endorsed recommendations by UN rights chief Navi Pillay for an external probe into charges that Sri Lankan troops killed up to 40,000 civilians during the final months of nearly quarter century civil war against the LTTE that ended in 2009. The previous two resolutions by the US were adopted with India's support. Speaking in parliament earlier in the day, Peiris said that Sri Lanka could easily have avoided action at the UN Human Rights Council had it given in to international pressures. "We have a national pride. So we cannot give in," he said. Meanwhile, the US explained the revised draft text of the resolution to other members and sought their views.
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COMMENTARY AND PERSPECTIVES

Refining al-Skeini v. UK: The ECtHRs Grand Chamber Hearing in Jaloud v. Netherlands EJIL: Talk! By Stuart Wallace March 7, 2014 The Grand Chamber at the ECtHR recently heard the case of Jaloud v the Netherlands. The case raises interesting issues concerning both extra-territorial jurisdiction and the obligations States owe to foreign nationals when deployed in foreign military operations. The facts are reasonably straightforward. The applicants son drove his car through a checkpoint without stopping in Iraq in 2004. A Dutch lieutenant at the checkpoint opened fire, hitting the applicants son who later died of his wounds. No weapons were found within the car. The Dutch forces there investigated the use of force and concluded that the use of force had been justified. Jurisdiction To begin with the jurisdictional issues, any hope that the question of extra-territorial jurisdiction had been settled in Al-Skeini v UK was dashed when both the Dutch and the UK, who acted as third party interveners, presented arguments that the applicants son was not within Dutch jurisdiction for the purposes of Article 1 ECHR when he was killed. In principle there are 2 main forms of extra-territorial jurisdiction: spatial jurisdiction, which arises when the State exercises effective control over some foreign territory and personal jurisdiction, which arises where the State exercises authority and control over an individual. In Al-Skeini v UK, the ECtHR held that the UK was obliged to provide Convention-compliant investigations into the deaths of Iraqi civilians which occurred in the context of UK military operations while it occupied Iraq. The ECtHR applied a jurisdiction model somewhere between spatial jurisdiction and personal jurisdiction by holding that jurisdiction arises when a contracting State exercises all or some of the public powers normally to be exercised [by the government of the State], (Al-Skeini at [135]) and then exercises authority and control over a person. In these circumstances instantaneous acts of UK soldiers, such as shootings, automatically created a jurisdictional link to the State: the United Kingdom [] assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government [] the United Kingdom assumed authority and responsibility for the maintenance of security in South-East Iraq. In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom (Al-Skeini at [149]) The key difference between this model and standard personal jurisdiction is that where the State is exercising some public powers, the ECtHR treats the power to kill and the instantaneous act of killing as authority and control over the individual (discussion of this here and here). Historically, the ECtHR had ruled that instantaneous acts, such as firing a missile from a plane, did not give rise to authority and control over the airstrike victims (see Bankovic and Ors v Italy and Ors). In the case last week, the States stressed that extra-territorial jurisdiction must continue to be exceptional and confined to extremely limited circumstances and not to all foreign military operations. The UK argued that the State was only held to be exercising jurisdiction in Al-Skeini because of the unique circumstances it had full authority and responsibility for the exercise of certain public powers, specifically maintaining security, and the deaths of the applicants relatives in Al-Skeini occurred in course of the UK exercising those powers. Outside of those circumstances, jurisdiction did not exist and the situation of the Dutch forces could be distinguished on many grounds. They had fewer troops deployed and they were under the operational command of the occupying powers. They had a much more limited mandate and role than the UK, with no powers of arrest or detention. The
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Netherlands was not an occupying power and had no role in governing Iraq. In essence, both States sought to deny that the Netherlands was exercising public powers in the same way as the UK in Al-Skeini and this jurisdiction did not arise. This is undoubtedly a myopic view of the situation. The Netherlands was clearly exercising a public power in Iraq by manning and supervising the checkpoints and training the Iraqi soldiers. Establishing checkpoints was a relevant factor in determining whether a State exercised spatial jurisdiction (Issa v Turkey at [75]). Supervising soldiers and manning checkpoints were, to use the terminology of Al-Skeini, some of the public powers normally [] exercised by that Government. The Netherlands also investigated the event, interviewing officers and conducting crime-scene analysis, which again would normally be carried out by a States government. Further, the States de jure mandate is of less relevance than de facto situation on the ground, which the ECtHR needs to look at in its analysis. The case will likely hinge on how broadly the ECtHR defines the idea of public powers. The States also argued that standard personal jurisdiction did not arise in this case and that such jurisdiction only arose when the State was detaining or capturing people and not when they have simply shot them. The ghost of Bankovic is clearly still haunting the court. The perverse outcome of Bankovics reasoning wherein a State is almost incentivised to kill to avoid having to guarantee human rights has come to the fore again. This issue has led to some serious inconsistencies in the case law in the past (theres good analysis of this in Lawsons chapter in margins of conflict). Comparing cases like Bankovic with Pad v Turkey (jurisdiction arose when a Turkish helicopter fired weapons near the border which killed people in Iran) and Andreou v Turkey (jurisdiction arose when a Turkish soldier fired from the TRNC in Cyprus into the Southern area injuring a civilian) reveals the inconsistencies. The ECtHR may avoid addressing this issue by focusing instead on the public powers point. Pulling back from Al-Skeini would cast the already convoluted jurisprudence on jurisdiction into further chaos, so hopefully the ECtHR will stick with it, refining rather than abandoning Al-Skeini in its judgment. Merits In Al-Skeini, the ECtHR held that any extra-territorial duty to investigate in Article 2 would have to be realistic (Al-Skeini at [168]). This case questions whether the ECtHR is prepared to accept a lower standard of investigation in extra-territorial circumstances and what compromises the ECtHR is actually prepared to make for extra-territorial investigations? The procedural obligations in Article 2 are extremely difficult to satisfy in the context of active foreign military operations. With limited force number securing practical, institutional and hierarchical independence becomes difficult, analysing a crime scene in the midst of hostile forces may be impossible and ensuring a prompt investigation when multiple jurisdictions and language barriers are involved can also cause problems. In fairness the Dutch made a reasonable fist of the investigation in the circumstances. They scene was sealed, investigators arrived promptly, interviewed relevant personnel and gathered evidence. The issue of mandates raised in the arguments is perhaps the most interesting dimension of the merits. The Netherlands argued they had a limited mandate in Iraq, which limited their investigation capability. They could only investigate Netherlands troops and could not seize goods or detain people for questioning. However, investigators were able to remove both the victims body and the car to their base, which casts doubt on this claim. Nonetheless, limitations to the scope of a States mandate will clearly pose a significant problem for future extraterritorial investigations. States may even deliberately seek to curtail their mandates for extra-territorial military operations in order to avoid having to uphold procedural obligations in the ECHR. The potential scope of these obligations could be colossal. A State may be obliged to provide a Convention-compliant investigation into every single death which occurs during their foreign military operations. Where a State is exercising spatial jurisdiction, the obligation becomes even more onerous and States may have to investigate deaths perpetrated by 3rd parties also. If the ECtHR is going to develop these procedural obligations in the extra-territorial context, they will need to mitigate their effects. One solution would be to only oblige the State to investigate where there is a suspicion of a violation of IHL. Although given the ECtHRs broader reluctance to expressly rely on IHL in its judgments this may prove fanciful. The ECtHR will need to tread carefully in its judgment and develop creative solutions to avoid placing impossible investigative burdens on the State. Both the ECtHR and States need to move beyond the debate about whether States have extra-territorial human rights obligations and the questions over jurisdiction toward determining what human rights obligations we can realistically expect States to uphold extra-territorially. Splitting the hairs of jurisdiction may prove a fruitful strategy for States in the short term, but they are beginning to look more and more like King Canute and the rising
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tide. The issue of extra-territorial jurisdiction during foreign military operations is not going away and the Conventions rules, forged in fully functioning European States, are at best ill-suited to apply in the context of these extra-territorial military operations. Cases like Jaloud may be just the tip of the iceberg. Its a Serious Mistake for the US Government to Maintain Its Need to Not Follow Human Rights Law Beyond Its Borders Just Security By Daphne Eviatar March 7, 2014 The New York Times reports today that the United States government is likely to continue to insist that the international human rights law embodied in the International Covenant on Civil and Political Rights, ratified by the United States, does not apply to U.S. actions beyond our national borders. Thats not only disappointing to international human rights advocates whove long urged a change in that stance, but its bad news for anyone interested in the efficacy of U.S. counterterrorism policy. When President Obama took office, he announced, to much fanfare, that he was ending the use of torture, closing secret CIA prisons, and planning to close the Guantanamo Bay detention center. He signed those executive orders, at least in part, in the name of improving U.S. national security. As Gen. David Petraeus put it in February 2010, "whenever we have, perhaps, taken expedient measures, they have turned around and bitten us in the backside Abu Ghraib and other situations like that are nonbiodegradable. They dont go away. The enemy continues to beat you with them like a stick . . . ." As a matter of policy, President Obama has made some progress in terms of human rights and counterterrorism. The U.S. government appears to no longer be torturing detainees in U.S. detention centers (though the Bush administration seemed to have largely stopped that practice by that point as well), and President Obama is finally picking up the pace on transferring some of the remaining Guantanamo detainees back to their home countries. But as we know all too well, policies are easily reversible. Until the United States agrees that international human rights law actually prohibits these sorts of basic human rights violations, the United States cant expect to be trusted. That wont help cooperation from U.S. allies, and it will make it far too easy for enemies to dismiss the United States as hypocritical, with no right to expect other countries to abide by international law. If President Obama wants to leave a lasting legacy of progress in international human rights, he should insist on making clear that the United States is indeed bound by international human rights law. The consequences of not conceding this are evident. In Afghanistan, for example, the Obama administration for years insisted that none of the thousands of detainees detained indefinitely at the Bagram prison under U.S. control were entitled to the minimum due process rights guaranteed by the ICCPR. The United States eventually wiggled out of that controversy by turning most (but not all) of the detainees over to the control of the Afghan government. The United States continues to conduct its so-called "targeted killing" program along with a range of other military operations. Members of Congress outside the intelligence committees have asked for years, to no avail, to be briefed on the authorities under which the U.S. conducts these operations. The administration has claimed that the presidential policy guidance issued last year provides intense internal oversight and ensures that the operations meet or exceed international standards. When American Special Operations teams enter Libya or Somalia, for example, its in their interest, and all of ours, for civilian bystanders to believe the Americans will not torture, abuse or kill them. The U.S. claim that international human rights law that prevents arbitrary killings does not apply to U.S. actions abroad flies in the face of that goal. Imagine how the U.S. position comes across in places like Yemen, where the United States has stepped up its drone campaign and reportedly killed hundreds of people without explanation. Sure, as a matter of policy, President Obama has said that the United States will only target people with lethal force beyond "the Afghan theater" who pose a "continuing and imminent threat" to "the American people," and when there is a "nearcertainty" that civilians wont be killed or injured. But the dozen people killed when a U.S. drone attacked a row of cars driving to a wedding party in Yemen in December, for example, doesnt seem to comport with that policy. And since the United States maintains that this is only a matter of policy, and not of law, the U.S. government can change (or simply ignore) its own policy statement as it chooses. It need not account to anyone for the results of its
