A Full War Crimes Report

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

Uganda Government News: Col. Kwoyelo's Trial Scheduled for Next Month
Uganda Pulse
June 21, 2011

The trial of Col. Thomas Kwoyelo over the atrocities he allegedly committed during the Lord's Resistance Army (LRA) war in Northern Uganda will take place in July.

Kwoyelo is one of the war crime suspects and a key character in the insurgency which took place in northern Uganda over the last 23 years.

Col. Kweyelo is accused of kidnap, murder, torture of civilians, rape and manslaughter the crimes he allegedly committed in northern Uganda particularly Gulu, Kitgum and Pader among other districts.

He is set to appear before the War Crime Division of the High Court sitting in Gulu district on July 11th, 2011.

The coordinator of Uganda Coalition for International Criminal Court, Joyce Apio recently told journalists in Gulu that Kwoyelo's trial was delayed by the lack of documents needed to guide the trial of war crimes suspects.

The UPDF captured Col. Kweyelo on February 3, 2009 from the Democratic Republic of Congo. Kweyelo who is facing 12 accounts is currently detained at Gulu Prison.

Central African Judicial Official Testifies in Bemba Trial
BembaTrial.org
By Wakabi Wairagala
June 27, 2011

Flavien Mbata, a director in the Constitutional Court of the Central African Republic (CAR), today testified in the trial of Congolese war crimes accused Jean-Pierre Bemba. Testifying via video link from the Central African capital Bangui, the witness recounted how Mr. Bemba's troops occupied and looted his house and presented to court documents he said the retreating troops left behind in his house.

When the Movement for the Liberation of Congo (MLC) soldiers arrived in the Bangui suburb of Point Kilomètre 12 (PK 12) on November 1, 2002, the witness and his family fled and went to live with his parents. They returned home in February 2003 after learning that the soldiers had departed, only to find their house had been looted.

"The only thing that we were able to recover is the pick-up vehicle that was recovered by my bodyguard. My own property, I was not able to recover anything. I was simply told that they had taken the property away to some unknown destination," said Mr. Mbata.

He also testified that he found on the floor of his bedroom some documents authored by the MLC. He gave those documents to International Criminal Court (ICC) investigators. Today, prosecutors presented these documents in court. They included an information bulletin and a military training manual, both headed "Congolese Liberation Army."

"What was the substance of the documents?" asked prosecution lawyer Petra Kneur.

"The training manual was to be used for military training," explained the witness, who was previously a prosecutor in Bangui. "The typed or handwritten document, at the heading it said MLC, and they were reports drafted by these militia men and [appeared] to be sent on to their superiors."

Asked how he knew that MLC soldiers had authored the documents, Mr. Mbata replied, "Simply because I found them in my bedroom immediately after their departure." He said the documents were written in military style.

Ms. Kneur then questioned why he kept the documents. The witness responded, "I wanted to keep them for memories' sake because at the time I did not think there would be a trial for those who looted my home."

Mr. Bemba, 48, is facing three counts of war crimes (rape, murder, and pillaging) and two crimes against humanity (rape and murder) at the ICC. Prosecutors charge that he failed to stop or punish his MLC troops as they rampaged against Central African civilians. He has denied the charges.

Tomorrow morning, the trial continues to hear testimony from Mr. Mbata, who is testifying with his face visible to the public.

Central African Soldiers Looked on as Bemba's Soldiers Rampaged
BembaTrial.org
By Wakabi Wairagala
June 28, 2011

Soldiers from the Central African Republic (CAR) army looked on as Congolese soldiers brutalized civilians in the capital Bangui, according to testimony heard today at the trial of war crimes accused Jean-Pierre Bemba.

Even when Central African civilians reported to their soldiers that the foreign fighters belonging to Mr. Bemba's group were brutalizing them, no action was taken, said the witness. Testifying for the second day, Flavien Mbata, a director in the Constitutional Court, described the inaction of his country's military when he reported to them that Mr. Bemba's troops had forcefully occupied his house.

He asked a particular military officer referred to in court as 'Nick' to evict the intruders, but this officer took no action and the Movement for the Liberation of Congo (MLC) soldiers occupied the house for three months.

"I asked that person [Nick] whether he could do something, that the house they were occupying was not the house of a politician but a judge and therefore they should leave my home," Mr. Mbata narrated. In response to questioning from Marie-Edith Douzima-Lawson, who is one of the legal representatives of victims participating in the trial, the witness added that he did not receive feedback from 'Nick.'

Also going by the pseudonym 'witness 108,' Mr. Mbata said, "I thought that the army, which is supposed to be able to protect the civilian population, should have acted. Given that I was a magistrate, I thought they would have put pressure on the occupiers so that my home [would] be made available to me. To this day, I do not understand the attitude of the authorities."

Yesterday, Mr. Mbata presented to court documents he said retreating MLC troops left behind in his house. The documents, which he found on the floor of his bedroom when he returned to his house in February 2003, included an information bulletin and a military training manual. The documents were titled "Congolese Liberation Army."

Prosecutors at the International Criminal Court (ICC) charge that Mr. Bemba's troops raped, pillaged, and murdered civilians while in the CAR during the 2002-2003 conflict and that Mr. Bemba as their commander-in-chief failed to restrain or sanction them. He denies the charges.

Meanwhile, under cross-examination by defense lawyer Aime Kilolo-Musamba, Mr. Mbata stated that besides informing 'Nick' of the MLC's occupation of his home, he did not report the incident to any other authorities. He only reported the looting, on September 24, 2008 (six years later) to the Gendarme when he learned that the ICC had opened investigations into the crimes committed and that witnesses and victims could come forward.

Also in his testimony today, Mr. Mbata told of the numerous occasions he saw the Congolese soldiers driving from Point Kilomètre 12 (PK 12) to the center of Bangui. They travelled in green Central African military vehicles and they were often accompanied by high-ranking officers of the CAR army.

Some previous witnesses have stated that the MLC disarmed Central African soldiers and did not allow them into the areas where the Congolese troops were. The trial has also heard that at one time there was a fire fight when local soldiers attempted to stop Mr. Bemba's troops from transporting looted goods to the Democratic Republic of Congo. The MLC were in that country to help its former president fight off a coup attempt.

The trial will continue to hear Mr. Mbata tomorrow morning.

Witness Unsure Whether Pillagers Were Bemba's Soldiers
BembaTrial.org
By Wakabi Wairagala
June 29, 2011

War crimes accused Jean-Pierre Bemba's defense today challenged the evidence of Flavien Mbata, a Central African judicial official testifying in his trial at the International criminal Court (ICC). Ultimately, the witness conceded that he was not sure whether the soldiers who pillaged his home belonged to the accused's group.

Mr. Mbata, who started testifying on Monday, has told the trial presided over by Judge Sylvia Steiner that soldiers belonging to Mr. Bemba's Movement for the Liberation of Congo (MLC) forcefully occupied his house when they arrived in the Point Kilomètre 12 (PK 12) neighborhood in November 2002.

Under cross-examination by defense lawyer Aime Kilolo-Musamba, Mr. Mbata today asserted that the facts relating to the occupation of his home were given to him by individuals referred to in court as 'Peter' and 'Mary.'

When the ICC opened investigations into the crimes committed in the Central African Republic (CAR), Mr. Mbata submitted to a court investigator documents he says he found on the floor of his bedroom, which were allegedly authored by the MLC. He also gave the court official - referred to in court as 'Francoise'- the statements made by 'Peter' and 'Mary' to the local police regarding the occupation of his house. The witness also handed 'Francoise' a list of items looted from his home and details of the damage caused to his house.

Mr. Mbata, a senior lawyer who is giving evidence via video link from the CAR capital Bangui, testified that he asked the Gendarme, or local police, to interview 'Peter' and 'Mary' "in order to complete the case file" on the occupation and looting of his home.

"Are we therefore to understand that your evidence is made up of the report you signed in 2008 - five years after the facts, the interview reports of 'Peter' and 'Mary' - interviews that were conducted at your request and the reports of which were drawn up more than five years after the events, and documents you allege belong to the MLC?" asked Mr. Kilolo-Musamba.

"Yes, that is correct," replied Mr. Mbata.

The witness explained that since he was personally not at his home when it was invaded, he could not tell who actually pillaged it. However, after the intruders withdrew, he was able to recover beds, a chandelier, garden furniture, and a cupboard. Young men in the neighborhood informed Mr. Mbata that his car had been abandoned around Point Kilomètre 11 (PK 11), so he was also able to recover it too.

"Is it true that you were unable to identify who would have tried to steal or pillage this car?" the defense lawyer asked.

"I was not able to identify [who took the vehicle], but this vehicle was on the compound. Surely it was the people who occupied the compound who would have tried to steal it," replied Mr. Mbata. "But as I said, I was not in the area, I can't give you any other clarification."

Mr. Bemba is being tried over his alleged failure to stop or punish his troops as they raped, murdered, and pillaged in the CAR between October 2002 and March 2003. The troops were in the country to help its then president Ange-Félix Patassé fight off a coup attempt led by François Bozizé, who had been sacked as army chief of staff. Mr. Bozizé is the current president of the country.

Mr. Bemba, a former vice president of the Democratic Republic of Congo, has denied all charges against him, stating that once his troops left Congo, they were no longer under his command. Besides, he has argued that any of the several armed groups that were active in the CAR at the time could have committed the crimes which ICC prosecutors claim were committed by his fighters.

The defense will continue cross-examining Mr. Mbata tomorrow.

Central African Magistrate Concludes Testimony
BembaTrial.org
By Wakabi Wairagala
June 30, 2011

Today, Flavien Mbata, a magistrate in the Central African Republic (CAR) who has been testifying in the trial of Jean-Pierre Bemba at the Hague-based International Criminal Court (ICC), completed giving evidence. He has testified for four days via video link from the CAR capital Bangui.

Mr. Mbata, who serves as a director in his country's Constitutional Court, has recounted how a group of the accused's troops occupied and looted his house. He has also presented to court documents he said retreating troops left on the floor of his bedroom after their three month occupation of his house. The documents included an information bulletin and a military training manual, both headed 'Congolese Liberation Army.'

In his final day of testimony, Mr. Mbata narrated how rebels led by General Francois Bozizé attempted to topple the country's then president Ange-Félix Patassé on October 25, 2002. The rebels who were based in the northern part of the country, advanced on Bangui, passing through Point Kilomètre 12 (PK 12).

He said that seven days later on November 1, 2002, Mr. Bemba's militia arrived in PK 12. That day, he received a phone call from an individual going by the in-court pseudonym 'Mary' informing him that troops from the Movement for the Liberation of Congo (MLC) had invaded his house.

Aime Kilolo-Musamba, one of lawyers defending Mr. Bemba in the trial, then read out excerpts of a speech, allegedly delivered by Mr. Patassé in the seven days following the coup attempt: "Regarding what happened, those who suffered most during the events of October 25, [2002] were the magistrates...the magistrates suffered a lot, their property was destroyed, they were driven out of their homes, their gowns were taken away and rubbed in the mud."

"Considering that speech, did you not imagine or think that the militia, who entered your compound and pillaged your residence, were Bozizé's rebels?" asked Mr. Kilolo-Musamba.

"No, I cannot confirm that," replied Mr. Mbata. "The speech was of a general nature. I cannot rely on it and say it was Bozizé's rebels."

Mr. Bemba, a Congolese national, is on trial at the ICC for failing to stop or punish his MLC soldiers, who allegedly carried out widespread rapes, murders, and plunder in the CAR during 2002 and 2003. The MLC troops arrived in the country following the October 25, 2002 coup attempt, at the invitation of Mr. Patassé who was desperate to beat back the insurgents.

While acknowledging that his troops were present in the CAR during the conflict, Mr. Bemba has denied all charges against him, claiming that not only could any other armed militia group involved in the conflict have committed the alleged crimes, but also that once the MLC left Congo, they were no longer under his control but that of Mr. Patassé.

Tomorrow morning, the prosecution is due to call a new witness going by the pseudonym 'witness 169.'

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Darfur, Sudan

Official Website of the International Criminal Court
ICC Public Documents - Situation in Darfur, Sudan

UN: China Should Arrest Al-Bashir
NPR
June 30, 2011

The U.N.'s top human rights official criticized China on Thursday for failing to arrest Sudan's president so that he can be brought to trial on war crimes charges.

U.N. High Commissioner for Human Rights Navi Pillay told reporters in Geneva she was "disappointed" that China welcomed Sudan's President Omar al-Bashir during a visit this week, rather than arrest him to ensure he stands trial.

Pillay said that "the whole world favors trial" for al-Bashir on charges of war crimes, crimes against humanity and three counts of genocide, the first time the world's permanent war crimes tribunal issued genocide charges.

China has a duty to enforce warrants by the International Criminal Court, she said, despite the fact that it's not a member of The Hague, Netherlands-based tribunal. The Sudanese leader defiantly rejects the charges and the authority of the court.

"There is a duty and a responsibility on the part of every government including China to assist the court in bringing to justice individuals who have been indicted by the court," Pillay said. "It's disappointing when states do not deliver on this responsibility."

China's mission to the U.N. in Geneva did not immediately respond to requests for comment.

Even nations that are members of the ICC, such as Chad and Kenya, have declined to carry out the court's international warrant, citing fears it could derail efforts to create peace in Sudan's western Darfur region.

An arrest warrant for al-Bashir said last year there were "reasonable grounds to believe" that since April 2003 Sudanese forces attempted genocide against the Darfur tribal groups Fur, Masalit and Zaghawa. Judges also issued a warrant in 2009 against the president over crimes against humanity in Darfur. The U.N. says the conflict has left up to 300,000 people dead and forced millions to flee their homes.

The U.N. Security Council granted the ICC jurisdiction over Sudanese war crimes in 2005, but the court has no police force or ability to enforce its orders without cooperation from governments.

The Sudanese leader has continued to visit countries where he is not likely to face arrest, such as Ethiopia, which is not a member of the ICC, and Saudi Arabia, where he went on a Muslim pilgrimage.

Al-Bashir, who left Beijing on Wednesday for the eastern Chinese port city of Qingdao, was expected to leave China later Thursday to return to Sudan.

Pillay said she could assure everyone, based on her experience as a judge for the ICC, that it would conduct a fair trial.

"It's not like we're calling for an execution of someone, we're calling for an arrest of someone," she said.

Luis Moreno Ocampo, the ICC's chief prosecutor, told the U.N. Security Council last month that genocide and crimes against humanity have continued in Darfur, masterminded by al-Bashir.

Moreno Ocampo said al-Bashir was behind air attacks on civilians and the killing of members of the Fur, Masalit and Zaghawa. The Security Council referred the Darfur conflict to the court in 2005.