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actions. This position may help assuage leaders in the military or CIA, who want the latitude to respond to a wide range of threats with lethal force regardless of the annoying constraints of law. But the civilian leadership of the country is responsible for the broader long-term goal of maintaining U.S. national security without remaining in a constant state of war, which would ultimately be counter-productive. President Obama has said he wants to find a way to take the country off of a war footing, to thwart terrorist threats using a set of far broader and more comprehensive non-lethal means. So long as he maintains human rights law doesnt apply to United States actions abroad, how can he be believed? For U.S. commitments to be taken seriously, the government must be willing to say that its own actions are constrained by international human rights law, as the vast majority of our allies and independent and widelyrespected international bodies such as the International Committee for the Red Cross, interpret that law. The State Departments former senior lawyer, Harold Koh (a contributor to this blog) and the former assistant secretary for human rights, Michael Posner, both read the law to apply to U.S. actions in other countries. For the U.S. government to keep denying this broadly-accepted interpretation will only continue to undermine global faith in the United States commitment to the rule of law and U.S. standing in the world. It will also continue to endanger U.S. national security. Guest Post: Harold Kohs Legal Opinions on the US Position on the Extraterritorial Application of Human Rights Treaties Just Security By Marko Milanovic March 7, 2014 Earlier today Charlie Savage of The New York Times broke the story that while serving as the Legal Adviser at the US State Department Harold Koh wrote two major opinions on the extraterritorial application of human rights treaties, urging the Obama Administration to abandon the previous categorical position that the International Covenant on Civil and Political Rights can never apply outside a state partys territory. The first opinion is on the geographical scope of application of the ICCPR, is dated 19 October 2010, and is available here. The second, on the geographic scope of application of the Convention against Torture and its application in situations of armed conflict, is dated 21 January 2013, and is available here. The two opinions, probably obtained by Savage in yet another leak from within the Administration, are a fascinating read. Koh essentially adopts almost all of the critiques levied against the existing US position, which he sees as increasingly untenable, and provides his own (relatively moderate) model of how the two treaties should apply outside a states own territory. Savage also reports that despite Kohs opinions the Administration has decided not to abandon the previous US position, simply because it fears (or at least a sufficient number of its component parts do) that accepting that human rights treaties apply extraterritorially would make its collective life more difficult, as everything from extraterritorial drone strikes to NSA surveillance could fall within the purview of the ICCPR. We shall soon see if Savages reporting is correct the US is up for periodic review before the Human Rights Committee next week, and this is bound to be one of the first questions asked. As Ive explained before, the US Fourth Periodic Report and a follow-up communication to the Committee merely registered the US position and the criticism thereof, without reiterating it, thus leaving the door open for change. If Savages reporting does prove to be correct and the US now clearly reiterates before the Committee that the ICCPR cannot apply extraterritorially because its Article 2(1) is supposedly crystal clear and unambiguous when it says that [e]ach State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, an important opportunity will have been missed. The leak of Kohs two opinions was probably timed to coincide with the hearings before the Committee, and will provide the Committees members with ample fodder to criticize a government whose position was expertly dismantled by its own legal advisor. Even if the US decides to stick to its guns, its position has been undermined. I frankly cannot think of a similar situation in which the disclosure of internal legal advice and the timing of that disclosure have so fatally compromised a states public legal position on a matter of comparable importance (a good, but imperfect, comparison point might be Lord Goldsmiths advice to the UK government with regard to the invasion of Iraq). The Committee will have a field day. If I was the US delegation in Geneva, I think it would be far better to cut ones losses and stick to the deliberate constructive ambiguity in the US Fourth Report, without
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reasserting the previous position or engaging the Committee on this issue in any detail. Of the two opinions, the ICCPR one is more interesting, and Ill address it first, since the territorial scope of the CAT is an easier question. In many of its articles the CAT refers to state obligations extending to any territory under its jurisdiction, a formulation that is clearly not limited to sovereign title over territory, unlike the ICCPR s seemingly dual requirement that individuals must be both within the states territory and subject to its jurisdiction. Kohs ICCPR opinion is convincing in arguing that the text of Article 2(1) is not all that clear and unambiguous, since the and can easily be read as an or (as the Committee did), and since the within its territory and subject to its jurisdiction qualifier could only refer to the positive obligation to ensure human rights, but not limit the negative obligation to respect them. Koh is also convincing in arguing that the US position hasnt been either as consistent or as longstanding as is sometimes claimed, really starting only from 1995 and the then-legal advisers oral response to a question put to him by a member of the Human Rights Committee, that the issue was never seriously considered within the US government before that, and that neither the ICCPRs object and purpose nor its travaux support the strictly territorial US position. Kohs views is thus (p. 4) that: In particular, as detailed below, it is my considered opinion that a better legal reading would distinguish between the territorial scope of the Covenants obligation to "respect" and to "ensure" Covenant rights. A state incurs obligations to respect Covenant rights i.e., is itself obligated not to violate those rights through its own actions or the actions of its agents in those circumstances where a state exercises authority or effective control over the person or context at issue. A state incurs obligations to ensure Covenant rights either by legislating or otherwise affirmatively acting to protect individuals abroad from harm by other states or entities only where such individuals are both within its territory and subject to its jurisdiction, since in such cases the exercise of such affirmative authority would not conflict with the jurisdiction of any other sovereign. The model that Koh proposes, which relies on the distinction between positive and negative obligation, is similar to the one that I have argued for in my book. Where I would part ways with Kohs analysis is first when he argues, relying on Bankovic, that the personal conception of jurisdiction as authority and effective control over individuals would not extend to the killing of an individual, at least not in active hostilities (p. 5). As Ive argued before, there is no non-arbitrary way of limiting the personal conception of jurisdiction, which collapses into the proposition that a state exercises authority, power, or control over an individual whenever it is engaging in conduct capable of violating that individuals rights, be it through detention, killing, or just by reading their email. Second, I think Kohs model is overly limiting in saying that the positive obligation to ensure human rights would only accrue on US territory that obligation should in my view extend whenever a state de facto has effective control over territory, as the European Court has found in Lozidou. In other words, when it was the occupying power in Iraq the US had the positive obligation to ensure human rights of the Iraqi population even from attacks by third parties. The extent of that obligation will of course vary depending on the states capacity and on the legal limits imposed by other relevant rules of international law, such as IHL. Perhaps most notably, Koh is trying to sell his model to the rest of the Administration by arguing that it wouldnt require dramatic changes in existing practices, which largely already comply with the relevant standards as a matter of policy (at 49 ff). But while I would fully agree that human rights law is sufficiently flexible so as to accommodate valid state concerns in the extraterritorial context, Koh is still overstating his case the ICCPRs impact is not as small as he tries to make it seem. In particular, his dismissal of the impact of human rights on targeting and detention practices based on the current US understanding of the lex specialis principle in my view rests on very shaky foundations. As for the CAT opinion, its perhaps most interesting feature is how Koh addresses and criticizes the positions held by some of the legal officers of the previous administration, and Im sure others will comment on this at greater length. As a purely legal matter, I found particularly striking his finding that the CAT presumes a general, territorially unlimited obligation of states not to commit torture which also applies in armed conflict an obligation not spelled out in the Convention, but implied in it. I think this is exactly right, and indeed this is an approach similar to that of the ICJ in the Bosnian Genocide case when it found that the obligation to prevent genocide in Article 1 of the Genocide Convention implies a (territorially unlimited) obligation of state not to
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commit genocide themselves. He extends the same reasoning to the negative obligation to refrain from committing cruel, inhuman and degrading treatment (p. 46). He similarly finds the Article 3 CAT nonrefoulement obligation to be territorially unlimited (pp. 4-5), while the positive obligations to prevent torture etc. would depend on de facto territorial control. In sum, had the Administration adopted the views expressed in Kohs two memoranda it would have gone a long way in appeasing its critics and towards having a principled position on the territorial scope of human rights treaties. Yet, on the other hand, the fear that the ICCPR will have a more significant impact than Koh has argued is also understandable, and it is no wonder that the Administration is finding it hard to budge from the status quo. But lets see what the next week in Geneva will bring. Another Terrible Day for the OTP Opinio Juris By Kevin Jon Heller March 8, 2014 Readers are no doubt aware that Germain Katanga was convicted by the ICC yesterday. What may be less obvious is that the verdict nevertheless represents the Trial Chambers complete rejection of the OTPs case against Katanga. The OTP alleged that Katanga was responsible as an indirect co-perpetrator for seven counts of war crimes (using children under the age of fifteen to take active part in hostilities, directing an attack against civilians, wilful killing, destruction of property, pillaging, sexual slavery, and rape) and three counts of crimes against humanity (murder, rape, and sexual slavery). The Trial Chamber acquitted Katanga on all of the charges concerning rape, sexual slavery, and the use of child soldiers. And although it convicted him of one crime against humanity (murder) and four war crimes (murder, attacking a civilian population, destruction of property and pillaging), the Trial Chamber rejected the idea that he was responsible for those crimes as an indirect coperpetrator, choosing to "recharacterize" the facts to support finding him guilty as an accessory under Art. 25(3) (d) of the Rome Statute (contribution to a group crime). The OTP, in short, failed to prove any of its legal claims just as it did with regard to Katangas co-defendant, Mathieu Ngudjolo, who was acquitted on all charges in 2012. Indeed, had the Trial Chamber not been willing to substitute an uncharged and unconfirmed mode of participation for the charged and confirmed one, Katanga would have simply walked, as well. (Which is, by the way, exactly what should have happened. The Trial Chambers "recharacterization" of the facts in the case, which was motivated solely by the desire to ensure Katangas conviction thereby saving the OTP from itself was fundamentally inconsistent with Katangas right to a fair trial. But that will be the subject of my next post.) All in all, another terrible day for the OTP. Extraterritoriality and Human Rights: Time for a Change in the U.S. View? Lawfare By Peter Margulies March 8, 2014 As Jack has frequently observed, legitimacy and effectiveness often go hand-in-hand. The two comprehensive State Department memoranda by former Legal Adviser (and Yale Law School dean) Harold Koh released Friday on extraterritoriality under the ICCPR and Convention Against Torture make this point powerfully and persuasively (see commentary by Marko Milanovic here and Jennifer Daskal here). Although it seems like the US will persist in arguing to the contrary (see the summary by Wells here), its time for a change, as I urge in my recent Fordham article on extraterritoriality and the NSA. Dean Kohs ICCPR memo, which I focus on here, first deconstructs the textual point that best supports the current US position. Article 2(1) of the ICCPR binds states parties to "respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant." The US, since the Clinton administration, has interpreted the terms, "within its territory and subject to its jurisdiction," as conjunctive, meaning the US does not assume duties under the treaty unless an individual is within its territory. However, Dean Koh points out that ordinary rules of textual interpretation do not dictate this view. First, Dean Koh points
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out that the US reading makes the verb, "respect," redundant. The term, "respect," commits a state to refrain itself from violations. The term, "ensure," in contrast, entails sweeping affirmative duties to guarantee rights against incursions by others. Since "ensure" is a far broader term, it already encompasses the narrower duty to "respect" rights. Expressly mentioning the duty to "respect" would therefore be unnecessary. We generally assume that the drafters of a treaty, statute, or constitution did not intend mere surplusage the words used are supposed to mean something. The US reading violates this basic tenet. Dean Koh, practicing the lawyers trademark skill at close reading, also notes that the US position violates the rules of grammar. Under the US view, a state party must "respect to all individuals within its territory and subject to its jurisdiction" the rights listed in the treaty. Focus on the phrase, "respect to all individuals." In English, French, and the other major treaty languages, we dont "respect" rights "to" rights holders. We might respect rights "owed to" rights holders. However, that adds another word, something that the US claims its reading avoids. Since we assume that treaty drafters dont celebrate bad grammar, the need to endure bad grammar or add a word to correct it renders the US stance suspect. Dean Koh also restores Eleanor Roosevelt to her proper place in the ICCPRs drafting history. The US has glibly invoked the memory of Roosevelt, a principal drafter of the ICCPR, to buttress its narrow reading of the treaty. Dean Koh, in a definitive reading of the ICCPRs travaux preparatoires, confirms that Roosevelt sought a narrow construction in only one situation: sparing the U.S. from enacting legislation after World War II to "guarantee" the rights of individuals within Germany and Japan against the depredations of their own governments. In other context, Roosevelt acknowledged the responsibilities of the US and other states parties. Any other stance, as Dean Koh observes, would have been incongruous, given Roosevelts insistence that the universality of human rights was a principal bulwark against brutality and despotism. Finally, Dean Koh notes that the current US stance is an unforced error. Even if the ICCPR applied extraterritorially, US drone and detention operations abroad would be governed by the more specific law of armed conflict (LOAC), under the well-known lex specialis doctrine. Since, as Dean Koh informed the American Society of International Law in 2010, the US follows LOAC (a point seconded by Mike Schmitt here), we are better served by joining the contest on that ground. Avoiding a debate on the merits awards the high ground to those who claim the US cannot mount an effective substantive defense of its choices. That perception does not serve the law or American interests. Prosecuting Sexual Violence Some Steps Forward, but Still a Long Way to Go Justice in Conflict By Viviane Dittrich March 10, 2014 Sexual and gender-based violence occurs in the private and public realm, during peacetime and wartime. Only last week, the newly released Violence Against Women report by the European Union Agency for Fundamental Rights stated that about one in three women in Europe, i.e. 62 million, have experienced physical or sexual violence. The pervasiveness of sexual violence used as a weapon of war is well known and documented. Even after conflict has ended, the devastating impacts of sexual violence persist at the individual and societal level. A broad spectrum of crimes have been identified such as rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilizations, gender-based persecutions and trafficking of persons. A culture of impunity and myths that sexual violence in armed conflict is a cultural phenomenon or represents the inevitable spoils of war need to be further challenged. For too long, preventing and prosecuting sexual violence has not got the limelight it deserves. International Womens Day celebrated on 8 March thus provides a topical moment to review some of the developments and achievements over the past year. Without any doubt, sexual violence is not just a womens issue. It concerns women and men. Increasingly recognised and rightly so, it is an issue of international peace and security. ICTR Launches Best Practices Manual The visibility of the topic has been significantly heightened this past year through the work of the international criminal tribunals. On 30-31 January 2014 the Office of the Prosecutor of the International Criminal Tribunal for Rwanda (ICTR) organised an International Workshop on Conflict-Related Sexual and Gender Based Violence Crimes in Light of the ICTRs Experience in Kampala, Uganda. I was delighted to be invited to the workshop and
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witness the formal launching of the ICTRs Best Practices Manual for the Investigation and Prosecution of Sexual Violence Crimes in Post-Conflict Regions. Around 120 participants including national and international prosecutors, judges, defence counsel, health professionals, victim and witness advocates and representatives of civil society discussed best practices, shared experiences and made practical recommendations to design a model training programme for practitioners engaged in preventing and prosecuting sexual violence in Africa. The ICTR has 20 years of experience in prosecuting sexual violence crimes perpetrated during the 1994 Rwandan Genocide. Over half of those indicted by the ICTR (52 out of 93 accused) were charged with rape or other crimes of sexual violence. Since 2007 a systematic review has taken place within the ICTRs Office of the Prosecutor to assess its mixed success rate of securing convictions for sexual violence charges. In November 2012 ICTR Prosecutor Hassan Jallow hosted a first international workshop in Kigali, Rwanda. As a result of this collective and consultative process, the Manual is conceived and designed as a tool for practitioners. By sharing its experience and lessons learnt, the ICTR endeavours to engage partners in the Great Lakes region, to enhance the capacity of national authorities and regional stakeholders in Africa and to fight impunity. In an on-going effort by ICTR Prosecutor Jallow, several legacy projects have been designed, including Best Practices Manuals and training programmes. In recognition of the pioneering and prolific work in the area of knowledge sharing and dissemination of practices, the International Association of Prosecutors conferred a Special Achievement Award on the ICTRs Office of the Prosecutor on 9 September 2013. A Shared Endeavour Across the Tribunals The number of prosecutions and, importantly, convictions for sexual violence at the international criminal tribunals remains low. For instance, on 7 March 2014, Trial Chamber II of the International Criminal Court (ICC) rendered its judgment convicting Congo militia leader Germain Katanga for one crime against humanity and four war crimes, while acquitting him of other charges, including crimes of rape and sexual slavery. This case stands for many others when judges did not find evidence beyond reasonable doubt with respect to sexual violence crimes. In light of providing meaningful justice for crimes committed it is important to critically review the record and document and disseminate lessons learnt with regard to effective investigations and prosecutions and this is a shared endeavour across the tribunals. In terms of jurisprudence, there are notable achievements across the contemporary international criminal tribunals, yet sexual violence remains an area that draws mixed reviews. The International Military Tribunal at Nuremberg largely demonstrated a lack of attention to sexual violence and the International Military Tribunal for the Far East in Tokyo ignored the systematic sexual slavery of so-called "comfort women". On 9 March 2009, the UN Department of Peacekeeping Operations published a Review of the Sexual Violence Elements of the Judgments of the ICTY, the ICTR, as well as the Special Court for Sierra Leone (SCSL). A month ago, on 7 February 2014, the ICCs Office of the Prosecutor released a Draft Policy Paper on Sexual and Gender Based Crimes. Comments by the public were welcomed and the final policy paper has been announced for March 2014. Since November 2008 the ICCs Office of the Prosecutor has appointed a Special Adviser on Gender Crimes (Catherine MacKinnon from 2008 to 2012, Brigid Inder from 2012 to present). The ICTYs Office of the Prosecutor has also been working on a Best Practices Manual on sexual violence reflecting its experience and pioneering role in the region of the former Yugoslavia. Furthermore, the ICTY outreach section produced a documentary entitled Sexual Violence and the Triumph of Justice in 2012 and organised film screenings inter alia in Zagreb, Sarajevo, Belgrade, Novi Sad and Skopje. On the International Agenda Recent developments and publicity on an international level signal the intensified commitment and resolve of the international commitment to prevent and end sexual violence in conflict and post-conflict situations. Notably, on 6 February 2014 the United Nations and the African Union affirmed their commitment in this area by pointing to a landmark agreement on the prevention of and response to conflict-related sexual violence in Africa signed on 31 January 2014, the final day of the 22nd African Union Summit in Addis Ababa, Ethiopia. 137 States have endorsed the historic new Declaration of Commitment to End Sexual Violence in Conflict, recalling that rape and other serious sexual violence in conflict situations constitutes grave breaches of the Geneva
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Conventions and their First Protocol. The Declaration supports a new International Protocol on the Investigation and Documentation of Sexual Violence in Conflict, to be launched this year. On 24 June 2013, the UN Security Council issued Resolution 2106 on sexual violence in conflict which reaffirms the previous landmark Resolutions 1325 (2000), 1820 (2008), 1888 (2009) and 1960 (2010). UN action has taken on numerous forms, including a Special Representative of the Secretary-General on Sexual Violence in Conflict appointed since 2010, Annual Reports of the Secretary-General on Sexual Violence in Conflict submitted since 2012, the campaign UNiTE to End Violence against Women launched in 2008 and the UN Action Against Sexual Violence in Conflict as a concerted effort to provide an umbrella uniting the work of 13 UN entities since 2007 (http://www.stoprapenow.org/). On 11 April 2013, the G8 Foreign Ministers also adopted a Declaration on Preventing Sexual Violence in Conflict. On a national level, for instance UK Foreign Secretary William Hague launched the Preventing Sexual Violence in Conflict Initiative in April 2012 and the United States Strategy to Prevent and Respond to Gender-based Violence Globally was launched in August 2012. Former U.S. Secretary of State Hillary Clinton championed womens issues as a centrepiece of her work, inter alia through the National Action Plan on Women, Peace and Security and a strong campaign against sexual violence in conflict. In addition, joint initiatives by international organisations or non-governmental organisations have played an important role, for instance the NGO Working Group on Women, Peace and Security and the International Campaign to Stop Rape & Gender Violence in Conflict. A joint project by UN Women, Justice Rapid Response and the Institute for International Criminal Investigations seeks to increase the pool of trained experts available for rapid deployment to investigate allegations of gender-based crimes during conflict. Their fourth training course recently took place in Bogot, Colombia, on 19-25 January 2014. Deployments of experts have already taken place to the Commissions of Inquiry for Cote dIvoire, Libya and Syria, and North Korea, and the ICC. The impact of the investigations special roster is internationally recognised with Human Rights Council Resolution 23/25. Keeping up the Pace Anticipation is high for the upcoming Global Summit to End Sexual Violence in Conflict, the largest-ever international gathering convened on this topic, co-chaired by UK Foreign Secretary William Hague and Angelina Jolie, Special Envoy for the UN High Commissioner for Refugees, on 10-13 June 2014. While visible action in terms of declarations is taken and numerous laudable initiatives and publications are launched, more remains to be done in order to put into action the signalled commitment, to situate the issue within the broader Women, Peace and Security agenda, to provide necessary coordination and funding, and to adequately address the ongoing crimes and ensure accountability at the international and national level. Three key components framed the recent discussions in Kampala: prevention, prosecution and partnership. While the prosecution of sexual violence is paramount, a holistic approach is necessary to recognise the importance of services for survivors, counter the stigma of survivors, change perceptions, close the impunity gap and empower women and girls. More credible commitment and effective action is needed so that sexual violence crimes do not remain what Christine Chinkin has described as the "forgotten" crimes in international law. Guest Post: Koh on Non-Refoulment Just Security By Jonathan Horowitz March 10, 2014 As an extension of the Just Security "mini forum" on the extraterritorial application of human rights treaties, I wanted to draw attention to what Kohs January 2013 memo said about the issue of non-refoulementthe rule that no state shall expel, return ("refouler") or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture. In the past, the United States has claimed that the non-refoulement obligation in Article 3 of the Convention against Torture (CAT) does not apply extraterritorially or in situations of armed conflict. Kohs legal memo on the CAT is nothing less than a frontal assault on these two legal interpretations, which he undertakes in 38 pages of his 90-page memo that is dense with legal history and analysis. Koh is not shy in stating where he thinks previous administrations got it wrong, and while he recognizes the United States commitment to Article 3 as a matter of policy, he says this "papers over" the reality that a legal
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obligation exists. The memos section on Article 3 is particularly important because it helps to fill a gap in the legal protection of people detained in the context on both international and non-international armed conflicts. Under the law of international armed conflict, the principle of non-refoulement is found in Article 12 GC III and Article 45 GC IV but these articles, though important, have limitations. They apply only to certain groups of persons and they had the original intention of regulating transfers amongst allies, as Ive discuss here. As for non-international armed conflicts, the principle of non-refoulement in the applicable LOAC could be said to be altogether absent, although some look to Article 5(4) of Protocol II and Common Article 1 to the Geneva Conventions to argue for an embedded rule that a state must not send a detainee to another state where there is a risk of torture or other prohibited treatment. Given these shortcomings, the application of CAT in extraterritorial armed conflict makes a substantive and, in my view needed, legal contribution to the humane treatment obligations that protect conflict-related detainees. Koh does not, however, leave his argument only to the law. In one of his more forceful passages, he states that his CAT interpretations are also in the countrys best interest. (He also makes this argument in his ICCPR memo.): Our repeated insistence that, on the one hand, the United States has no legal obligation not to return people to torture from beyond our borders, and on the other hand, our firm policy makes the absence of a legal obligation irrelevant, is increasingly untenable as a legal matter, and does not serve U.S. interests. The denial of the legal obligation invites suspicion and distrust from our audiences, domestic and foreign. It also invites emulation from States less scrupulous about compliance, and thus risks undermining the effectiveness of the global regime of protection the CAT sought to establish. Indeed, the claimed policy commitment simply papers over the reality that the policy is substituting for what is, in fact, a legal obligation. In the absence of the claimed policy, it would be entirely untenable, legally and politically, for the United States to claim that it is legally entitled to return someone to torture. I agree with Koh on all these points. I would add, based on my own experience working on non-refoulement issues in Afghanistan, that it was in large part because the United States regarded its non-refoulement responsibilities as a matter of policy rather than law, that it failed on several occasions to ensure people it detained were not handed over to Afghan authorities, who then subjected those individuals to torture (see here). The most obvious illustration of this could be seen by comparing what at times has been the United States slow, weak, and incomplete non-refoulement policy to the more robust actions taken by some of its NATO allies that regarded non-refoulement responsibilities as legal obligations (see here and here). Im of course interested to see what impact Kohs memo will have on the administrations interpretation of its CAT obligations. Im equally interested to think about how any newly recognized obligations might be implemented especially with regard to the transfer of people who the United States detains in large numbers, as it did in places such as Bagram and at the battlefield level. For example, the Human Rights Committee and the Committee against Torture have held that a person transferred from one state to another must have access to an individualized procedure prior to transfer that allows for an evaluation of the risk of post-transfer mistreatment. The Committee against Torture, for example, held that "the absence of any avenue of judicial or independent administrative review of the Governments decision to expel the complainant [did] not meet the procedural obligation to provide for effective, independent and impartial review required by article 3 of the Convention." This may appear to some to place too onerous a task on a government engaged in an armed conflict. But U.S. personnel part of the United Nations forces in the Korean War conducted individualized transfer reviews (though it was done through a very cursory and draconian procedure); and if we look to the European Court of Human Rights for direction, the Court has shown a willingness to take into account the practical limitations that an armed conflict puts on a state and allows a state to vary its conduct depending on the circumstances. Finally, Im not sure where Kohs two memos leave the principle of non-refoulement with respect to cruel, inhuman or degrading treatment. While CIDT is not explicitly covered by the text of Article 3, there is consistent human rights case law that CIDT is covered in an embedded non-refoulement principle of the ICCPR (as well as the European Convention on Human Rights). If, however, the non-refoulement principle is one that emanates