Sudan's U.N. Ambassador Daffa-Alla Elhag Ali Osman told the council, however, that Sudan is not a member of the court and Moreno Ocampo's statement and written report to the council in New York were "overloaded with ... unfounded accusations" of rape, killing, war crimes and genocide.

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Democratic Republic of the Congo

Official Website of the International Criminal Court
ICC Public Documents - Situation in the Democratic Republic of the Congo

Commander Yuda Planned the Attack on Bogoro, Witnesses Claim
KatangaTrial.org
By Jennifer Easterday
June 21, 2011

Germain Katanga, alleged commander of the Ituri Patriotic Resistance Force (FRPI) militia, and Mathieu Ngudjolo Chui, alleged former leader of the Nationalist and Integrationist Front (FNI) militia, are charged with war crimes and crimes against humanity allegedly committed in 2003 in Bogoro, a village in the Ituri Province of eastern Democratic Republic of the Congo (DRC).

The defense for Katanga is nearing the conclusion of its case. During this reporting period, four witnesses were called to testify:

Mr. Jeannot Malivo Kagaba (Witness 129)

Mr. Christian Mbodjima Mbaraza (Witness 160)

Mr. David Adirodu Acheli (Witness 001)

Witness 148

Their testimony is summarized below. These witnesses generally testified about the relationship between various Ngiti militia commanders, claiming that there was a great deal of mistrust and rivalry between them. These witnesses also discussed the attack on Bogoro, saying that it was Commander Yuda who planned the attack-not Katanga. According to these witnesses' testimony, Katanga was not in Bogoro on the day of the attack.

It is not anticipated that the Katanga defense will call many more witnesses. After the Katanga defense team concludes calling witnesses, the defense for Ngudjolo will begin calling witnesses.

Mr. Jeannot Malivo Kagaba (witness 129)

Malivo, a Lendu Bindi (Ngiti), took the stand to testify for the defense of Germain Katanga. He currently serves as a senior advisor to the senior minister of finance and economy in Kisangani. He testified that he has never served in any militia group or received military training.

During direct examination, Malivo testified about living in Bunia and the surrounding area during the conflict. He said that he lived in Aveba from December 2002 until May 2003.

Malivo said that he met Germain Katanga when he arrived in Aveba in January 2003. When he met Katanga, Malivo had been told Katanga was a colonel, he said.

Malivo also testified that he had visited the military camp in Aveba, called the BCA, which was run by someone named Mr. Mbadu.

The witness described that while he was in Bunia, before the September 5, 2002 attack on Nyankunde, he could see heavy mortar fire in Songolo, another village nearby. He said he saw huts on fire and later heard that Colonel Kandro's (an Ngiti military leader) military camp had been attacked and that Kandro had fled. Malivo testified that he had heard the UPC, which was based in Nyankunde, was responsible for the attack.

Malivo testified that subsequently, Kandro and his men attacked Nyankunde on September 5, 2002. Kandro was killed shortly thereafter, the witness said, by the men of another colonel, Cobra Matata. Another leader called Mr. Yuda took over Kandro's men, who were called the garnison, the witness claimed. The men were later relocated to Kagaba, Malivo said.

The witness was in Aveba during the February 24, 2003 attack on Bogoro. He testified that he heard heavy mortar fire starting at 5:00 a.m., and could hear gunfire when he went outside at 6:00 a.m. He said that he rushed to the health center to use the white phonie and tried, without success, to phone local villages to find out what was going on. Later that morning, Malivo said, they were told by the telephone operator from Mandre, Macheche, that Bogoro had been attacked by the garnison based in Kagaba. The garnison was accompanied by the Nombe and Lakpa, he said.

He said that Katanga also came to the health center that day, dressed in civilian clothing, to find out what was happening. Commander Yuda was brought to the Aveba health center with wounds, and Katanga rushed over to see what had happened to Yuda.

Katanga's defense counsel asked the witness about another combatant named Kisoro. Malivo said that Kisoro had his own troops and was based in Kaswara, near Aveba. Kisoro frightened the people who were in Aveba, including the witness, because people from Aveba would be threatened when passing through Kaswara, Malivo said. According to Malivo, there was an atmosphere of distrust between the commanders, who did not want to be under the leadership of others. Malivo said that Kisoro did not like Katanga, and he had attacked Aveba twice.

On cross-examination, Malivo testified that he had read the FRPI manifesto, and while he was in Aveba, he had learned that it was a resistance movement created to bring together the Ngiti combatants.

He also claimed that Katanga replaced Kandro after Kandro's death but in name only. Malivo said that Katanga had no authority over Commander Yuda, who controlled Kandro's soldiers in the field.

Malivo testified that he had seen Mathieu Ngudjolo Chui in Kinshasa. Malivo said he had heard that Ngudjolo was a nurse in the general hospital in Bunia and that he later became a soldier in Zumbe before joining the FARDC (the armed forces of the DRC).

During his cross-examination, Malivo admitted that he had family members who had been in militia groups. One of these was Philemon Manono Anyodi, who served as the private secretary to Germain Katanga. Manono has been detained in the Makala prison with others from Ituri since March 2005, the witness acknowledged. Malivo admitted that Manono was arrested with Katanga, and Malivo has been in contact with Manono since he was detained. The witness also admitted that Manono calls him from time to time from the prison by mobile phone.

The prosecution accused the witness of having spoken about the case with Manono. Malivo said that they had discussed many things, but he could not recall discussing the case. He admitted that Manono would give him information about Katanga and Katanga's situation in The Hague. He also acknowledged that he got information about the case from the internet but denied that he obtained information on the case while in Kinshasa.

The prosecution also alleged that the witness was lying to the court in order to protect Katanga by testifying that Katanga came to the Aveba health center to use the white phonie. The witness confirmed that there was also a white phonie at the BCA camp. The prosecution asked why Katanga had gone to the health center and not the BCA camp to use the white phonie. The witness said he did not know why but stood by his previous testimony.

Mr. Christian Mbodjima Mbaraza (witness 160)

Mbodjima, an Ngiti from Aveba, is the private secretary of the provincial minister of finance and the economy in the DRC.

Mbodjima testified that he first met Katanga in Aveba in 1998 while they were both students. They lived very close to each other and met often, he said.

The witness described the general state of insecurity in the region around 2001, when he was in his final year of secondary school in Gety. He testified that there was fighting between Ugandan soldiers and combatants led by Colonel Cobra, Colonel Kandro, Kisoro, and others.

Mbodjima described how, in August 2002, he met commanders and combatants on a trip from Bunia to Aveba. He saw Colonel Kandro, Colonel Cobra, Move, and Katanga. Katanga had a weapon with him at the time, Mbodjima said, but he did not know what Katanga was doing.

Like the previous witness, Mbodjima also testified about the attack on Nyankunde on September 5, 2002, and described it as a revenge attack by Colonel Kandro for the attack on Songolo. He said that the two commanders from Aveba, Nono and Abala, were both killed during the attack on Nyankunde. Like Malivo, Mbodjima said that Kandro was later killed by Colonel Cobra.

Before the attack on Bogoro, Mbodjima explained, he would travel to Aveba from Gety. During those visits, he would meet Katanga, who had a weapon and was surrounded by bodyguards, the witness testified. However, Mbodjima claimed, he did not know Katanga's military function or his specific rank.

After the attack on Bogoro, the witness met Katanga several times in Aveba, he said. He said he still did not know what position Katanga had in the militia, however.

"I have never taken the courage to ask him what position he held within that militia," Mbodjima said. "He himself never told me."

On cross-examination, the witness testified that all Ngiti fighters were together at the time of the attack on Nyankunde. He said he did not know where Katanga was on the day of that attack.

Mbodjima also confirmed that when he saw Katanga in 2002 on the witness' trip from Bunia to Aveba, Katanga was carrying a weapon, but the witness did not know whether Katanga was a commander at that time.

The witness first heard of the FRPI in 2004, and it was only then that he learned that Katanga was the president of the FRPI, he said.

Mr. David Adirodu Acheli (Witness 001)

Adirodu testified that he fled Bunia in September 2002, and went to Zumbe. After two weeks in Zumbe, he said he left with a group of civilians and APC (Congolese People's Army) soldiers under the command of Bahati Dezumbe. He went to Nyabiri, where he joined the Ituri militia, he said.

He testified that he demobilized in 2005. He described the structure of the demobilization process, explaining that there were children as well as adults who demobilized. He said that he worked as a liaison officer in the demobilization process.

The witness testified about the process of demobilizing children and the role of the various NGOs involved. When a child arrived, he would find the witness and the officials of CONADAR (DRC's National Commission for Disarmament, Demobilization and Reinsertion) before going to present himself to Terre des Enfants, Adirodu said. He claimed the child then would be questioned about where he came from, which group he came from, and the name of the leader of his group. CONADER acted as witnesses to the questions the witness asked, he said.

After the first series of questions, if the child could not give the name of the leader, the witness said he would send the child home. Adirodu also said he would send home those children who said they were just there to collect the benefits. Eligible children would go through further processing with Terre des Enfants, he said. Eventually, the witness was told by one of the demobilization authorities to let other children demobilize, and let the children from the community, including children of militia soldiers, benefit from the demobilization site.

Adirodu also testified about his role in the militia. He said that he was secretary to a Commander Movi (phonetic) and later moved to Aveba.

Regarding the fighting in Bogoro, the witness said that a delegation arrived in Aveba from Beni to see Katanga. They said they wanted to attack Bogoro and asked Katanga if he could help them. According to Adirodu, Katanga replied that Bogoro was not a zone under his control; he suggested that they go see Commander Yuda because Bogoro was part of his territory. These people saw Yuda and planned the attack on Bogoro with Yuda, the witness testified. Adirodu said that he heard that many soldiers were killed during the fighting, and that Yuda was there and had been injured. He also said that Commander Bahati participated in the attack.

On cross-examination, the prosecution asked the witness about his relationship with members of Katanga's immediate family and other defense witnesses and asked whether the witness had spoken to them about the trial. Adirodu said that he indeed spoken with them on occasion but not about the trial. The witness denied having spoken about the case with anyone.

Adirodu also said that he heard that Kandro led the Ngiti in the battle on Nyankunde. The witness said he did not know whether there were Lendu fighters in this battle because he was not there.

Kandro was killed by Cobra Matata after the September 2002 attack on Nyankunde, Adirodu said. Katanga was supposed to take over from Kandro, but he did not become the leader of the Ngiti fighters until after the attack on Bogoro, the witness claimed.

The prosecution also asked the witness about his knowledge of Ngudjolo's military positions. Adirodu said that he did not know whether Ngudjolo was a commander in Zumbe, as he thought that Commander Bahati was the leader of the combatants there. He also said that in March 2003, after the attack on Bogoro, he heard that Ngudjolo was the leader of the Lendu combatants and was the Chief-of-Staff of the FNI/FRPI.

Adirodu was also questioned by the legal representative for child soldier victims. He asked Adirodu how he estimated the age of children who came to the demobilization center. The witness said, "When you look at a boy, you see his physical condition and his behavior, and on that basis you can estimate his age."

Adirodu also discussed how the demobilization process at first did not have many children participants. He could not say why it was initially unsuccessful and why child soldiers did not come to demobilize. He claimed that it was only after they decided to open up the process to other children from homes where there were fighters that more children came.

"I know that it was said that the sites were only going to receive children who had been in armed groups, and I think that's the reason why there weren't enough children," he said. "In the end, I didn't make a distinction between the children who had been in the camp and others who had been traumatized."

Witness 148

This witness testified with protective measures, including a pseudonym and voice and facial distortion. Much of his testimony was given in closed session. He testified that he participated in a battle in Tchey under Commander Kandro, when Tchey was attacked by Ugandans. The next battle involved an attempt to "liberate" the area of Aveba, where the Ugandans and others were looting the drugs from the hospital.

The witness said he later went with Kandro to Songolo, and he described other battles against the Ugandans that took place in the area.

When Lopondo was chased out of Bunia, the witness testified that he was in Songolo. The witness saw Lopondo when he arrived in Songolo and said that they used the witness' bicycle to transport Lopondo around the village. After Lopondo left, the witness said, Songolo was attacked by Ugandans, the Bira, and the UPC (Union of Congolese Patriots, a Hema militia allegedly led by Thomas Lubanga, who also faces charges at the ICC).

After the attack on Songolo, the witness said, the combatants prepared for an attack on Nyankunde. He claimed that the commanders in charge of the Nyankunde attack were Kandro, Cobra Matata, and an APC soldier, Fauste.

Cobra Matata later killed Kandro, the witness testified, and then attacked Kandro's fighters based in Avenuma. According to the witness, Kandro's soldiers fled to Kagaba, where they remained under the command of Commander Yuda.

The witness also testified that he participated in the attack on Bogoro and explained that the attack was carried out by a number of groups working together. Yuda ordered the attack to be planned, the witness said. Although he admitted that civilians were killed during the attack, he said that many of them were armed. He denied seeing child soldiers during the attack or women being raped. He said he did not see Katanga on the day of the Bogoro attack.

The witness also testified that Katanga was appointed as the head of the FRPI, but the witness could not remember when.

The defense counsel for Ngudjolo also questioned the witness on the Bogoro attack. The witness reiterated that it was Yuda who planned the attack, together with his deputy Androso Zaba Dark. Dark remained as commander in Bogoro after the attack.

During cross-examination, the witness testified that Kandro was the overall commander of the Ngiti combatants.

His cross-examination continued and will be reported on in the next report.

Trial Chamber Orders Protective Measures, says Witnesses Could be Returned to the DRC if Asylum Claim Rejected
KatangaTrial.org
By Jennifer Easterday
June 23, 2011

Yesterday, in the International Criminal Court (ICC) trial of Germain Katanga and Mathieu Ngudjolo Chui, Trial Chamber II ordered the Registry to put in place certain protective measures for three defense witnesses upon their return to the Democratic Republic of the Congo (DRC). The witnesses, who have been detained in the DRC for their alleged role in the murder of UN peacekeepers, testified that the Congolese government, including President Joseph Kabila, is responsible for the February 2003 attack on Bogoro. The three witnesses have argued that they will face security risks if they are sent back to prison in the DRC and have filed an application for asylum in the Netherlands.

A discussion and background to this issue can be found in previous posts, including the commentary from June 6, 2011.

Following a status conference held on May 12, 2011 about the asylum issue, the Chamber asked the Victims and Witnesses Unit (VWU) whether its assessment of the witnesses' risk had changed in light of the arguments raised during the conference. On May 17, the Registry submitted a new risk assessment to the Chamber. It maintained its previous assessment of the situation. Following observations from the Katanga defense team and counsel for the detained witnesses, the chamber ordered the Registry to contact the DRC authorities to discuss what protective measures could be implemented for these witnesses. The risk assessment and responses to it are discussed in more detail here.