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from a "positive obligation," Kohs ICCPR memo would seem to imply that the United States is not bound to this when operating extraterritorially (see Marko Milanovics take on the "positive obligations" issue here). EU-Mauritius Transfer Agreement at Risk? Communis Hostis Omnium By Marta Bo March 11, 2014 In Case no. C-658-11 the European Parliament (EP) is requesting the Court of Justice of the European Union to annul Council Decision 2011/640/CFSP of 12 July 2011 on the agreement between the European Union and the Republic of Mauritius on the conditions of transfer of suspected pirates seized from the European Union Naval Force (EU NAVFOR) to the Republic of Mauritius. In its first plea, the EP contests the legal basis of the EU-Mauritius transfer agreement which was adopted within the framework of the common foreign and security policy (CFSP). The adoption of Article 37 TEU as a legal basis entailed, from a procedural point of view, the application of Article 218 (5) and (6) TFEU which dispense the Council from seeking the consent of or consulting the EP when concluding agreements which relate solely to the CFSP. According to the EP the contested decision is invalid because it does not exclusively relate to CFSP, but is also linked to other fields, such as judicial cooperation in criminal matters and police cooperation, to which the ordinary legislative procedure applies. In its second plea, the EP claims that the Council has fallen short of complying with the obligation to immediately and fully inform it at all stages of the procedure (Article 218 (10) TFEU). The EU-Mauritius transfer agreement is only one among several agreements (see here and here) on the transfer of suspected pirates that the EU has concluded with third States on the basis of EU Council Joint Action 2008/851/CFSP of 10 November 2008 EU Council Joint Action 2008/851/CFSP was explicitly adopted to put into effect UNSC Resolutions 1814 (2008), 1816 (2008) e 1838 (2008) calling, inter alia, for international cooperation to combat the threat to international peace and security constituted by the situation in Somalia. To this end, the Joint Action established EU NAVFOR operation Atalanta, the first European Security and Defence Policy (ESDP) naval military operation. Its mandate (extended until December 2014) embraces: a) the protection of both World Food Programme vessels delivering food aid to the Somali population and, more generally, of vulnerable vessels cruising the so-called Area of Operation; b) the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast through the use of necessary measures, including the use of force; c) the arrest, detention and transfer of pirates in view of prosecution being brought under Article 12 . Article 12 of the Atalanta Joint Action specifically deals with adjudicative jurisdiction and is the legal basis for agreements between the EU and third States on the transfer of suspected pirates captured by EU NAVFOR, such as the one concluded with Mauritius. It indeed provides that in case of inability or unwillingness of the flag Member State or the third State participating in the operation, of the vessel which took them captive, suspected pirates shall be transferred to a Member State or any third State which wishes to exercise its jurisdiction; on the other hand, transfers to any third State are prohibited when the conditions agreed for the transfer are inconsistent with international human rights law. It is against this background that Advocate General Bot in his Opinion delivered on 30 January 2014 assessed the content and objectives of the EU-Mauritius transfer agreement. In proposing the dismissal of the first EPs plea AG Bot asserted that transfer agreements are not only closely linked to the Atalanta Joint Action, which comes under the CFSP, but they are essential to its implementation and effectiveness (para 71 of the Opinion). The Joint Action is a measure that should be situated in the context of the fight against Somali piracy in order to preserve international peace and security having due regards to human rights (paras. 83 and 114 of the Opinion). The close link between transfer agreements and the Atalanta Joint Action results in the formers squarely falling within the aims of the EUs external action and, in particular, within Article 21(2)(a)-(c) and (h) TEU, which set out objectives traditionally assigned to the CFSP. In addition, although transfer agreements contain measures similar to judicial cooperation in criminal matters and police cooperation, such traditional instruments of the Area of Freedom, Security and Justice could be mobilized in favor of objectives of the CFSP and be absorbed therein (para. 118 of the Opinion). In AG Bots view the transfer agreement relates
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exclusively to the CFSP within the meaning of Article 218(6) TFEU and therefore the contested decision was rightly based solely within the framework of the CFSD. Although the Court of Justice does not have jurisdiction in matters related to the CFSP (Article 24(1) TEU), the AG claimed that the CFSP cannot completely escape the scrutiny of the EU judicature, because it must be able to assess the validity of the procedure adopted to conclude a treaty. AG Bot suggested that the second plea should also be dismissed in light of the fact that the obligation of the Council to inform the Parliament at all stages of the procedure is less stringent in CFSP procedures (where consent from or consultation of the Parliament is not required). Surprisingly, he argued that the Council complied with its obligation by informing the Parliament three months after the agreement was concluded. It now remains to be seen whether the Court of Justice will follow AG Bots arguments. In case it wont, what consequences will a ruling of annulment have for the EU transfer agreement with Mauritius? Will the annulment have any impact on the piracy trials ongoing before Mauritian courts? Under Article 264 TFEU the institution whose act has been declared void is required to take the necessary measures to comply with the judgment of the Court. In brief, the Council will have to remedy the grounds on which the annulment was pronounced, which means that it will have to adopt the proper legal basis and procedure. Since there are important reasons of legal certainty, especially with regards to ongoing piracy trials before Mauritian Courts, the Court of Justice may also want to exercise its discretion either to decide which of the effects of the annulled decision shall be considered as definitive or to maintain its effects until a new decision is founded on an appropriate legal basis (Article 264 TFEU). This would ensure that previous transfers of pirates to Mauritian courts are unaffected by the Courts ruling. Moreover, the adoption of the proper legal basis and procedure by the Council will also ensure that the EU avoids being in breach of its commitments under the agreement. Although the annulment of the EU internal act concluding the agreement cannot per se have any consequences with respect to Mauritius, it could impair EU capacity to comply with the obligations arising from the agreement, as a result of which the EU could incur international responsibility. Indeed, the EU remains responsible under international law for the performance of the treaty and could not invoke its internal law as justification for its failure to perform the agreement (Article 27 VCLTIOs ). In addition, it could not invoke the fact that its consent to be bound by the agreement was invalid since it was expressed in violation of its internal rules regarding competence to conclude treaties, in order to avoid international responsibility (Article 46 VCLTIOs). Although the VCLTIOs has not yet entered into force, the corresponding rules regarding Internal law and observance of treaties and Provisions of internal law regarding competence to conclude treaties contained in its sister Convention (Articles 27 and 46 VCLT) may be accepted as representing customary law, which is binding for the EU. Therefore, in light of the importance of the security of legal relations and the irrelevance of internal questions regarding the procedure used for the conclusion of a treaty, the responsibility of the EU for the performance of the transfer agreement cannot be affected by the annulment of the Council decision. The Katanga Verdict and its Legacy for International Criminal Justice Justice in Conflict By Dov Jacobs March 12, 2014 Having discussed some specific legal aspects of the judgment in my previous two posts on the Katanga Judgement, it is now necessary to take a step back and discuss what is customary to call the Judgments "legacy". This is a difficult term to use, because it is difficult to define. Indeed, it depends on multi-faceted (and sometimes contradictory) perceptions of legitimacy by a number of diverse interested communities (lawyers, diplomats, victims, NGOs, etc.), in a way that makes the concept difficult to pin down. Despite this, it is useful, I think to venture some thoughts on what this judgment shows in relation to the working of the ICC and more generally
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International Criminal Tribunals, before considering what effect this might have on the broader interested communities. Legacy from the perspective of the Court This morning, I came across this remarkable title in an online publication: "Congo warlords conviction brings relief to international court". Usually headlines point towards relief for victims, or broader political considerations. What this headline illustrates is the perception that the ICC might have an internal identity crisis which is deserving of attention. However, Im not sure that the Katanga Judgment really does bring "relief" to the ICC. First of all, the Katanga verdict represents another failure for the Prosecutor, as pointed out by Kevin Jon Heller. The only thing that saved the case from total disaster was the Trial Chamber stepping in at the last minute. As a result, one can only continue to note that the record of the ICCs Office of the Prosecutor (OTP) since the entry into force of the Rome Statute is bleak at best. Indeed, it has been a rough few years for the ICCs Prosecutor. A number of cases at the ICC have not gotten past the confirmation stages (Bahar Idriss Abu Garda, Callixte Mbarushimana, and two accused in the Kenya cases); the Laurent Gbagbo confirmation hearing was adjourned due to a lack of evidence; the Thomas Dyilo Lubanga trial was smeared by allegations of prosecutorial misconduct and evidence of OTP intermediaries influencing certain witnesses; the Jean-Pierre Bemba trial only went forward following a change in the mode of liability proposed by the Pre-Trial Chamber; Mathieu Ngudjolo Chui was acquitted and Germain Katanga only convicted due to the judges taking over a prosecutorial role. The fact is that little has changed since Luis Moreno-Ocampo has left office and there is something seriously wrong with the strategies adopted by the OTP. These will need to be addressed because it is currently doing harm to the legacy of the Court. Second of all, the Katanga judgment is a travesty of justice from the perspective of the rights of the defense. The notice of possible recharacterization in November 2012 was essentially a notice of conviction and the past year and a half pretending to be fair proceedings has been a waste of time. The only people who benefited from these prolonged proceedings are the two majority judges who got 18 extra months of international organisation salary and benefits because their mandate was meant to end with the Katanga and Chui verdict in December 2012. The judges basically took over from the Prosecutor in a fashion that led the dissenting Judge, Christine van den Wyngaert, to express her disagreement in very strong terms, as I noted here. But this travesty of justice can only be understood if it is set within the context of the general workings of international criminal law, with which, in fact, it appears to be perfectly in line. Indeed, while the criticism of judicial involvement is certainly justified in the present case, it should be noted that judicial involvement in prosecutorial activities is nothing new. As I argued here, the adoption of Regulation 55 has shifted the balance of power from the Prosecutor to the Judges. More generally, judges have never shied away from taking on managerial roles in the cases. Some years ago, in the CAR and Darfur situations, faced with the Prosecutors delays in investigations, the pre-trial chambers in both instances made insistent enquiries in relation to this lack of progress. More recently, in the Laurent Gbagbo case, the Pre-Trial Chamber provided the Prosecutor with a detailed list of questions and issues that should be investigated further because they were inadequately handled in the document containing the charges. Moreover, in relation to protection of the rights of the defense, while the use of Regulation 55 in this case to recharacterize the charges at such a late stage of the proceedings to guarantee a conviction and avoid an acquittal is a particularly egregious example of denial of fair trial rights, it is a common feature of international criminal trials generally. International criminal law is geared towards conviction, both in way the law is applied and interpreted (or created) by the judges as well as in the rules of procedure and evidence. "Why is that a problem?", one might ask. To answer this question, one needs to take a broader perspective and wonder why we have these international trials and what their purpose is. Legacy from a broader perspective
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A couple of paragraphs from the dissent of Judge van den Wyngaert deserve to be quoted in full (310-311) : While it is not for me to speculate about the reasons why my colleagues take such a different view on so many issues, I do want to offer some of my own reflections. Trials like these are difficult and complex matters, both from a legal and evidentiary point of view. Moreover, they are challenging on the human level. Sympathy for the victims plight and an urgent awareness that this Court is called upon to "end impunity" are powerful stimuli. Yet, the Courts success or failure cannot be measured just in terms of "bad guys" being convicted and innocent victims receiving reparation. Success or failure is determined first and foremost by whether or not the proceedings, as a whole, have been fair and just. This raises the question by which standard fairness and justice should be evaluated. My view is that the trial must be first and foremost fair towards the accused. Considerations about procedural fairness for the Prosecutor and the victims and their Legal Representatives, while certainly relevant, cannot trump the rights of the accused. After all, when all is said and done, it is the accused and only the accused who stands trial and risks losing his freedom and property. In order for a court of law to have the legal and moral authority to pass legal and moral judgment on someone, especially when it relates to such serious allegations as international crimes, it is essential, in my view, to scrupulously observe the fairness of the proceedings and to apply the standard of proof consistently and rigorously. It is not good enough that most of the trial has been fair. All of it must be fair. These sentiments make a fundamental claim about the centrality of the accused (and therefore of the respect of his rights) in international criminal proceedings. A criminal trial is first and foremost about the fair determination of the criminal responsibility of an individual. To take the dissent one step further, while fighting impunity, reconciliation, truth or closure for victims might be a valuable consequence of an international criminal trial, it is not its core function as an institution. These other goals can never "trump the rights of the accused". International criminal trials should be fair to the defendants and international criminal judgments should be strictly and correctly reasoned in law and in fact. None of this was done in the Katanga trial and judgment, as noted in my previous posts on the Judgment (here and here). Still, ultimately and unfortunately, Judge van den Wyngaert is probably wrong. The fairness of international criminal trials or the correct legal reasoning of international judgments are of interest to only a small epistemic community of which I am a part and which has a vested interest in these particular aspects of international trials. I think there is in fact no connection between the legal quality of what international criminal tribunals produce and the way their work is perceived by affected communities. Ive seen a number of surveys done in regions where international or hybrid tribunals were in operation, where surprise or anger was expressed at the level of guarantees these "guilty" people were being given. A fair acquittal will be seen as a "disappointment" for victims while a conviction, irrespective of how it came about, will be seen as a "victory for justice". One can wonder whether and how the Katanga Judgment fits this logic. First of all, from a fair trial perspective, while due process violations are usually hidden within the arcanes of procedure, in the Katanga trial it was very visible. Indeed, Katangas co-accused, who was charged with the same criminal conduct as his, was acquitted over a year ago. You dont need 10 years of legal expertise to question why this is the case. Second of all, even from the perspective of victims, it is not clear whether this is a "victory for justice". For one, this judgment symbolically illustrates the continued and inadequate consideration of rape and sexual violence in armed conflict. Secondly, it must be said that Katanga wasnt really found guilty of much. He provided weapons to a group with possibly some knowledge of their criminal intent and without even necessarily sharing it. This is clearly anti-climatic compared to the narrative of a criminal mastermind that was sold to us by the Prosecutor. In the meantime, the vaguely identified group acting with a common criminal purpose that Katanga helped is still out there. In sum, it seems there is not much to salvage from the Judgment, whatever view one takes on the "legacy" of international justice. 1) The Judgment is new evidence that the ICC OTP is building the future on its past failures, which is good news for no one, not even the defendant because 2) the judgment illustrates in the bleakest fashion possible how international criminal courts can sometimes completely disregard defense rights and 3) the outcome of the judgment, even if it is a conviction, is a far cry from providing the level of justice to victims that one could have expected.
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Which leads me to a final concluding thought. We often tend to address issues of "legacy" from the perspective of positive or negative effects on the considered communities (lawyers, victims, defendants, etc.). In that respect, the legacy of Katanga Judgment seems to be entirely negative. However, I wonder whether Judgments like this might not actually explode this positive/negative dichotomy by ultimately showing that international criminal tribunals will increasingly and ultimately become irrelevant. Irrelevant for lawyers because of the lack legal quality of the output. Irrelevant for defendants, because no pedagogic effect can result from such biased institutions. Irrelevant for affected communities, because they are no longer getting confirmation of what they think happened. Irrelevant for victims, who might finally see through the lie that was the promise of international justice, in the way that it was sold to them. In the words of Oscar Wilde: "There is only one thing in life worse than being talked about, and that is not being talked about." New Opportunities for Justice in Sri Lanka? Justice in Conflict By Mark Kersten March 13, 2014 Very few people doubt that crimes under the jurisdiction of the International Criminal Court (ICC) were committed during Sri Lankas bloody civil war especially in the final days of the conflict when military and security forces crushed the remaining remnants of Tamil resistance. But a new report, endorsed by an impressive array of international jurists, released by the Sri Lankan Campaign for Peace and Justice suggests that the commission of crimes against humanity didnt end with the conclusion of the civil war. According to the organizations chairman, Edward Mortimer, crimes against humanity continue to be perpetrated in Sri Lanka and should be investigated. If Sri Lanka isnt interested in doing so itself, then the international community should step in: Five years after the civil war ended in Sri Lanka, Sri Lankan security forces are still committing crimes against humanity including rape, sexual violence, torture, murder, imprisonment, enforced disappearance and land grabs against Tamil civilians in the islands Northern Province Until now, international debate about Sri Lanka has focused mainly on what happened during the last months of the war in 2009, when thousands of civilians perished as government forces crushed the last pocket of Tamil Tiger resistance along the northeastern coast. But this new report is the first to claim that the governments actions after the war, and through to the present day, include crimes of comparable gravity. And these findings come at a crucial moment, just when the UNs Human Rights Council is debating what to do about Sri Lankas failure to comply with its last years resolution calling for an "independent and credible investigation". To date, virtually nothing has been achieved in terms of justice and accountability in Sri Lanka since the end of the civil war. Despite some pressure from the international human rights community, the government of President Mahinda Rajapaksa has largely been able to shrug off pressure to hold perpetrators of international crimes to account. According to the International Crisis Group, the country has an "entrenched culture of impunity." Moreover, as The Economist notes, the government has been rather effective in deflecting pressure to take any significant steps to achieve accountability: Sri Lankas rulers see all this as meddling. In recent speeches Mr. Rajapaksa has accused his Western critics of duplicity, talking of law and rights when they really want to do down his country, proud conquerors of terrorists. He expects such talk to go down well with nationalist-minded voters. Sri Lankan diplomats flit to Geneva to deflect criticism. They even suggest that Indian peacekeepers, present in the late 1980s, may have carried out massacres. The likelihood of any ICC intervention into Sri Lanka despite its potential merits is zero-to-none. Sri Lanka is not a member state of the ICC. As a result, the UN Security Council would likely have to refer the situation in Sri
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Lanka to the Court. However, outside of the international justice and human rights community, there is little political appetite for a full-scale investigation into alleged atrocities and international crimes in Sri Lanka during or after the civil war. There have been protests, boycotts of conferences and lofty speeches on the need for justice but little in terms of tangible developments. Of course, these acts shouldnt be derided as they may someday amount to more concerted action. But that day isnt likely to come in the near future. Theoretically, another option would be for the Sri Lankan government to refer itself to the ICC. It goes without saying that this isnt going to happen. The government knows full well, that any criminal investigation would focus primarily on the alleged crimes of government forces. The ICC would almost certainly have the Rajapaksa administration in its cross-hairs. At the same, there are undoubtedly those who believe that ICC involvement at this juncture could exacerbate rather than ease tensions and divisions in Sri Lanka. These voices should be listened to before any action to get the ICC involved is considered. Since its outright military victory over the Liberation Tigers of Tamil Eelam, the Rajapaksa government has been in full-control. The ICC has never intervened in order to investigate a government that has the capacity to clamp down and retaliate against civilians to the extent that the Sri Lanka government does. Still, the international community can take some actions. Perhaps the most feasible would to be to set up a Commission of Inquiry. This could be done by the Security Council (as in the case of Darfur) or, more likely, by the UNs Human Rights Council (as in Libya). And this is precisely what some, including the Sri Lankan Campaign for Peace and Justice want to see happen. They are joined by others, including the ever-eloquent Louise Arbour, who recently wrote an op-ed in support of such a commission: An inquiry mandated by an intergovernmental body like the Human Rights Council would produce a more complete record of the scale of civilian suffering, and would challenge the Sri Lankan governments denials that government forces were responsible for any significant loss of civilian life. A commission is also likely to uncover evidence of abuses by the defeated Liberation Tigers of Tamil Eelam in a form that would be hard for Tamils and Tamil organizations to deny. That would deflate a romanticization of the Tigers among Tamils that keeps alive Sinhalese fears that the Tamil insurgency might resume, and also gives the government an excuse for continued militarization and repression. By showing survivors of wartime abuses that the international community hasnt abandoned them, a commission mandated by the council could also undercut growing calls by Tamil diaspora organizations for more radical measures, and encourage victims of rights abuses from all of Sri Lankas ethnic and religious communities (the countrys main faiths are Buddhist, Hindu, Muslim and Christian) to continue seeking an end to institutionalized impunity. Such an inquiry wont solve all of Sri Lankas problems; the islands crisis of accountability and democratic governance runs too deep and is too complex to be resolved quickly. Nonetheless, increased authoritarianism, Sinhalese ethnic triumphalism and simmering Tamil resentment are clearly not the ingredients for a secure future. Both justice and reconciliation are needed for the Sri Lankan body politic to one day be healed. The tireless efforts of groups like the Sri Lankan Campaign for Peace and Justice and individuals like Navi Pillay and Louise Arbour are praiseworthy. But to effect tangible results, they know that they need the backing of the wider international community of states those same states which have been unable to achieve almost any degree of justice and accountability in Sri Lanka since the civil war ended. On 26 March, the UN Human Rights Council will vote on a resolution that may establish a commission of inquiry. Many hope the international community will finally be able to break the deadlock.
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WORTH READING
Monetary Compensation as a Remedy for Fair Trial Violations Under International Criminal Law New Criminal Law Review, Forthcoming By Yahli Shereshevsky March 6, 2014 When international criminal courts face violations of the right to a fair trial, they encounter a dilemma: if they provide a significant remedy, such as a stay of proceedings, the remedy inevitably undermines the ability to punish the perpetrators of international crimes; on the other hand, if they grant a minimal remedy or no remedy at all, the right to a fair trial is undermined. This dilemma has led to the adoption of an interest balancing approach to remedies. Under this approach, sentence reduction plays a prominent role in remedying fair trial violations that do not undermine the courts ability to accurately determine the accuseds guilt. This article argues that sentence reduction is an inadequate remedy, since it inevitably either harms the goals of international criminal sentencing or does not provide an effective remedy for violations of the right to a fair trial. Instead, monetary compensation should be the remedy for such violations. By granting monetary compensation the court creates a separation between the punishment and the remedy and thus can usually provide an effective remedy for the accused without harming the main goals of international criminal justice. Never Again? German Chemical Corporation Complicity in the Kurdish Genocide Berkeley Journal of International Law By Michael J. Kelly March 7, 2014 German chemical corporations were complicit in the gassing of Allied troops in World War I and concentration camp prisoners in World War II. The shock of the Holocaust resulted in adoption of the Genocide Convention and the determination to never let this happen again. Genocide, of course, has happened again, but the great irony is that German chemical corporations were once more complicit in the genocide that wiped out thousands of Kurdish civilians in northern Iraq in 1988. Corporations should be criminally liable for their conduct - including genocide. This paper reviews the evidence and makes the case for prosecuting German chemical corporations for their involvement in the Kurdish genocide. Transitional Justice for Tojos Japan: The United States Role in the Establishment of the International Military Tribunal for the Far East and Other Transitional Justice Mechanisms for Japan after World War II Emory International Law Review By Zachary D. Kaufman March 14, 2014 This article, authored by Dr. Zachary D. Kaufman, is published by invitation in the Emory International Law Reviews symposium issue on "The Future of the International Criminal Court in Light of Recent Developments." The article is based on a related lecture Emory Law School invited Dr. Kaufman to deliver on February 26, 2013. Although the creation of the first international war crimes tribunal the International Military Tribunal (IMT), also known as the Nuremberg Tribunal has been the focus of significant scholarly attention, much less academic analysis has concentrated on the establishment of the second such body the International Military Tribunal for the Far East (IMTFE), also known as the Tokyo Tribunal. To further fill this gap in the history of "transitional justice" institutions generally, and international war crimes tribunals specifically, this article documents and examines the United States governments (USG) role in the origins of the IMTFE. Part I provides an overview of what is popularly known as "Tokyo," discussing the negotiations leading to this transitional justice institution and then the trials themselves. Part II enumerates the transitional justice options the Allies generally and the USG specifically seriously considered and actually implemented for addressing Japanese suspected of perpetrating atrocities during WWII. Alongside the IMTFE, the Allies dealt with Japanese suspects through ad hoc Allied military tribunals, amnesty, and lustration. Part III assesses the USG role in the establishment of the IMTFE. Part IV explains several key developments in the process of establishing the IMTFE and other transitional justice mechanisms for postwar Japan. Finally, Part V concludes by reflecting on lessons learned from this case study of transitional justice.
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International Criminal Law for Retributivists University of Pennsylvania Journal of International Law By Alexander K.A. Greenawalt March 18, 2014 Responding to the historically unprecedented proliferation of international criminal tribunals during the last two decades, scholars have engaged in a rich debate about the normative foundations of international criminal law ("ICL"). The retributive theory of punishment which justifies punishment based on the culpability of the accused, rather than by reference its social benefits has met with widespread skepticism in these discussions. Some have argued that unique features of international criminal justice for example, the extreme selectivity of punishment or the lack of certain social or political preconditions are a poor match for retributive theory. Others have ignored retributivism altogether, or afforded the theory only passing mention. This Article counters the anti-retributivism strain by arguing that retributivism can indeed provide a meaningful framework for understanding ICL. First, I argue that in most respects retributive theory is no less plausible in the international setting than it is in the domestic setting. Understanding what claims retributive thinking might have upon ICL requires one to distinguish claims regarding the general justification required to defend punishment as a social practice the core concern of retributivist theory from the more specific questions of institutional design such as whether and when to create an international criminal tribunal, and how to set enforcement priorities that are most pertinent to ICL scholars I argue that, once these distinctions are sorted out, the anti-retributivist strain in ICL scholarship does little to engage retributivisms core claim that desert is necessary to morally justified punishment and provides an inherently good (if not exclusive) reason to punish irrespective of potential social benefits. I also argue that retributivism is more compatible than commonly supposed with current thinking about international criminal justice. The theory permits various models for engaging the compromises of real world institutions. It provides a powerful lens for understanding the design of ICL institutions such as the International Criminal Court ("ICC"), and is also compatible with dominant approaches to institutional decisions such as case selection and sentencing. Perhaps counter intuitively, retributivism can also supply a framework for sometimes favoring alternatives to the traditional criminal prosecutions pursued by international courts, or even for opposing ICL altogether. Finally, I argue that choice of punishment philosophy has less practical significance for ICL than theorists often assume. In particular, I argue that the choice between retributivism and other competing theories does little to resolve important policy dilemmas dividing theorists of ICL, including whether prosecution should sometimes be abandoned for amnesty or other alternatives. This point supports a broader argument that ICL is simultaneously over-determined and underdetermined by traditional punishment theory: While the core of ICL is consistent with multiple theories of punishment, these theories provide only limited practical guidance on the most divisive questions.
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War Crimes Prosecution Watch Staff
Founder/Advisor Professor Michael P. Scharf Editor in Chief Hilarie Henry Managing Editors Audrey Balint
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Rachel Berman-Vaporis Senior Technical Editor Peter Beardsley Associate Technical Editors Morgan Kearse Sarah Hutnik Casey McCullen Aaron Kearney Emerging Issues Advisor Judge Rosemelle Mutoka Contact: warcrimeswatch@pilpg.org
International Criminal Court