On June 7, the Registry submitted a report on the outcome of its consultations with the DRC, which is discussed in more detail below. Shortly thereafter, on June 9, the Chamber issued a decision on the request of the three detained witnesses to have access to the Dutch asylum procedure. This decision is discussed here. The Chamber found that the assessment it is required to perform to protect witnesses is distinct from that performed by a State in assessing the risk of persecution under an asylum claim in order to respect the principle of non-refoulement.

It should also be recalled that the official position of the Dutch immigration authorities, according to representatives of the Dutch government during the status conference, was that the ICC's determinations on witness protection and security would influence the decision of the immigration authorities. The Dutch authorities stated that the asylum claim could not be decided until the ICC has made findings on the witnesses' security. According to the lawyers representing the witnesses in their asylum claim, this position is contrary to Dutch asylum law and practice.

In the latest decision, the Trial Chamber determined that a number of security measures proposed by the ICC Registry and endorsed by the DRC authorities would sufficiently protect the witnesses if they are returned. However, the Trial Chamber noted that the witnesses would only be returned to the DRC if their Dutch asylum application is refused. The fate of these witnesses, therefore, lies in the hands of the Dutch immigration authorities, who may rely on this decision when making their determinations in the asylum case.

The Chamber's decision is summarized below.

Risks Purportedly Faced by the Witnesses

The Chamber outlined the risks the witnesses claim they will face if they are returned to the DRC. The Chamber stated:

The risk alleged by the detained witnesses is not defined with great precision. They identify several potential scenarios in which the authorities of the DRC might harm them directly or indirectly. In summary, they claim to fear

(a) that zealous pro-government militants, ostensibly not under the control of the DRC authorities, might harm them;

(b) that they might be summarily executed or disappeared, possibly under the guise of an attempted escape, poisoning, villainous crime or vengeance by alleged victims or militants loyal to the authorities;

All these alleged potential threats are said to emanate, directly or indirectly, from the authorities of the DRC.

Whether any attempted harm to the witnesses was linked to their testimony or was caused by the DRC authorities, however, would be impossible to determined, the Chamber said.

"If the witnesses are to be returned to the DRC, they must therefore be protected against every potential source of danger that may be linked to their testimony before the Court," the Chamber stated.

Protective Measures Suggested by the Registry

The decision detailed the proposals made by the Registry for protective measures it could put in place if the witnesses should be returned to the DRC. The Chamber also noted that the witnesses considered these proposals insufficient.

On June 7, 2011, the Registry submitted a report to the Chamber on the outcome of consultations it had with DRC authorities, including the focal point of the DRC for cooperation matters and the Director of the Centre pénitentiaire et de réhabilitation de Kinshasa (CPRK Makala). The Registry made several proposals for protective measures for the three witnesses:

Housing all three witnesses in the "aile 11? of the CPRK Makala

The possibility for the Court to make regular visits to the witnesses detained in the prison to ensure the conditions of their detention;

The possibility to strengthen the cell doors of the witnesses detained at the expense of the Court, including by adding additional locks;

Recruiting additional guards for "aile 11" and training them on the standards of prison conditions, at the expense of the Court;

The addition of 1 to 2 cameras to monitor public areas of wing 11 at the expense of the Court;

Improving sanitation in "aile 11" (the Registry noted that this is hardly comparable to a measure of protection.)

The Congolese authorities also raised the possibility of transferring the three detained witnesses to the officers' quarters of another, recently renovated, detention center.

The Registry submitted that although there are risks inherent to being held in a prison environment, these risks were no greater to the witnesses for having given testimony before the ICC. The Registry considered that "the objective level of risk remains unchanged by the testimony."

In particular, the Registry also noted that the publicity and international attention garnered by these recent proceedings will help protect their safety, especially considering the "new commitment by the Congolese authorities with regard to the safety of detained witnesses."

Proposed Security Measures Insufficient, Witnesses Argue

The detained witnesses, however, do not consider these protective measures adequate. In observations submitted to the Trial Chamber, they argued that verbal assurances given by the Congolese authorities should be considered with care. In particular, they argued that the "real intention" of the DRC authorities makes the proposed measures "implausible."

The measures will not protect them from the threat of harm from the "highest authorities of the DRC," they claimed. They note that "l'aile 11" falls under the immediate authority of the special security adviser to the President of the DRC and is guarded by soldiers from the military intelligence agency (ex-DEMIAP, Détection Militaire des Activités Anti-Patrie).

They further noted that nothing obliges the Congolese authorities to allow the suggested visits by the Registry to ensure the conditions of their detention. Their status as civilians would prohibit their transfer to the other prisons suggested by the DRC, the witnesses averred.

DRC Promises not to Harm Witnesses

The DRC, however, submitted to the Trial Chamber that the DRC authorities have no intention of retaliating against the witnesses.

They claimed that they were "in total ignorance of the contents of statements made by the four witnesses" because the Court had adopted "measures ensuring strict confidentiality." However, the Chamber noted that contrary to the DRC's claims that it adopted strict security measures during the witnesses' testimony, the three witnesses all testified in public. "The DRC authorities are thus perfectly capable of knowing the exact content of the testimonies of the three witnesses."

The DRC assured the Chamber that a transfer to a new prison (Ndolo) would be possible (apparently irrespective of the witnesses' civilian status). It also asserted that it accepted the protective measures proposed by the Registry and claimed that it was ready to conclude a protocol with the Court about monitoring mechanisms.

Chamber has Strict Obligation to Protect Witnesses

The Chamber reiterated that it had a strict obligation to protect the security of witnesses appearing before it. As a judicial body, therefore, it was required to weigh the competing rights and interests of the witnesses and the interests of the DRC arising out of the cooperation agreement between the DRC and the ICC.

The Chamber regretted that the DRC authorities interpreted its efforts to find an adequate and balanced solution as violating its mandate but appreciated the DRC's efforts to find a solution to a "novel and unforeseeable situation involving seemingly conflicting legal requirements."

The Congolese Minister of Justice and Human Rights, His Excellency Luzolo Bambi Lessa personally committed himself, on behalf of "the highest authorities of the Congolese state, that no harm will befall the three witnesses if they are returned to the DRC." The Chamber noted that in spite of such diplomatic assurances, it still must conduct an independent risk-analysis. However, the Chamber considered the assurances of Minister Luzolo Bambi "must incontestably be treated with the greatest respect and must be presumed to have been made in good faith."

The Chamber considered that the formal assurances given by the DRC authorities carry significant weight, as they commit the DRC not only to the Court but also to the Assembly of States Parties.

The Chamber also noted that the DRC has claimed that their ongoing stay in ICC custody is hindering legal proceedings against them in the DRC. The Chamber therefore invited the Congolese authorities to contact the ICC Registry to facilitate the witnesses' participation in their trial in the DRC without violating their rights to due process. The Chamber said it would facilitate the witnesses' communication with their Congolese lawyers, if necessary.

Protective Measures Ordered by the Chamber

Regardless of these assurances and the weight they carry, it is necessary to protect the witnesses against potential harm they may face because they have testified before the ICC, the Chamber stated. Therefore, it ordered the Registry to ensure the following protective measures were put in place until the end of the witnesses' trials in the DRC:

The witnesses shall be detained in a detention centre which, in terms of infrastructure and population, is most conducive to offering maximum protection. The VWU is instructed to consult with the DRC authorities to identify whether this is the CPRK Kinshasa, the Ndolo prison, or any other detention centre where the witnesses can be legally detained.

If the witnesses are transported or transferred to another location, the VWU must be informed in advance.

The detained witnesses shall be held under conditions which protect them from possible aggression by co-detainees. However, this should not lead to their permanent isolation.

There shall be permanent surveillance of the security of the detained witnesses by guards who are specifically selected and trained for this purpose in close consultation between the Congolese prison authorities and the VWU. These guards must be reachable at all times by the VWU.

A member of the VWU must be able to visit each detained witness twice per week and must be allowed to speak with them confidentially.

When the detained witnesses are to be tried, an observer of the Court must be allowed to attend the proceedings. The Registry must thus be informed in advance of the date and location of any legal proceedings involving one of the detained witnesses.

Once the trial of one of the detained witnesses has ended, the VWU shall evaluate his security situation again and determine on (sic) the appropriate protective measures, if any.

If the DRC complies with this request for cooperation and these protective measures become operational, the Chamber held, it would have fulfilled its obligations to protect the witnesses against potential harm resulting from their testimony. Therefore, the Chamber held that in principle the witnesses could be returned to the DRC as soon as the VWU has confirmed that the measures are in place. However, the Chamber recalled its previous decision that the witnesses could only be returned if their claim for asylum in the Netherlands is rejected by the Dutch authorities.

The fate of the witnesses, therefore, lies in the hands of the Dutch immigration authorities. If the asylum application is rejected, the witnesses will be returned. If it is accepted, and they are granted asylum in the Netherlands, it is unclear what will happen to the witnesses. They could face trial in the Netherlands for the crimes they are accused of committing in the DRC.

Witness 148 Denies his Testimony was Influenced
KatangaTrial.org
By Jennifer Easterday
June 27, 2011

Germain Katanga is the alleged commander of the Ituri Patriotic Resistance Force (FRPI) militia, and Mathieu Ngudjolo Chui is the alleged former leader of the Nationalist and Integrationist Front (FNI) militia. They are charged with war crimes and crimes against humanity allegedly committed in 2003 in Bogoro, a village in the Ituri Province of eastern DRC.

During this reporting period, Witness 148, testifying in defense of Katanga, concluded his cross-examination. He was then questioned by the legal representative for victims, the judges, and was re-examined by the Katanga defense team. This report provides an overview of that testimony.

The chamber also rendered three oral decisions. In one decision, the chamber ruled that measures separating three detained witnesses from other prisoners in the ICC detention center should be altered so that the detained witnesses can have more time outside their cells. The chamber also held that the OTP disclose the results of an OTP investigation into a newspaper article about one of the witnesses to the witness' duty counsel. Finally, the chamber ordered a defense witness to be sent home after the defense decided not to call the witness to testify. The prosecution had requested that the witness be kept in The Hague and called as a witness of the court. These decisions are discussed below.

Testimony of Witness 148

This witness testified with protective measures, including a pseudonym and voice and facial distortion.

During his examination in chief, the witness had testified that he participated in the attack on Bogoro and explained that the attack was carried out by a number of groups working together. Commander Yuda ordered the attack to be planned, the witness said. The witness reiterated that it was Yuda and his deputy Androso Zaba Dark planned the attack. Dark remained as commander in Bogoro after the attack.

Cross-examination

During cross-examination, the witness testified that Commander Kandro was the overall commander of the Ngiti combatants. He explained that there was disagreement between Kandro and Commander Cobra about attacking and looting the hospital in Nyankunde during the September 5, 2002 attack on that town. The hospital was attacked, and Cobra's men looted its medical supplies, he said, although Kandro objected to this. Witness 148 claimed that he was not a part of that attack and did not see civilian bodies in Nyankunde.

Like other witnesses, the witness said that Cobra later killed Kandro, and went after Kandro's fighters.

Witness 148 claimed that Katanga went to Beni, and later, ammunition started to arrive in Aveba, sent from Beni. Although he did not see the materiel himself, nor did he see combatants coming to Aveba to collect the ammunition, he was told about it, he said.

Testifying about the attack on Bogoro, Witness 148 said that the village was open and civilians were able to come and go when the attack started. He claimed that civilians were killed by machete in a school in Bogoro. He did not see any civilians killed during the battle but did see civilian corpses after the battle.

The witness testified that he saw burnt houses in Bogoro but said he never heard that civilians were burnt in houses, however. He also admitted that the soldiers pillaged the "few items that were available" in the village. This could be used by the prosecution as crime-base evidence, which proves that crimes were in fact committed during the attack on Bogoro.

He had testified that before the battle, the combatants had received fetishes. On cross-examination, he admitted that there were conditions for receiving a fetish: that they must not rape or steal during the battle. The prosecution asked whether these conditions applied after the battle.

"Even after the battle the conditions still applied. There were persons who violated these conditions...the hunger or the drive to get money could lead people to do just anything," he replied.

The witness said that he had never heard of Mathieu Ngudjolo. The witness was an officer at the time of the attack on Bogoro and saw soldiers coming from Zumbe, the prosecution recalled, and asked again about whether he had heard about Ngudjolo. The witness clarified that he had heard of Ngudjolo, but he had never seen him; the witness said he had not understood the question.

The witness said that representatives from the UN visited Bogoro on various occasions. The prosecution asked about one occasion when Ugandans accompanied the UN on a visit to Bogoro, when they traveled along the route from Bunia that the witness was commanding. The witness recalled the visit but did not know its purpose. The prosecution alleged that Commander Androso Zaba Dark refused to let the group access the military camp area of Bogoro. The witness could not recall that and said the group went to Bogoro headquarters where Commander Dark was. He did not know whether Commander Dark then refused to let them into the camp.

Turning to the witness' statement taken by defense lawyers, the prosecution asked whether he was shown a list of possibly exculpatory witnesses by the defense investigator, Jean Logo. In particular, the prosecution wanted to know whether the witness knew who else was on the list. He denied knowing who was on the list, saying that the investigator had not given him any names. The witness also testified that he did not know how Logo got his contact information, after the prosecution suggested that it came from Katanga's family.

The prosecution asked whether certain words or expressions found in the statement were suggested to him. In his statement, he said, "Even after his appointment as president, Germain [Katanga] did not have any effective control over the various commanders." The prosecution alleged that the phrase "effective control," was suggested to him by the investigator or somebody else, the prosecution alleged. The witness maintained that he said everything in the statement, and the investigator only wrote down what the witness had said.

"Nobody influenced me in any way," he said.

Questions from the Legal Representative for Victims

The witness had testified about four other attacks on Bogoro before the major attack on February 2003. The legal representative for victims asked the witness what the objective of the Ngiti attackers was for the February attack. The goal of those attacks was to chase out the UPC, he said.

He said that he only participated in the fourth and fifth attacks. During the fourth attack, they were repelled, he said. He did not know whether any livestock was looted during that attack. He said he did not witness any pillaging, looting or stealing of cows or livestock in Bogoro, "for the simple reason that there were no cows there." Victims of the attack, however, have testified that their possessions, including livestock, were looted after the attack.

During the fourth and fifth attacks, all the civilians that were at the point of entry to Bogoro left, and during the fifth attack, there were no civilians at that location, he said.