Central African Republic &Uganda Abigail Omojola, Senior Editor Sara Grout, Associate Editor Darfur, Sudan Andrew Udofia, Senior Editor Andrew Krumwied, Associate Editor Democratic Republic of the Congo Shira Straus, Senior Editor Amanda Soraiz, Associate Editor Kenya Tonise Webb, Senior Editor Andrew Moore, Associate Editor Libya Joshuah Lisk, Senior Editor Amanda Soraiz, Associate Editor Ivory Coast Michelle Faraji, Senior Editor Jiefei Yang, Associate Editor
Africa
International Criminal Tribunal for Rwanda Abigail Avoryie, Senior Editor Sara Grout, Associate Editor Mali Emily Gibbons, Senior Editor Patrick Maloney, Associate Editor Chad Chelsea Shenton, Senior Editor Kelly Gans, Associate Editor
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Special Court for Sierra Leone Joshuah Lisk, Senior Editor Jon Dawson, Associate Editor
Europe
Court of Bosnia and Herzegovina, War Crimes Section Laura Smolley, Senior Editor Tyler Kimberly, Associate Editor International Criminal Tribunal for the Former Yugoslavia Laura Smolley, Senior Editor Andrew Krumwied, Associate Editor Domestic Prosecutions in the Former Yugoslavia Alix Noureddine, Senior Editor Jiefei Yang, Associate Editor
Middle East and Asia