The legal representative also asked about whether it was tradition for the combatants to loot after a victory.

"There are different types of combatants," the witness explained.

Some might loot, he said, but others might not. The witness testified that the combatants usually did not report back to or share the commanders about what they had looted. He said that if a commander forced the combatants to give them what the combatants had looted, a gunfight could break out, and therefore, this was not done.

Four groups of Ngiti fighters stayed behind after the attack, he said, but no one else. Combatants who had stayed behind to occupy Bogoro lived in the houses of Bogoro that were not pillaged or destroyed, the witness testified. These combatants received food from the Kagaba market, the farms in Bogoro, and from people passing through who gave them food.

Questioning by the Chamber

The chamber also had questions for the witness. They started by asking about the witness' testimony that Commanders Dark and Yuda were invited to Tchey by Commander Bayonga, when Bayonga appointed the people who were supposed to lead the FRPI. The witness said that Dark had told him that they were invited to Tchey and that Yuda was appointed commander of a battalion with Dark as his assistant. Other appointments were made as well, he said. The witness said he could not recall whether these appointments were made before or after the Bogoro battle.

The chamber asked whether any appointments were made for Aveba. The witness responded that Dark had told him Katanga was appointed as the president of the FRPI. The witness thought that Katanga's appointment was made after the battle of Bogoro.

The witness testified that there were about five child soldiers in the Kagaba camp, but they were "not in the habit of going into battle," he testified. Yuda objected to children going to battle, he said. The children lived with the families of their older brothers, he said.

"I would say that they were living with their families in the camps, especially when a member of their family was a combatant," he said.

The witness said that the "fetisher" gave his group fetishes before the February 2003 attack on Bogoro.

"This was more or less the rule before going out to battle," he said.

The fetishes came with conditions, however, of not stealing, not raping and not having sexual intercourse before going out to battle. Generally speaking, these conditions were always the same, irrespective of which battle the fetishes were given for, he said.

Commanders Yuda and Dark ordered the attack on Bogoro, the witness claimed. Yuda gave a speech to the combatants the night before the battle, and called on the combatants to bring in reinforcements to drive out the UPC, the witness claimed. The only objective was to attack Bogoro and drive off the UPC, he said.

The witness concluded his testimony, and the court suspended hearings for ten days, in part due to the defense decision not to call the next witness and due to a week during which no hearings were conducted at the ICC.

Legal Issues

The trial chamber rendered three oral decisions during this reporting period, which are discussed below.

The first oral decision was in response to a motion submitted by Katanga's defense requesting the chamber to lift separation measures between the three detained witnesses and Katanga in the ICC detention center. The chamber explained that the three detained witnesses are housed in the same wing as Katanga and Ngudjolo in the detention center. Due to rules that prohibit contact between the witnesses and the accused, the detained witnesses have a limited number of hours they can come out of their individual cells and have a social life in the common areas.

On June 6, upon an order from the chamber, the Registrar submitted a confidential report on the detention conditions of the three detained witnesses. The Registrar noted that the detention center has to manage two different groups of detainees: the three detained witnesses and the others detained by the ICC. Contact between detainees within each group is allowed, but contact between the groups is not. The three detained witnesses are allowed to take part in sporting activities for a maximum of one hour each day and carry out open-air exercises with the detained persons of the ICTY for a maximum of one hour 45 minutes per day. Furthermore, their cells are opened for three hours and 45 minutes maximum per day, which makes it possible to communicate between themselves and shower. During this period, the other detained persons are either exercising or locked up in their cells. The net result is that on average the detained witnesses can come out of their cells for six hours 20 minutes per day, maximum. The report noted that the meals were served in their cells and that the detainees have access to information and television programs. The Registrar noted that the current conditions cannot be extended beyond five to six weeks without undermining the welfare of the three detained witnesses. The Registry emphasized that any increase in the period of time they are allowed to leave would mean a decrease in the amount of time other detainees are allowed out. However, if the separation measures were lifted for everyone except the two defendants, it would mean that the detained witnesses could come out while the defendants are in court, the Registry noted.

The defense submitted that because the detained witnesses will have to be in detention for some time pending their asylum claims, in the interests of justice and for humanitarian reasons, it would be practical to lift what the defense considered unnecessary and disproportionate restrictions. The defense pointed out that it was highly unlikely that these witnesses would be called again to testify in this case. The defense noted that less restrictive measures could be adopted that only limit the prohibition on contact to the accused persons only. The Ngudjolo defense proposed the authorization of contact between the detained witnesses and the accused persons under the supervision of a guard who understands the language.

The prosecution opposed the request, pointing out that in light of the report of the Registry, the situation of the detained witnesses is not unacceptable. The "relative discomfort" of the witnesses is not exceptional enough to justify a waiver of the restrictions on contact, the prosecution averred. Noting that the witnesses might be recalled and that the accused may testify, the prosecutor submitted that the integrity of the proceedings should be preserved.

The chamber recalled that the trial chamber in the Thomas Lubanga case had lifted similar separation measures once testimony of witnesses in that case had been concluded. The chamber noted that the restriction measures were ordered in accordance with the jurisprudence relating to contacts between the witness and the party that called that witness, to avoid challenges regarding the integrity of the proceedings. To this end, the chamber opined that it was necessary to avoid contact between the two groups of detained persons in order to prevent the exchange of information. However, the chamber noted that it was not necessary to take measures to lock the witnesses up just in order to prevent visual contact or prevent the groups from meeting and seeing each other in the detention center.

The chamber stated that it was sensitive to the humanitarian issues raised by the motion and intended to ensure the best possible detention conditions, particularly in the instant case of witnesses who have filed for asylum in the Netherlands and may therefore stay in the detention center for an extended time.

The implementation of less restrictive measures authorizing contacts with the two groups of detained persons while the accused are in the hearings would be the most acceptable solution, the chamber found. However, the chamber refused to allow direct contacts between the accused and the witnesses, as the detention conditions reported by the Registry did not involve total isolation and therefore did not merit a waiver of this restriction. This was not a final decision, and the chamber advised the Registry to find a sustainable solution by exploring all measures that would make it possible to extend the periods of contact between detained witnesses in the course of the day, particularly during meal times, even if that means a reinforcement of supervision measures.

The chamber also ruled on a motion to disclose the results of investigation by OTP on an interview with defense witness Sharif Manda (one of the detained witnesses who has claimed asylum in the Netherlands) in the Congolese newspaper Le Millionaire. The prosecution had challenged the authenticity of the article, stating that given the findings of a preliminary investigation, the content of the article did not reflect the interview that the witness gave to the journalists of the paper. The witness told his duty counsel that he was not aware of the existence of that interview and considered that the article was a manipulation. He therefore asked for the disclosure of the final outcome of the OTP's investigation. The prosecution responded that it had no objection to the disclosure, on condition that the chamber order the redaction of the names of people involved in the newspaper for the public and parties outside the proceedings. The witness concurred with the prosecution's position and ordered the material disclosed with the redactions.

At the conclusion of Witness 148's testimony, the defense was scheduled to call Witness 47. However, in a last minute decision made in light of a confidential filing received late the day before from the duty counsel for the witness, the defense decided it was no longer necessary to call the witness.

The prosecution acknowledged that it was an exceptional situation and did not have any objections to the withdrawal of the witness. However, the prosecution wanted assurances that it could use Witness 47's witness statement during the cross-examination of another defense witness, defense investigator Jean Logo. The prosecution has been questioning witnesses about whether their testimony has been influenced and the conduct of the defense investigation. The prosecution argued that like in Witness 148's statement, Witness 47's statement includes legal terms such as "effective control." The prosecution wanted to ensure that it could ask Logo about this and other matters concerning the conduct of the defense investigation, including that the witnesses travel with copies of their statements when they come to The Hague to testify. The prosecution also suggested that the judges call Witness 47 as a witness of the court.

The chamber did not make any findings on the prosecution's request regarding the statement and suggested that the witness leave that evening so that the court would not incur any further expense.

Hearings will resume in the Katanga and Ngudjolo trial on June 27, 2011.

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Kenya

Official Website of the International Criminal Court
ICC Public Documents - Situation in the Republic of Kenya

Kenya Fights to Have ICC Ruling Reversed
Daily Nation
June 22, 2011

Kenya has made its first submission in an appeal against a ruling by International Criminal Court judges on the admissibility of cases against six of its citizens.

The government is accusing the Pre-Trial Chamber of not considering all its submissions prior to the rejection of its application challenging the admissibility of the cases.

It says the decision contained procedural and legal errors and should be reversed.

"The Appeals Chamber should return the matter to the existing - or a reconstituted - Pre-Trial Chamber to hear and assess the evidence on issues of complementarity together with arguments from all parties," government lawyers have said.

The government argues that prior to the ruling, it had submitted a detailed report of investigations that included the Ocampo Six, but which were ignored by the Pre-Trial Chamber II.

Kenya also argues that the ICC, in line with the Rome Statute, retains jurisdiction of such cases if "the State is unwilling or unable genuinely to carry out investigations".

"The Pre-Trial Chamber did not find that the Government of Kenya was either "unwilling" or "unable" to investigate the six suspects," the lawyers tell the Appeals Chamber.

Kenya says the Chamber denied it the opportunity to provide further information about the investigation, and yet used "absence of information" as the reason to reject the admissibility application.

The government seeks to have cases against Eldoret North MP William Ruto, Tinderet MP Henry Kosgey, journalist Joshua Sang, Deputy Prime Minister Uhuru Kenyatta, Head of Public Service Francis Muthaura and Postmaster-General Hussein Ali returned to Kenya for trial.

No ICC Hearings in Kenya
Capital News
By Bernard Momanyi
June 29, 2011

Presiding judge at the Pre-trial Chamber II Ekaterina Trendafilova has ruled that it will be necessary to have the hearings conducted at The Hague following submissions from both the defense and prosecution.

The judge said in a ruling issued on Wednesday that she had taken note of all concerns raised by both the defense and prosecution teams as well as the office of the public counsel for victims and concluded that it was necessary to hold the hearings at The Hague, particularly because of security concerns.

"The single judge wishes to inform the parties and the applicant victims that the Chamber, for its part, being respectful of their wishes as expressed in the respective submissions, will not consider further the option of conducting the confirmation of charges hearing in the Republic of Kenya," the judge said in her ruling.

The Chamber, she said, had therefore ensured that this concern was submitted to the competent entities entrusted to render a decision upon this question according to rule 100 of the Rules.

"In any event, absent any decision to the contrary, the confirmation of charges hearing in the present case will take place at the seat of the Court in The Hague," she ruled.

Majority of the suspects and ICC Prosecutor Luis Moreno Ocampo had indicated that they wanted the hearings held at The Hague due to security reasons.

Of the six suspects, only Tinderet Member of Parliament Henry Kosgey proffered the hearings to be held in Kenya while Head of Civil Service Francis Muthaura preferred Arusha in the absence of security here.

Eldoret North MP William Ruto, Former Police Commissioner Mohammed Hussein Ali, Finance Minister Uhuru Kenyatta and Radio Presenter Joshua arap Sang all indicated that they wanted the hearings done at The Hague.

Judge Trendafilova said that she considered that both the prosecutor and the defence teams would be able to comply with the present order given that all the relevant information for an informed decision to be made will be in their possession well in advance of the deadline established

The judge ordered the prosecution and defense teams to indicate in advance if they intended to have their respective witnesses give oral submissions on that day or if they intend to rely on their written submissions.

"The single judge deems it necessary that the parties inform the Chamber, no later than Tuesday, 12 July 2011, as to whether they intend to call viva voce witnesses to testify at the confirmation of charges hearing," the ruling stated.

In the meantime, the ICC has rejected the government's request for assistance with evidence held by the court arguing that Kenya submitted a two-page cooperation request, which lacked any documentary proof that there is or has been an investigation against the Ocampo Six.

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Libya

Official Website of the International Criminal Court
ICC Public Documents - Situation in the Libyan Arab Jamahiriya

Kadhafi Defectors Tell of Orders To 'Show No Mercy'
AFP
June 21, 2011

A group of 22 security personnel who defected from Moamer Kadhafi's forces in south Libya claimed on Monday they were directly ordered not to give captured rebels the rights of normal prisoners.

Four representatives of officers from the deep south of the war-torn country told reporters they had been ordered to "show no mercy to prisoners," who, they were told, were rebels linked to Al-Qaeda.

Immediate superiors issued orders such as "'don't give them (prisoners) their rights'," according to former Kadhafi army captain Mohammed Ahmed Salih al-Tabowy, speaking through a rebel interpreter.

The former fighters also chronicled a near four-month effort to defect, which saw them skirt the burning-hot Niger and Chadian borders aided by undercover rebels before reaching safety at Sarir southeast of Benghazi last week.

The men, dressed in the flowing robes found throughout the central Sahara, where presented to the media by the National Transitional Council in the rebel capital Benghazi.

Details of the war in the remote and hostile southern desert region have been vague and their specific claims could not be verified, but the accounts tally with reports from defectors from other regions.

Kadhafi is currently being investigated by the International Criminal Court for alleged crimes against humanity, including ordering mass rapes.

Under the Geneva Conventions, prisoners of war must not be mistreated or abused.

Pre-Trial Chamber I Issues Three Warrants of Arrest for Muammar Gaddafi, Saif Al-Islam Gaddafi and Abdualla Al-Senussi
International Criminal Court - Press Release
June 27, 2011

Today, 27 Junthe Statute, the Security Council urged all States and concerned regional and other international organisations to cooperate fully with the Court and the Prosecutor.

On 3 March 2011, the ICC Prosecutor decided to open an investigation and requested, on 16 May 2011, the issuance of the arrest warrants.

Hague Prosecutor Calls for Libya to Arrest Qaddafi
The New York Times
By Robert Mackey
June 28, 2011

One day after the International Criminal Court in The Hague issued arrest warrants for Col. Muammar el-Qaddafi, one of his sons and his intelligence chief, accusing them of crimes against humanity during the first two weeks of the uprising in Libya, the court's chief prosecutor called on the Libyan leader's inner circle to arrest him.

Speaking to reporters on Tuesday, the prosecutor, Luis Moreno-Ocampo, argued that although Libya did not sign the treaty that created the court, as a member of the United Nations its government has a duty to comply with a security council resolution authorizing his investigation.

The prosecutor's office posted a copy of his prepared remarks and video of his statement one 2011, Pre-Trial Chamber I of the International Criminal Court (ICC) issued three warrants of arrest respectively for Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi for crimes against humanity (murder and persecution) allegedly committed across Libya from 15 February 2011 until at least 28 February 2011, through the State apparatus and Security Forces.