Extraordinary Chambers in the Courts of Cambodia Casandra Tice, Senior Editor Lois Yu, Associate Editor Special Tribunal for Lebanon Shefali Saxena, Senior Editor Jeong Soo Kim, Associate Editor Iraqi High Tribunal Tahera Javed, Senior Editor Samie Farhat, Associate Editor Syria Tahera Javed, Senior Editor Samie Farhat, Associate Editor Bangladesh International Crimes Tribunal Shefali Saxena, Senior Editor Madeline Jack, Associate Editor War Crimes Investigations in Burma Emily Gibbons, Senior Editor Lois Yu, Associate Editor
North and South America

United States Harrison Blythe , Associate Editor South & Central America Malea Hetrick, Associate Editor
Topics
Terrorism
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Abigail Omojola, Senior Editor Jacqueline Hazzan, Associate Editor Piracy Michelle Faraji, Senior Editor Kyunghwa Kim, Associate Editor Gender-Based Violence LeAnne Dao, Senior Editor Malea Hetrick, Associate Editor
Reports
UN Reports Abigail Avoryie, Senior Editor Kelly Gans, Associate Editor NGO Reports Samuel Dodoo, Senior Editor Tyler Kimberly , Associate Editor
Truth and Reconciliation Commissions

John Rogers, Senior Editor Sarah Stula, Associate Editor
Commentary and Perspectives