The Chamber, composed of Judges Sanji Mmasenono Monageng (Presiding), Sylvia Steiner and Cuno Tarfusser, considered that there are reasonable grounds to believe that the three suspects committed the alleged crimes and that their arrests appear necessary in order to ensure their appearances before the Court; to ensure that they do not continue to obstruct and endanger the Court's investigations; and to prevent them from using their powers to continue the commission of crimes within the jurisdiction of the Court.

The situation in Libya was referred to the ICC Prosecutor by the United Nations Security Council, through the unanimous adoption of Resolution 1970 on 26 February 2011. The Security Council decided, under Chapter VII of the United Nations Charter, that "the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution" and, while recognizing that States not party to the Rome Statute have no obligations under line.

Mr. Moreno-Ocampo began his news conference by welcoming the court's decision to issue warrants for the arrest of Colonel Qaddafi, his son Seif al-Islam, and his brother-in-law Abdullah Senussi, who is also Libya's chief of military intelligence. He then said:

Today, it is time for arrests. Let me clarify who should arrest them and how they can do it.

Libya has the primary responsibility to implement the arrest warrants. Libya is not a State Party of the Rome Statute, but it is a member of the United Nations since 1955. Libya has to comply with U.N. Security Council Resolution 1970, which specifically called on Libya to "cooperate fully with and provide any necessary assistance to the Court and the Prosecutor."

The Court will notify the Libyan government based in Tripoli of its decision. Qaddafi's inner circle is the first option: they can be part of the problem and be prosecuted, or they can be part of the solution, work together with the other Libyans and stop the crimes.

Mr. Moreno-Ocampo concluded by noting that his office "will continue investigating new crimes regarding the situation in Libya since February 15, 2011, in particular allegations of rapes and efforts to cover up the crimes. Justice will be done in Libya."

White House Hails ICC Warrants on Kadhafi
AFP
June 28, 2011

The White House on Monday hailed International Criminal Court (ICC) arrest warrants issued against Moamer Kadhafi as a new sign that the Libyan leader had lost legitimacy.

The Obama administration, under increasing domestic political pressure over Kadhafi's defiance in Libya, said there must be accountability and justice in the face of "crimes" he had committed.

"It's another indication that has lost his legitimacy," said White House spokesman Jay Carney.

"It is another step in this process of holding him accountable."

War crimes judges issued the three warrants for Kadhafi and two of his closest allies for crimes against humanity committed against opponents of his regime, a judge at The Hague-based ICC said.

ICC chief prosecutor Luis Moreno-Ocampo had asked for warrants for Kadhafi, 69, his son Seif al-Islam, 39, and the head of Libyan intelligence, Abdullah al-Senussi, 62, for murder and persecution since mid-February when a bloody uprising in Libya started.

All three are charged over their roles in suppressing the revolt, in which civilians were murdered and persecuted by Libyan forces, particularly in Tripoli, Benghazi and Misrata, the prosecutor said.

China Calls For "Prudence" On Libya War Crimes Warrants
Reuters Africa
June 28, 2011

China on Tuesday called on the International Criminal Court (ICC) to be prudent and objective in carrying out its duties, a day after the court ordered the arrest of Libyan leader Muammar Gaddafi, his son and the country's intelligence chief.

"China hopes the ICC can prudently, justly and objectively carry out its duties, and ensure that its relevant work genuinely aids regional peace and stability," Foreign Ministry spokesman Hong Lei said when asked about the arrest warrants.

Hong's statement stopped short of condemning or endorsing the court's actions, though China has denounced its war crimes indictment of Sudanese President Omar Hassan al-Bashir, currently on a state visit in Beijing.

The two leaders are the only sitting heads of state facing warrants from the court.

The Hague-based court on Monday issued warrants for Gaddafi, his son Saif al-Islam and Libyan intelligence chief Abdullah al-Senussi on charges of crimes against humanity for their alleged role in the killing of civilian protesters who rose up in February against Gaddafi's 41-year rule.

China is not a member state of the court.

"China consistently opposes violent actions toward civilians, and advocates that all parties resolve Libya's problems through peaceful political negotiations," Hong said, speaking at a regular news briefing in Beijing.

China has hosted Libyan government and rebel representatives in recent weeks in what it has called an effort to encourage a ceasefire and a negotiated end to the war.

About half of China's crude oil imports last year came from the Middle East and North Africa, where Chinese companies have a big presence.

Beijing generally avoids entangling itself in nations' domestic affairs, but Foreign Minister Yang Jiechi told Libyan rebel leaders last week that they had become an "important domestic political force" in the country.

The ICC ruling is unlikely to lead to Gaddafi's arrest as long he remains in power and inside Libya, because the court does not have the power to enforce its warrants. Rebel forces on Monday advanced 30 km (18 miles) north toward Tripoli, Gaddafi's main power base.

China did not use its veto power as a permanent member of the U.N. Security Council in March to block the authorisation of the NATO-led air strikes on Gaddafi's forces, but it quickly condemned the strikes.

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AFRICA

International Criminal Tribunal for Rwanda (ICTR)

Official Website of the ICTR

ICTR to Deliver Judgment on Four Former Ministers This Year
The New Times
By Gashegu Muramira
June 20, 2011

The International Criminal Tribunal for Rwanda (ICTR) will in August, this year, deliver its verdict on cases involving four former cabinet ministers.

The 'Government II' trial involves; Justin Mugenzi (Trade), Casimir Bizimungu (Health), Prosper Mugiraneza, (Public Service) and Jérome Bicamumpaka (Foreign Affairs).

"The Bizimungu judgment will be delivered by August and the Karemera, Ndahimana and Nzabonimana verdicts will be delivered in the fourth quarter of this year," ICTR president Khalida Rachid Khan told the United Nations Security Council recently.

"Almost all our current case load will be completed by the end of this year."

The Government II trial has been on for eight years while the suspects have been in detention for 12 years.

Khan also said that judgment for other three cases of former top officials of MRND, the political party largely responsible for the planning and executing the 1994 Genocide against the Tutsi, would be delivered in the fourth quarter of this year.

These include; Mathieu Ngirumpatse, who was the MRND president, and his deputy, Edouard Karemera.

Mugenzi was arrested in 1999 and his trial opened in 2003, while Bizimungu was apprehended in Kenya in 1999 and transferred to ICTR in 1999. Similarly, Mugiraneza was arrested in 1999 in Cameroon and transferred to ICTR the same year.

Bicamumpaka was also arrested in Cameroon in 1999.

Former Interahamwe Militia Leader Pleads Not Guilty to Genocide
Hirondelle News Agency
June 20, 2011

The alleged Rwandan Interahamwe militia leader arrested last month in the Democratic Republic of Congo (DRC), Bernard Munyagishari, Monday pleaded not guilty to genocide and crimes against humanity in his initial appearance before the International Criminal Tribunal for Rwanda (ICTR).

"I plead not guilty,'' said Munyagishari as the Presiding Judge Dennis Byron read out one count after another to the accused and demanded a response.

Munyagishari, 52, is described by the prosecution as the former president of Interahamwe in Gisenyi prefecture, north Rwanda. He is accused of conspiracy to commit genocide, genocide or alternatively complicity in genocide and murder and rape as crimes against humanity.

"Your plea on each count has been recorded. You are presumed innocent until proven guilty beyond reasonable doubts,'' Judge Byron assured the accused as he stood calm in the witness box.

Munyagishari who was arrested on May 25, 2011 in North Kivu in DRC was transferred to the Tribunal's detention facility in Arusha, Tanzania on June 14, 2011. During his initial appearance the accused was represented by Tanzanian Duty Counsel, Nelson Merinyo.

Born in 1959 in Rubavu commune in Gisenyi prefecture the accused is alleged to have recruited, trained and led Interahamwe militiamen in mass killings and rapes of Tutsi women in Gisenyi and beyond, between April and July 1994.

Munyagishari's arrest has reduced the number of fugitives still at large to nine.

Judgement with 569 Pages for Four Military Officers Availed
Hirondelle News Agency
June 21, 2011

One month after delivery of verdict in the case involving four former Rwandan military officials, including two generals at the International Criminal Tribunal for Rwanda (ICTR), the original judgement is now available which makes 569 pages.

On May 17, 2011, presiding Judge Joseph Asoka de Silva in the case of Generals Augustin Bizimungu and Augustin Ndindiliyimana, Major Francois-Xavier Nzuwonemeye and Captain Innocent Sagahutu, read only a summary of the judgement and said the original one would be availed to the parties at a later stage.

After their careful analysis, the parties (prosecution and defence) would have the opportunity to prepare their respective eventual appeals if they so find necessary. According to the judgement, the two generals were convicted of genocide, crimes against humanity and war crimes.

General Bizimungu, ex-Chief of Staff of the Army was jailed 30 years, while General Ndindiliyimana of the Gendarmerie was sentenced to the time served since his arrest on January 29, 2000 in Belgium.

Whereas Nzuwonemeye, ex-Commander of the Reconnaissance Battalion and Sagahutu, a member of the unity, were ordered to remain behind bars for 20 years each, after being convicted of crime against humanity and war crimes. .

According to the Rules of the Tribunal, the parties have one month to file their notices of intention to appeal against the judgement, a move that will be followed by lodging appeals briefs.

However, it has been a tradition at the ICTR to count those 30 days from the date they receive copy of judgement in a language they understand.

Original copy of judgement filed is in English language, while the language for all the convicts is French. The convicts have already filed applications for extension of time to lodge notices of appeal for fear of being time barred.

In the meantime, the bench that will preside over the appeals has been set composed of Judges Patrick Robinson, Presiding, Liu Daqun, Andrésia Vaz, Theodor Meron and Carmel Agius.

Genocide Ruling Friday for First Female Alleged Mastermind
The New Age
June 23, 2011

Judges at the UN court for Rwanda will on Friday hand down their verdict for the first woman to be charged with genocide before an international court, 14 years after her arrest.

Pauline Nyiramasuhuko, a former minister for the family and women's empowerment, has been charged with genocide and incitement to rape committed in Rwanda's southern Butare region during the 1994 genocide.

Nyiramasuhuko, 65, is the only female detainee at the International Criminal Tribunal for Rwanda (ICTR).

She has been appearing in court since 2001 along with her five co-accused: her son Arsene Shalom Ntahobali and four former local officials.

The verdict comes 16 years after the first of the co-accused were arrested. In April 2009 prosecutors called on the court to impose a life sentence on Nyiramasuhuko.

They also requested the maximum sentence for Nyiramasuhuko's son the Tanzania-based court's youngest detainee and the four other co-accused, former Butare prefects Alphonse Nteziryayo and Sylvain Nsabimana and former mayors Joseph Kanyabashi and Elie Ndayambaje.

All six are facing several genocide counts. "The prosecutor respectfully submits that the appropriate sentence in this case is imprisonment for the remainder of their lives," prosecutor Holo Makwaia said in her closing arguments.

Makwaia argued that the accused had "the intent to destroy in whole or in part the Tutsi ethnic group in Butare." But Nyiramasuhuko's defence lawyer, Nicole Bergevin, said the prosecution had failed to prove her client was guilty.

"It is an abomination to claim that Pauline Nyiramasuhuko could have gone as far as ordering her son to rape young Tutsi women," the lead defence counsel said in her closing arguments, adding: "Nyiramasuhuko is not guilty of the abominable allegations brought against her" and calling for the acquittal of the former minister.

Nyiramasuhuko's second counsel, Guy Poupart, denounced what he said was a campaign to "demonise" all the members of the government that was in place during the genocide.

Ntahobali's lawyer Norman Marquis for his part noted serious contradictions in the testimony of the prosecution witnesses and said several witnesses making accusations against his client had not even been able to recognise Ntahobali in court.

Lawyers for the other co-accused also asked for their clients to be acquitted. Nyiramasuhuko, who looks younger than her 65 years, was born into a modest family in southern Rwanda. At the age of 40 she enrolled at university and gained a law degree four years later.

In April 1992 she was appointed minister for family and she still held that position two years later at the time of the genocide. After the victory of the Rwandan Patriotic Front she fled into neighbouring Democratic Republic of Congo. She was arrested in Kenya in July 1997 and transferred to the ICTR.

Several other women have have been found guilty of genocide and sentenced, some of them in high-profile trials, but none before an international court.

Two Rwandan Catholic nuns were sentenced by a Brussels court in June 2001 for their role in the genocide. Sister Gertrude, alias Consolata Mukangango, was handed a 15-year sentence while Sister Kizito, alias Julienne Mukabutera, got 12 years.

The ICTR was formed in late 1994 and has been tasked with trying the masterminds of Rwanda's genocide in which some 800,000 people, essentially minority Tutsis, were killed in the space of 100 days.

Third Rejection of General Gatsinzi's Statement in Nizeyimana Trial
Hirondelle News Agency
June 23, 2011

In a third attempt, the prosecution has lost its motions to have sworn statement by Rwandan cabinet minister, General Marcel Gatsinzi, admitted into evidence to boost its case against Captain Ildephonse Nizeyimana, pending before the International Criminal Tribunal for Rwanda (ICTR).

In a decision of June 21, 2011, a Trial Chamber refused to review its earlier resolution on the matter, noting that the "affidavit (sought for admission), while cumulative in nature, contains evidence that goes to the proof of a matter of the acts or conducts of the accused as charged in the indictment."

The prosecution had been seeking to have the affidavit by General Gatsinzi admitted into evidence to corroborate other witnesses testimonies that he was the higher ranking officer at the Non-Commissioned Officers School (ESO) in Butare, Western Rwanda and to show the actual position Nizeyimana held at the military academy during genocide.

Prosecution had been all along claiming that Capt. Nizeyimana was second in command in charge of intelligence and military operations at ESO, allegations that have been vehemently denied by the defence, who even called witnesses, suggesting that the accused was "no body" at the academy, meaning he held no any leadership position.

The prosecution made its first attempt for the admission of the affidavit in question on August 9, 2010, but the Chamber overruled the motion on October 6, 2010, saying, "admission as evidence of the statement by General Gatsinzi, without allowing oral interrogation to be conducted was highly prejudicial to the accused."

Dissatisfied by the decision, the prosecution lodged an appeal before the Appeals Chamber on December 10, 2010, but it was denied on March 8, 2011 on almost similar grounds that were relied upon by the Trial Chamber.

In the third attempt, the prosecution sought for reconsideration of decision dated October 6, 2010 because Gen, Gatsinzi, currently Minister for Disaster Preparedness and Refugee Affairs, testified before the Tribunal on March 30, 2011, during appeal hearing of Col. Theoneste Bagosora , who touched some information regarding Nizeyimana.