James Stevick, Senior Editor Richard Wanerman, Associate Editor
Worth Reading
Elizabeth Horan, Senior Editor David Litman, Associate Editor
War Crimes Prosecution Watch is prepared by the International Justice Practice of the Public International Law & Policy Group and the Frederick K. Cox International Law Center of Case Western Reserve University School of Law and is made possible by grants from the Carnegie Corporation of New York and the Open Society Institute. Grotian Moment: The International War Crimes Trial Blog: http://law.case.edu/grotian-moment-blog/ Frederick K. Cox International Law Center: http://law.case.edu/centers/cox/ Cox Center War Crimes Research Portal: http://law.case.edu/war-crimes-research-portal/
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War Crimes Prosecution Watch, Vol. 8, Issue 26 - March 24, 2014

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War Crimes Prosecution Watch, Vol. 8, Issue 26 - March 24, 2014

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War Crimes Prosecution Watch, Vol.

8, Issue 26 -- March 24, 2014

FREDERICK K. COX INTERNATIONAL LAW CENTER

WAR CRIMES PROSECUTION WATCH

Founder/Advisor Michael P. Scharf

INTERNATIONAL CRIMINAL COURT

Democratic Republic of the Congo

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Cote d'Ivoire (Ivory Coast)

Special Court for Sierra Leone

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MIDDLE EAST AND ASIA

Iraqi High Tribunal Syria Special Tribunal for Lebanon

Bangladesh International Crimes Tribunal

War Crimes Investigations in Burma

NORTH AND SOUTH AMERICA

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South & Central America

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TRUTH AND RECONCILIATION COMMISSIONS

COMMENTARY AND PERSPECTIVES

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INTERNATIONAL CRIMINAL COURT

Central African Republic & Uganda

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The Court of Bosnia and Herzegovina, War Crimes Chamber

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