According to the prosecution, a transcript of his testimony had been admitted in Nizeyimana trial as defence exhibit, without hearing his evidence.

In its decision, however, the Chamber noted that the defence sought the admission of the transcript containing Gatsinzi's testimony for limited purpose of demonstration a contraction of a prosecution witness regarding his appointment as Chief of Staff of the army in 1994 and, therefore, found it admissible only in so far as related to the witness's credibility.

Nizeyimana's trial has been adjourned to September 7, 2011, when the Chamber will receive extra evidence from the prosecution aimed at challenging the defence for the accused, who claims that he was not in Butare in months of April and May, 1994. He is charged with genocide, extermination, murder and rape.

Kabuga Duty Counsel to Call Defence Witnesses in 2012
Hirondelle News Agency
June 24, 2011

Duty Counsel Bahame Nyanduga representing Félicien Kabuga, the most wanted genocide fugitive in the ongoing special deposition proceedings at the International Criminal Tribunal for Rwanda (ICTR), will call defence witnesses in 2012.

The proceedings for Kabuga, who is considered the financier of the 1994 Rwandan genocide, took off on May 23, 2011 and the prosecution is still calling witnesses.

"The deposition will go on until July 15, 2011, then there will be three months suspension to allow the defence to carry out investigations. It is expected that the hearing of defence witnesses will take place in March 2012," the ICTR Spokesperson, Roland Amoussouga, said on Friday.

This is not a trial and the exercise aims at preserving evidence for a future trial in case the alleged financier of the genocide is arrested.

Judge Vagn Joensen, who is currently conducting the proceedings under total closed session, cannot rule on the probative value of evidence collected nor can Nyanduga pretend to be fully defending Kabuga, who has not mandated him.

Kabuga (76) is charged with 11 counts, including conspiracy to commit genocide, genocide, complicity in genocide and direct and public incitement to commit genocide. He is also facing charges of crimes against humanity for murder, extermination, rape, persecution and inhuman acts and other charges of war crimes.

Kabuga's case is among three involving top-level fugitives that would be proceeded with in such way under Rule 71 bis of the ICTR Rules. The other cases involve Protais Mpiranya, who was Commander of the Presidential Guard and Augustin Bizimana, former Minister of Defence.

ICTR sources allege that Kabuga is said to be carrying out his commercial activities in Kenya, while Mpiranya is allegedly being protected by senior officials in Zimbabwe, whereas Bizimana may be hiding in the Democratic Republic of Congo (DRC).

Butare Judgement Delivered
International Criminal Tribunal for Rwanda
June 24, 2011

The United Nations International Criminal Tribunal for Rwanda today convicted all the six accused persons in what is called the Butare case including the first woman to be charged of genocide, Pauline Nyiramasuhuko, the former Minister of Family and Women's Development.

Trial Chamber II composed of Judges William Sekule, presiding, Arlette Ramaroson and Solomy Balungi Bossa then sentenced Nyiramasuhuko to life in prison for conspiracy to commit genocide, genocide, crimes against humanity (extermination, rape, and persecution), and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II thereto (violence to life, and outrages upon personal dignity).

The Trial Chamber also sentenced her son, Arsène Shalom Ntahobali, a former student, and Elie Ndayambaje, a former Bourgmestre of Muganza to life in prison. Arsène Shalom Ntahobali was found guilty of genocide, crimes against humanity (extermination, rape, and persecution), and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II thereto (violence to life, and outrages upon personal dignity), while Ndayambaje was found guilty of genocide, direct and public incitement to commit genocide, crimes against humanity (extermination and persecution), and violence to life as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II thereto.

Sylvan Nsabimana, former Prefect of Butare was sentenced to 25 years in prison, for genocide, extermination and persecution as a crime against humanity, and violence to life as a war crime, while Alphonse Nteziryayo, a former Leutenant Colonel in the Rwanda Armed Forces and also Prefect of Butare was sentenced to 30 years for direct and public incitement to commit genocide, following his speeches at two commune meetings in June and at Ndayambaje's swearing-in ceremony on 22 June 1994. Joseph Kanyabashi, former Bourgmestre of Ngoma Commune in Butare was sentenced to 35 years after being convicted, with Judge Ramaroson dissenting in part, on the basis of superior responsibility, of genocide, crimes against humanity (extermination and persecution), and violence to life as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II thereto.

The Trial Chamber then ordered that the convicts would receive credit for time served since their arrest, where applicable, and that they would be kept in detention under the present conditions until their transfer to their designated places of imprisonment.

Nyiramasuhuko was born in 1946 in Ndora commune, Butare prefecture, Rwanda. She was arrested in Kenya on 18 July 1997 while Ntahobali was born in 1970 in Israel, and was arrested in Kenya on 24 July 1997.

Ndayambaje was born on 8 March 1958 in Muganza commune, Butare prefecture, Rwanda. He was appointed Bourgmestre of his commune in January 1983, and he held this office for a number of years until October 1992. On 18 June 1994, he was reappointed Bourgmestre of Muganza commune. Ndayambaje was arrested in Belgium on 28 June 1995.

Nsabimana was born on 29 July 1951, in Mbazi commune, Butare prefecture, Rwanda. He served as Prefect of Butare from 19 April until 17 June 1994. Nsabimana was arrested in Kenya on 18 July 1997.

Nteziryayo was born on 26 August 1947 in Kibayi commune, Butare prefecture, Rwanda. Nteziryayo, was appointed Prefect of Butare on 17 June 1994. He was arrested in Burkina Faso on 24 April 1998.

Kanyabashi was born in 1937 in Huye commune, Butare prefecture, Rwanda. From April 1974 through July 1994, he served as Bourgmestre of Ngoma commune in Butare prefecture. He was arrested in Belgium on 28 June 1995.

ICTR Refers First Trial to Rwanda
The New Times
June 30, 2011

The International Criminal Tribunal for Rwanda (ICTR), for the first time, has referred the first suspect to Rwanda for trial.

Jean Uwinkindi, whose transfer was sanctioned by a special Referral Chamber, was arrested last year in Uganda on an ICTR indictment.He was subsequently transferred to the UN Detention Facility in Arusha.

According to a communiqué from the ICTR, the decision comes after the referral chamber assessed submissions of the Defence and other third parties that included the Government of Rwanda

"While previous Referral Chambers were not inclined to grant similar applications that had been placed before them, this Chamber was convinced based on the evidence that Rwanda possesses the ability to accept and prosecute Uwinkindi's case," the communiqué reads.

"In reaching its decision, the Chamber noted that Rwanda had made material changes in its laws and had indicated its capacity and willingness to prosecute cases referred by the ICTR adhering to internationally recognised fair trial standards enshrined in the ICTR Statute and other human rights instruments".

The Tribunal found that issues like the availability of witnesses and their protection had been addressed to some degree in the intervening period. It requested that the Registrar appoint the African Commission on Human and Peoples' Rights (ACHPR) to monitor Uwinkindi's trial in Rwanda. John Bosco Siboyintore, the head of the Genocide Fugitives Tracking Unit (GFTU), said that the Tribunal's decision is very important.

"This decision is very important because it is the first of its kind and it is going to set precedent for other countries to follow.

The long arm of the law has brought back a genocide perpetrator to face trial in the same area where he committed atrocities," said Siboyintore.

"The victims will see justice done - this decision sends a vibrant message to others still at large".

Jean Pierre Dusingizimana, the president of IBUKA told The New Times that the Tribunal's decision was "very good news" adding that he thinks that eventually, other cases will be transferred to Rwanda.

"In my opinion, I see that the necessary conditions are already fulfilled by Rwanda, for example, the prison facility of Mpanga. I visited it and don't see no reason why it cannot receive people.

Even those from Sierra Leone are really okay," He said, referring people convicted by the hybrid Special Tribunal for Sierra Leone who are serving their sentences here.

Uwinkindi, a former Pastor of the Pentecostal Church of Kayenzi, located at Nyamata sector, Kanzenze commune, Kigali-Rural prefecture, was arrested in Uganda in June 2010.

He was born in 1951 in Rutsiro commune, Kibuye prefecture; he is accused of being responsible for attacks against the Tutsi at Kayenzi Church, at Biyimana and Rwankeri cellules, and in Cyugaro's swamps.

His indictment included counts of genocide, conspiracy to commit genocide, and extermination as a crime against humanity. He was transferred to the UN detention facility in Arusha, Tanzania on 2 July 2010.

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EUROPE

European Court of Human Rights

Official Website of the ECHR

Russia Judges Strasbourg Bill
The Moscow Times
By Tom Washington
June 30, 2011

Russia’s higher institutions of justice are peering over a bill that could neuter the growing pile of rulings against Russia from the European Court of Human Rights.

Alexander Torshin’s bill would allow Russia’s Constitutional Court to block certain decisions from Strasbourg, but it has been receiving mixed views in judicial circles.

The Federation Council, of which Torshin, pictured above, is acting speaker, said that the formula he used had not been laid out properly.

Meanwhile the Arbitration Court has given it the thumbs up, but the Constitutional Court, the apparent beneficiary of the bill, said there were gaps in the draft.

Turborn Jagland, Secretary General of the Council of Europe, said he was “very concerned,” Kommersant reported.

The bill gets its first reading on 1 July, proposing amendments to the criminal procedure code and arbitration code. It calls for a new way to review cases and would transform the balance of power between Strasbourg and Moscow.

If Torshin gets his way then whenever the European Court of Human Rights rules that human rights have indeed been breached, the Constitutional Court in Russia will have to check the European ruling again.

If the Constitutional Court finds that the initial Russian verdict complies with the country’s constitution then no-one, including the Strasbourg court, will be able to demand anything.

This effectively gives the Constitutional Court free reign to ignore what Strasbourg has to say, Kommersant reported.

The ECHR, unsurprisingly, is concerned about the plan.

Turborn Jagland, General Secretary of the European Court of Human Rights, slammed the bill and urged the Russian authorities to ditch the proposal. He fears the legislation would upset relations between Russia and the Council of Europe.

Mikhail Fedotov, head of the Presidential Council for Human Rights added that Jagland is concerned Russia will withdraw altogether from the Council of Europe, something that Lyudmila Alexeyeva, doyenne of the Russian human rights movement and head of the Moscow Helsinki Group, also fears.

But analysts say that anyone worried that Russia will leave the Council can breathe easy. Getting into the Council of Europe in the first place 20 years ago was a major coup for Russian diplomacy.

Although this bill mirrors a bitter and real struggle between modernizers and conservatives, leaving the council would be such a disaster for Russia’s clout internationally that Strasbourg will keep its toehold of influence in Russia, at least for now, Nadia Arbatova of the Institute for World Relations and International Relations, told The Moscow News after Torshin first put his bill forward.

And in reality it changes nothing as all Strasbourg can do it impose a fine when Russia errs. It cannot bring about lasting change, as has been shown when verdicts declaring bans on Gay Pride marches were ruled illegal, only for subsequent rallies to be banned anyway by Moscow City authorities.

Russia’s government has also picked and chosen which laws to follow and Strasbourg’s rulings have fared no better than any others, points out Masha Lipman of the Carnegie Center.

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The Court of Bosnia and Herzegovina, War Crimes Chamber

Official Website [English translation]

Trial Verdict Revoked In Radomir Vukovic Et Al.
The Court of Bosnia and Herzegovina
June 23, 2011

The Panel of the Court's Appellate Division of Section I for War Crimes, in the Radomir Vukovic et al. case against the Accused Radomir Vukovic and Zoran Tomic, following a public session, delivered the Appellate Decision revoking the Trial Verdict and ordered a retrial before the Appellate Panel.

Following a public session at which the Accused, their counsel and the Prosecutor's Office of BiH presented their submissions from their respective appeals, and having examined the First Instance Verdict inasmuch as challenged by the appeals, the Appellate Panel, bearing in mind that the established essential violations of provisions of the Criminal Procedure Code of BiH (the CPC BiH) constitute absolutely essential violations that require a mandatory revocation of the Trial Verdict, revoked the Trial Verdict and ordered a retrial.

On April 22, 2010, the Court of Bosnia and Herzegovina pronounced the Trial Verdict finding the Accused Radomir Vukovic and Zoran Tomic guilty of the criminal offense of Genocide in violation of Article 171(a), in conjunction with Article 31 of the Criminal Code of BiH (the CC BiH). For this offense, the Court sentenced them to long-term imprisonment of 31 years each.

Zurahid Mujcinovic And Sulejman Hrustic Plead Not Guilty
The Court of Bosnia and Herzegovina
June 27, 2011

At a plea hearing before Section I for War Crimes of the Court of Bosnia and Herzegovina (BiH), in the Zurahid Mujcinovic and Another case, the accused Zurahid Mujcinovic and Sulejman Hrustic pleaded not guilty.

On May 16, 2011 the Court of Bosnia and Herzegovina confirmed the Indictment in the Zurahid Mujcinovic and Another case, charging the accused Zurahid Mujcinovic and Sulejman Hrustic with the criminal offense of War Crimes against Civilians.

As inter alia alleged in the Indictment, the accused Mujcinovic and Hrustic, during the period from mid July 1992 until mid August 1992, as members of the 21st Mountain Brigade Srebrenik, e.g. VJ 5155 within the Army of BiH, gave inhumane treatment to Serb civilians. The civilians were unlawfully detained in the building of Omladinski dom, in the village of Rapatnica, Srebrenik Municipality.

Indictment Confirmed in the Zoran Marjanovic Case
The Court of Bosnia and Herzegovina
July 30, 2011

On June 29, 2011, the Court of Bosnia and Herzegovina (BiH) confirmed the Indictment in the Zoran Marjanovic case charging the accused Marjanovic with the criminal offense of Crimes against Humanity.

The Indictment inter alia alleges that the accused Zoran Marjanovic, on June 19, 1992, in the place of Marina Homora, Rogatica Municipality, together with several members of the Army of Republic of Srpska, unlawfully detained one Bosniak family. On this occasion the family was taken to the place of Borike where they were separated. Mother and four underage children were taken by unknown members of the Army of Republic Srpska and unlawfully detained on the premises of Secondary School “VeljkoVlahovic” in Rogatica, while the father was taken into an unknown direction, and has been missing ever since.

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International Criminal Tribunal for the Former Yugoslavia (ICTY)

Official Website of the ICTY

Bosniak Detainee Speaks of Beatings
Institute for War & Peace Reporting
By Rachel Irwin
June 24, 2011

A Bosniak witness testified this week at the Hague tribunal that he was severely mistreated in Bosnian Serb-run detention facilities and that conditions only temporarily improved in one of them when Radovan Karadzic made a personal visit with journalists and diplomats.

The prosecution played video footage of Karadzic’s visit to Kula prison, outside Sarajevo, in August 1992, which was part of a news report by CNN’s Christiane Amanpour.

The camera pans over a group of male detainees in civilian clothes, while Amanpour states that “all the prisoners we’ve seen appear to be in good shape” though a “few look desperately thin”.

In the footage, Karadzic is accompanied by British politician Paddy Ashdown, who would eventually became the High Representative for Bosnia and Hercegovina, a position created as part of the 1995 Dayton Peace Accords which ended the war.

Amanpour tells viewers that “Karadzic made a great show of standing aside while Ashdown interviewed prisoners”.

Karadzic decided to release “just ten prisoners” and “handed out release papers as if he was handing out rewards”, Amanpour says in a voiceover.

He tells cameras that “if we release all those people without [a prisoner] exchange they will be mobilised” once again.

Prosecution witness Hajrudin Karic was detained at the Kula prison when Karadzic came to visit, and he said that the prison staff “kind of camouflaged it so it didn’t look like they were mistreating us”.

“They wanted to make it look like they were taking care of us, but only for one day when Karadzic was making a visit with journalists and the Red Cross,” he said.

Usually, Karic said, the detainees were made to work for food – and this involved burying the dead or digging trenches. He said that because of a severe beating he sustained as a prisoner in Pale, he wasn’t able to go out and work, and had in fact lost some 50 kilos by the time Karadzic came to visit.

“We saw at the end of that clip Mr Karadzic stating that he would not release those who would likely to be mobilised again,” Prosecuting lawyer Patrick Hayden put to the witness. “When you were arrested, were you a member of a militia or an armed group?”

“I wasn’t a member of any group and I was not armed, and I was not a member of any party,” Karic said. “Were you aware of other detainees who were not members of a militia or any armed group?” Hayden asked.

Karic said that “none” he knew were from any armed group.

“These people were not on the front lines,” he said. “[The Bosnian Serbs] just rounded up civilians and brought them in.”

Prosecutors allege that Karadzic, the president of Bosnia's 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 some 8,000 men and boys at Srebrenica in July 1995.

Karadzic, who represents himself in the courtroom, was arrested in Belgrade in July 2008 after 13 years on the run.

When war broke out in spring 1992, the witness said he worked in Pale but was arrested by the Bosnian Serb police at the end of May. He was then detained at the Pale sports centre with more than 100 other Bosniaks, and it was there he experienced the worst abuse, he said.

On one occasion, he was called into another room where two men proceeded to beat him with sticks until someone walked in and said that Karic “wasn’t the one” they were meant to beat.

“Then they stopped beating me…and managed to get me back on my feet and threw me back in the hall,” he said. “My left arm was all black and I lay there helpless for days without any help. That was it.”

Karic said that one day the Pale police chief, Malko Koroman, came to the prison and remarked, “What is this? It’s as if there is some kind of plague here.”

“What did [Koroman] see?” Hayden asked.

“He saw men lying there,” Karic said. “One young man…it was as if his brains had oozed out on the floor. We the prisoners were lying down – we couldn’t stand up because we were being beaten every day.”

“Judging from the circumstances, did it appear that [Koroman] really thought there was some kind of plague in this prison?” Hayden asked.

“Oh no, he did not,” Karic replied. “He was trying to justify himself…. [and was] pretending not to know anything about it.”

The witness was transferred to Kula prison in July 1992 and exchanged the following month.

When it was Karadzic’s turn to cross examine the witness, he focused almost exclusively on the lead up to the war and tried to point out inconsistencies in Karic’s previous statements to the prosecution. At one point, he said that this witness’s statements contradicted those of other witnesses.

Judge Howard Morrison questioned Karadzic’s tactics, remarking that his cross examination “so far seems really peripheral”.

“If there are challenges that go to the heart of the witness’s evidence, make your best points first,” the judge suggested, adding that it was “impermissible” to put another witness’s testimony to Karic in order to prove inconsistencies.

Karic himself grew frustrated at several points in the cross-examination as Karadzic questioned him about specific dates he mentioned in different statements.

“I don’t know what all these dates mean for you,” the witness remarked. “If it’s a day, or two, or three or five. It’s pointless. I don’t see any reason for you to insist on that.”

At one point, he said that Karadzic was only focused on the “silly stuff”.

“Alright, maybe I am a bit silly, but all this lack clarity bothers me,” Karadzic responded.

When the accused finally dealt with matters regarding Karic’s detention, he asked about the number of people held in the sports hall in Pale.

In one statement, Karadzic said, the witness gave a number of “150 to 200 Muslims” while in

another statement he said it was 60.

“You just keep dwelling on these numbers,” Karic retorted. “I mean, it was a full hall. You didn’t dare to speak to anyone, or look at anyone. Everything you’ve been asking me has nothing to do with anything.”

“Perhaps I’m not a very intelligent person, but there is nothing much to be done about that,” Karadzic responded.

He then asked if the witness ever found out who he was mistaken for during the beating in Pale, and what this person might have done.

“You didn’t have to do anything wrong,” Karic said.” They were looking for anybody…these were civilians. Their only fault was that they were Muslims.”

The trial continues next week.

Gotovina Defence Wants Serb Wartime Documents
Internationl for War & Peace Reporting
By Rachel Irwin
June 24, 2011

Defence lawyers for Croatian General Ante Gotovina have asked judges to order Serbia to provide documents they say could be important for his appeal at the Hague tribunal.

Gotovina was convicted on April 15 of ordering unlawful and indiscriminate attacks on Serb civilians during the Operation Storm offensive, which was launched by Croatian forces on August 4, 1995 to retake the Serb-controlled Krajina region of the country.

Gotovina was also found to be responsible for the deportation of at least 20,000 Serb civilians from the Krajina, as well as for the murder, persecution and cruel treatment of Serb civilians. In addition, he was convicted on counts of plunder and wanton destruction.

The only count that he was acquitted of – out of a total of 9 - was forcible transfer. He was sentenced to 24 years in prison with credit for time served. His lawyers filed a notice of appeal last month.

This week’s request pertains to the recent public disclosure of some of the so-called “SDC minutes”—transcripts from meetings of Serbia’s wartime Supreme Defence Council. The SDC meetings – which were attended by high-ranking members of the leadership - are thought to be key to gaining a full and accurate picture of Serbia’s involvement in the wars of the Nineties.

Gotovina’s defence contends that some of the recently released material appears to support arguments they made during the trial – arguments which the judges ultimately rejected.

For example, they cite an article published in May by the SENSE news agency, which in turn quotes from an SDC meeting on August 14 1995, just days after Operation Storm.

The article states that ex-Serbian president Slobodan Milosevic opposed providing help to the Serbian Krajina, RSK, in Croatia because it would be “idiotic” to do so after the Serbs had decided to leave, “causing an exodus of people”.

“This was supposed to be the reason for Yugoslavia to rush to that area and defend those territories which they left running away as fast as they could?!” Milosevic said, according to SENSE.

The Gotovina defence says this is relevant to their appeal because Gotovina was convicted of deportation “based on a finding that an artillery attack was the ‘primary and direct cause’ of the departure of tens of thousands of Serbs from Knin, Benkovac and Obrovac”.

The defence, however, has repeatedly contended that Serb civilians left because of evacuation orders issued by the RSK on August 4, 1995. Therefore, the SDC excerpt “sheds new light on what the Serbian leadership concluded was the cause of the departure of Serb civilians”.

The defence states that it obtained additional SDC transcripts from the tribunal registry,

including some from a meeting held on August 29, 1995. These state that all officers in the 40th personnel centre of the Yugoslav army, VJ, who had been sent to Croatia “shall write statements on the events … during the Croatian aggression against the Republic of Serbian Krajina”.

The 40th personnel centre was allegedly used to covertly provide VJ officers to the Serb armies in Bosnia and Croatia.

At the end of May, the Gotovina defence requested these reports, via the Serbian ambassador to The Netherlands.

Serbia did not respond to these requests, which is why the defence is now asking for a court order.

“It is self-evident that such reports on the causes of the departure of the civilians are both relevant …. and necessary for a fair determination of General Gotovina’s appeal,” his defence states.

Seselj in Third Contempt Case
Institute for War & Peace Reporting
By Rachel Irwin
June 24, 2011

Serbian nationalist politician Vojislav Seselj will make his initial appearance in the third contempt case against him on July 6, judges ruled this week.

The accused first faced contempt charges in 2009, and was subsequently sentenced to 15 months in prison for revealing details about protected prosecution witnesses in one of the books he authored.

He faced similar charges in a recently concluded second trial, in relation to 11 protected prosecution witnesses.

The third case – initiated at the end of May - relates to confidential material he allegedly failed to remove from his website.

“I am a very thorough and patient,” Seselj said earlier this month, during his second contempt trial. “Once one [contempt trial] is completed, I will prepare myself for the next one, and the next one…your problem is how you are going to get away from that.”

Detained at the tribunal since 2003, Seselj is charged with nine counts of war crimes and crimes against humanity – including murder, torture and forcible transfer – for atrocities carried out in an effort to expel the non-Serb population from parts of Croatia and Bosnia between August 1991 and September 1993. He represents himself in court and remains leader of the Serbian Radical Party, SRS, based in Belgrade.

Seselj’s criminal trial has endured repeated delays since it officially began in November 2007, a full year after the original trial date was postponed due to the defendant’s hunger strike. The defence phase of the case has yet to begin.

“My mission is to disassemble The Hague tribunal and I’ve been doing so successfully for eight and half years,” Seselj told the court during his second contempt trial.

Those proceedings ended abruptly after one defence witness refused to testify with protective measures, and the accused would not call the rest of his witnesses unless their identities were revealed to the public.

Court Hears of Nova Kasaba Detainees
Institute for War & Peace Reporting
By Velma Šaric
June 24, 2011

The trial of Zdravko Tolimir continued this week with the testimony of ex-Bosnian Serb army commander Milomir Savcic about the treatment of captured Bosniak soldiers.

Savcic, prosecution witness, began his testimony on June 20, is a former commander of the 65th motorised protection regiment of the Bosnian Serb army, VRS.

Savcic also previously appeared in 2007 as a prosecution witness in the Popovic case, in which seven defendants were sentenced from five years to life for crimes in Srebrenica, including genocide, extermination, murder and persecutions.

He is the 115th prosecution witness to appear in the Tolimir case.

Tolimir served as deputy commander of military intelligence and security in the VRS during the war, reporting directly to the then VRS commander Ratko Mladic, a tribunal indictee, who was recently transferred to the detention unit in the Hague.

He is charged with eight counts, including genocide, extermination, murder, and the forced transfer and deportation of Bosniaks from the Srebrenica and Zepa enclaves in July 1995.

At the start of Savcic’s testimony, the trial chamber permitted the presence of Marko Sladojevic, one of the legal advisers for tribunal indictee and former Bosnian Serb president Radovan Karadzic, since the witness has also been involved with Karadzic's defence team since 2009.

Savcic was granted the protective measure of face distortion, and informed that he must not answer any incriminating questions.

After prosecutor Peter McCloskey read a short resume of Savcic's testimony in 2007, attention switched to a document which is said to have delivered on July 13, 1995, to Mladic, as well as two others, Mladic's assistant commander for morale, Milan Gvero, and Zoran Malinic, who was the commander of the military police batallion of the 65th motorised regiment.

Testifying earlier in June this year, Malinic contested the authenticity of the cited document and corroborated Tolimir's claim of always having the best intentions when dealing with any Bosniak prisoners of war.

In the document referred to in court, Savcic allegedly wrote how Tolimir had instructed captured Bosniak men be treated.

"First, unauthorised access to any prisoner is prohibited. UNPROFOR (United Nations) vehicles are not allowed to travel on the road from Bratunac to Konjevic Polje, which passes by the football field in Nova Kasaba [where the men were held]. Thirdly, the prisoners are to be put in facilities where they ‘cannot be seen and photographed’," the document allegedly said.

The prosecution has implied that particularly this third point demonstrates an attempt to first hide the imprisoned Bosniaks, then execute them.

The witness confirmed that he couldn't remember having created or directed such a document to anyone.

"It could be that I simply wrote down a document which Tolimir dictated to me, but I can't remember doing so," he added.

Moreover, he said, there are strong indications that the document is not authentic.

"First, it wasn't signed, and an unsigned document couldn't be forwarded to anyone. Second, there are so many spelling mistakes and errors,” he said.

Savcic also said that he "failed to see anything dubious or prohibited in the document's contents", making a special reference to Tolimir's proposal to remove the prisoners so that they could not be seen. He explained why he thought this was legitimate.

"First, there was the possibility of bombing of VRS positions by NATO, which would endanger these prisoners,” he said.

"Also, it is much easier to protect prisoners in closed spaces and also in accordance with the Geneva Conventions.. they should be protected from the public eye."

The first indictment against Tolimir was presented on February 25, 2005. He was arrested on May 31, 2007. In December 2009, he pleaded not guilty to all counts.

The trial continues next week.

ICTY Judges Hold Peer-To-Peer Meeting with Judges from former Yugoslavia
International Criminal Tribunal for former Yugoslavia
June 27, 2011

Today, Judge Fausto Pocar and Judge Bakone Justice Moloto from the International Criminal Tribunal for the former Yugoslavia meet in Becici, Montenegro, with some 20 judges from Croatia, Bosnia and Herzegovina, Serbia, Montenegro and the former Yugoslav Republic of Macedonia to share experiences in adjudicating war crimes cases.

The peer-to-peer meeting is being held as part of the War Crimes Justice Project (WCJP). The aim of the Project is to facilitate the transfer of the Tribunal’s unique institutional knowledge and specialised skills in order to enhance the capacity of legal professionals in the region to process complex war crimes cases.

Commenting on the peer-to-peer meeting, Judge Bakone Justice Moloto said, "The exchange of ideas and experiences between professionals at the ICTY and our counterparts in the region is part of the Tribunal's legacy, which is aimed at strengthening the jurisdictions of the region to enable them to continue carrying out the important work of processing war crimes cases once the Tribunal has closed down."

The President of the Montenegrin Supreme Court, Judge Vesna Medenica, said: “The ICTY will soon finish its work. National courts from the former Yugoslavia are actively participating in the ICTY’s completion strategy and carrying on the Tribunal’s legacy in processing the remaining war crimes cases. The national courts have the advantage of the institutional knowledge and expertise generated by the ICTY, in the areas of international criminal and humanitarian law.”

This is the fourth peer-to-peer meeting to take place in the region since September 2010. Previous meetings were held in Sarajevo, Belgrade and Zagreb. The next peer-to-peer meeting is expected to be held in Sarajevo in September 2011.

The War Crimes Justice Project is a 4-million euro regional project funded by the European Union and carried out by the Organization for Security and Co-operation in Europe/Office for Democratic Institutions and Human Rights (OSCE/ODIHR) in partnership with the ICTY, the UN Interregional Crime and Justice Research Institute (UNICRI) and OSCE field operations.

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Domestic Prosecutions In The Former Yugoslavia

Croatia: Three former police officials arrested for alleged war crimes
Adnkronos International
June 20, 2011

Three former police officials have been arrested on suspicion of having committed crimes against Serb civilians during the 1991-1995 war that followed the breakup of the former Yugoslavia, local media reported on Monday.

The police arrested Djuro Brodarac, wartime police chief in the town of Sisak, southeast of Zagreb, and two other former police officials, Vladimir Milankovic and Drago Bosnjak, it said.

According to media reports, they will be charged with “chain of command responsibility” for the death of up to 600 Serb civilians in the Sisak region in 1991 and 1992.

Brodarac also served as a de-mining adviser to the Croatian government. He and Milankovic allegedly ordered the crimes, while Bosnjak carried them out, the report said.

Croatia’s human rights organization, The Youth Initiative for Human Rights, hailed the arrests, saying that for twenty years the three evaded justice while “the victims and their families got no satisfaction”.

“According to some indications, up to 600 Serb civilians were killed or listed as missing in Sisak in that period, which would make it one of the worst mass crimes committed in the war in Croatia,” the Youth Initiative said in a statement.

Croatia seceded from Yugoslavia on 28June , 1991. The secession sparked a war against the Yugoslav army and Belgrade-backed Serb rebels who controlled as much as a third of the country.

The United Nations International Criminal Tribunal for the former Yugoslavia in April sentenced three Croatian generals to long prison terms for ordering the ethnic cleansing of areas inhabited by Serbs in 1995. The sentencing shocked many Croats.

Alleged Bosnian war criminal arrested in Roanoke County
The Roanoke Times
By Mike Gangloff
June 25, 2011

A Bosnian prison camp guard accused of abusing civilian prisoners during civil war in the former Yugoslavia in the 1990s was arrested Friday in southwest Roanoke County, where he'd lived quietly as a welder and soccer coach for more than a decade.

Almaz Nezirovic, 52, was known here for creating a Bosnian soccer team that played in adult leagues and drew from various sides of his country's previously warring factions. His team had Bosnians of Muslim, Croatian and Serbian backgrounds, according to a 2000 Roanoke Times article.

"When I came here, my country was war," Nezirovic said in the article. "I tried to bring my people together and the first idea was through a soccer team."

But before he came to the Roanoke Valley in 1997, Nezirovic was a member of the Croatian Defense Council military force, federal prosecutors say. He worked at the Rabic prison camp in Bosnia-Herzegovina, where in 1992 he "willfully caused great suffering and serious injury" to Serb prisoners, according to an indictment unsealed Friday in U.S. District Court in Charlottesville.

The federal indictment accuses Nezirovic of lying on an application for U.S. citizenship and making a false statement during a naturalization interview. Nezirovic indicated on the applications that he had never committed acts for which he could be charged criminally -- such as the alleged abuse of prisoners, the indictment said.

In Roanoke County, Nezirovic worked sporadically as a welder. Online county records show that in 2001 he bought a two-story brick house in the 4300 block of Cresthill Drive. It was in foreclosure last fall, according to a newspaper advertisement for a trustee's sale.

Nezirovic lived with his mother, according to Vemila Selimi, a longtime family friend who came from Bosnia and now lives in Roanoke. On Friday, a woman who answered a telephone number listed for Nezirovic said she did not speak English.

Nezirovic followed his mother to Roanoke, as did other members of the family later, Selimi said. His father recently suffered health problems and returned to Bosnia.

Selimi said she didn't want to discuss what happened during the war. She said she saw Nezirovic's arrest the result of changing international attitudes toward those regarded as war criminals.

If convicted of the federal charge tied to his citizenship application, Nezirovic faces a maximum penalty of 15 years in prison.

He also may be sent back to Bosnia-Herzegovina. There, he faces charges, U.S. Immigrations and Customs Enforcement Agent Michael Tarantino testified Friday. Tarantino said he did not know the specifics of those charges.

The indictment said other members of Nezirovic's military unit "participated in the inhumane treatment of detained Serb civilians" and have been convicted of war crimes.

The indictment said that in 1997, when Nezirovic applied for application to the United States as a refugee, he failed to fully disclose his actions during the war by saying "apart from taking part in this war, I haven't committed any crimes."

"Had Nezirovic provided truthful and complete responses, refugee status would not have been granted" and he would not have been allowed into the United States, the indictment said.

In 1999 and 2004, Nezirovic filed more immigration forms that did not disclose his military background or activities, the indictment said. In 2006, he stated under oath during an interview, part of the citizenship application process, that the information he had submitted was complete, the indictment said.

Nezirovic is scheduled for a detention hearing Monday in federal court in Roanoke.

Man Accused of War Crimes Allowed to Await Trial at Home
The Roanoke Times
By Mike Gangloff
June 28, 2011

A Roanoke County man charged with immigration violations in the United States and with war crimes in his native Bosnia-Herzegovina will be allowed to await trial at home so he can continue treatment for an array of mental and physical health problems, a federal judge ruled Monday.

Almaz Nezirovic, 52, is haunted by past conflicts, dreaming of long-deceased comrades who ask him why he survived the wars that racked the former Yugoslavia in the early 1990s, his son Alen Nezirovic testified in U.S. District Court in Roanoke.

The elder Nezirovic suffers from post-traumatic stress disorder and hypertension, and has been withdrawn and depressed since losing his welding job in recent years, his son added.

Nezirovic was charged last week with two offenses tied to concealing his work with a Croatian military force in his applications for refugee status and for U.S. citizenship. A guard at the Rabic camp, Nezirovic allegedly abused Serb civilians in 1992, according to a federal indictment unsealed Friday.

Nezirovic pleaded not guilty to the immigration charges Monday. Bail was set at $75,000. Relatives indicated they would pledge the family house to cover it.

Assistant U.S. Attorney Pat Hogeboom said that if Nezirovic is convicted on either charge, he will seek to immediately deport him to face war crimes charges in Bosnia-Herzegovina.

Agent Michael Tarantino of U.S. Immigration and Customs Enforcement testified that Bosnia-Herzegovina apparently first sought Nezirovic's extradition in 2002. Tarantino said he had worked the case only since February and did not know what happened during the years since the first extradition request, other than that it is standard for the U.S. government to try to confirm the basis of such charges before sending someone to another country for trial. Tarantino said he had traveled to Bosnia and spoken to eight victims who said Nezirovic was among guards who subjected them to illegal detention, beatings and humiliation.

But Alen Nezirovic, who came to Roanoke with his family in 1997, said his father had worked to heal the wounds of conflict, helping Bosnian immigrants find work and starting a recreation league soccer team in which Bosnians of Croatian, Serbian and Muslim backgrounds played together. His father married a woman whose ethnicity was part Serb and part Croatian, Alen Nezirovic said.

"If he hated as he is accused of ... love prevailed," Alen Nezirovic said.

U.S. District Court Judge James Turk said he did not think Nezirovic would flee before trial, or that he posed any danger to the community or himself.

"He's in poor health, and I think he'd be better at home," Turk said, ordering that Nezirovic continue medical treatment.

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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)

Tribunal Case Applicant Names Three More Suspects
VOA Khmer
By Kong Sothanarith
June 20, 2011

Cambodian-American lawyer Seng Theary announced Monday she plans to apply as a civil party for the Khmer Rouge tribunal's Case 004, the second of two controversial cases at the UN-backed court.

In so doing, she named three high-level Khmer Rouge cadres, Im Chaem, Ta Tith and Ta Tha, for crimes related to two security centers where up to 30,000 people died.

Seng Theary, who is the head of the Association of Khmer Rouge Victims in Cambodia, said she would file her complaint to push the case through the court, which has been accused of dragging its feet on two cases, Nos. 003 and 004.

Prime Minister Hun Sen and other Cambodian officials oppose both cases going forward, because they say they could stir up surviving Khmer Rouge members.

Court officials have repeatedly denied any political interference. However, investigating judges have come under increased criticism for their handling of cases 003 and 004, even as the court prepares for its first hearing in Case 002, to try four jailed leaders for atrocity crimes. That hearing is scheduled to open June 27.

"As you are and will be already congregating in Phnom Penh in the coming days for the opening hearings of Case 002, I request that you take this opportunity also to complete the application for Cases 003 and 004," Seng Theary wrote in an open letter to victims and civil party lawyers.

Seng Theary said she was requesting the investigating judges to look into the security centers of Wat Tlork and Boeung Rai, among others.

She said her mother had been killed at Boeung Rai, a security center that was "overlooked" by court investigators along with other sites in the Eastern Zone, where "many senior officials of the current Cambodian People's Party were former KR cadres." She also accused the court of failing to investigate the areas because they are "politically sensitive with the current ruling party."

Her filing for Case 004 follows a rejection from investigating judges for her application as a participant in Case 003, which she is appealing. Seng Theary incurred a sharp rebuke from the court over that filing, when she named as suspects Khmer Rouge commanders Sou Met and Meas Muth.

On Monday, tribunal spokesman Dim Sovannarom said her open letter abused confidentiality principles of the court by naming suspects the tribunal has so far kept anonymous.

However, Latt Ky, a tribunal monitor for the rights group Adhoc, said the letter should not be a problem for her and that it served to move the case forward.

Tribunal Orders Four Jailed Suspects to Appear
VOA Khmer
By Kong Sothanarith
June 21, 2011

The Khmer Rouge tribunal's Trial Chamber has officially ordered four jailed leaders to appear for their initial atrocities trial hearing, advising the aging defendants they will be expected to sit throughout the proceedings.

The hearing is set for June 27 and will mark the beginning of a complicated trial that analysts say is at the heart of the tribunal's efforts.

Defendants Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith will be present before Trial Chamber judges from 8:30 am until the end of the hearing, the chamber's chief judge, Nil Nonn, said in a court order sent to the chief of provisional detention.

The Trial Chamber expects to review more than 1,000 witnesses, experts and civil party applicants for the trial, known as Case 002. More than 2,000 Khmer Rouge victims have filed to become civil parties, but that number will be smaller by the end of the June hearing.

A full trial for the four leaders could start as soon as August, court officials said.

In Hearing, Ieng Sary Defense Seeks His Release
VOA Khmer
June 28, 2011

Defense lawyers for Ieng Sary, the former Khmer Rouge foreign minister, said Tuesday he should be released from the UN-backed tribunal, claiming he was already tried for genocide under the Vietnamese occupation when the movement was ousted in 1979 and was protected by an amnesty deal years later.

In the second day of a preliminary hearing that marks the opening of a landmark trial of four former Khmer Rouge leaders, defense told the court its attempt to try Ieng Sary amounted to double jeopardy. Ieng Sary was tried in absentia at the Vietnamese court and sentenced to death for genocide, in what most legal experts consider an illegitimate trial.

Ieng Sary went on to help lead the Khmer Rouge in a guerrilla insurgency that lasted nearly two decades. He defected with 20,000 soldiers in 1996, under a broad government amnesty. Legal experts say the current tribunal is unlikely to accept the defense arguments, given the wide array of serious crimes he is now facing.

Ieng Sary is charged with war crimes, crimes against humanity, genocide and other crimes related to the Khmer Rouge leadership, under which up to 1.7 million Cambodians died. He has denied those charges, as have defendants Nuon Chea, Khieu Samphan and Ieng Thirith.

In interviews with VOA Khmer, former Khmer Rouge cadre who were visiting the court Monday said they want their former leaders to be freed or have reduced sentences, in part due to their old age.

Khim Kheng, 53, a former cook and cleaner at the foreign affairs ministry, led by suspect Ieng Sary, said she only saw him commit good acts.

"He told us to save food in order to help poor people in rural areas," she said. "About torturing his own people, I never saw that."

In meetings held at the ministry, Ieng Sary discussed poverty reduction and development, she said. He never discussed a policy of killing, and when the Khmer Rouge was ousted, all of the officials from the ministry were still alive.

Um Ros, 82, a former Khmer Rouge soldier in the Southeastern Zone, said soldiers there did not have a policy of killing but built boats for people to use for fishing. The killing was the work of soldiers in the Southwest Zone, led by "The Butcher" Ta Mok, he said.

"My first request is that Duch and Khieu Samphan be freed, because the two of them were used by the top leaders," he said. "Pol Pot, Ieng Sary, Ta Mok and Nuon Chea should be punished heavily, because they ordered people killed."

Historic Case 002 Opens at KRT
Phnom Penh Post
By James O'Toole and Meas Sokchea
June 28, 2011

Former Khmer Rouge Brother Number 2 Nuon Chea walked out of proceedings yesterday at Cambodia's war crimes tribunal during the first day of the court's trial against him and three other senior KR leaders.

The hearing marked the first day of a trial that has long been described as the court's most important case, one that brings together a group of former cadres accused of presiding over the deaths of as many as 2.2 million Cambodians: Nuon Chea, former KR head of state Khieu Samphan, foreign minister Ieng Sary and his wife, social action minister Ieng Thirith. Dignitaries, victims and other visitors packed the public gallery at the tribunal yesterday, the first time that all four accused have been brought together in the courtroom.

Four days of hearings on procedural matters, including witness lists and the statutes of limitations for the alleged crimes, are scheduled for this week.

Further hearings, including witness testimony, are not expected until August or September.

Nonetheless, yesterday's proceedings were not without drama, as Nuon Chea walked out after claiming the tribunal was biased against him.

The 84-year-old and his lawyers complained that the court's Trial Chamber had declined to accept their list of proposed witnesses, and that the judicial investigation in the case had ignored potentially exculpatory evidence.

"My fellow Cambodian citizens, inside and outside Cambodia, I am not happy with this hearing, and I would like to allow my co-counsels to explain the reasons behind this," Nuon Chea said.

He donned his trademark dark sunglasses during the hearing to block out the glare of the lights in the courtroom, and wore a woolen ski cap because, his counsel explained, he was "affected by the circulation of the air-conditioning without wearing it".

Taking over for Nuon Chea, Dutch defence lawyer Michiel Pestman said the Case 002 investigation had been "unfair" and called for the proceedings to be "terminated".

"The sole purpose of the judicial investigation was to collect evidence against our client, and to ignore all the evidence that could put his role in the Khmer Rouge years in a different, more positive light," Pestman said.

Pestman referenced the controversy over the court's third and fourth cases, in which the investigating judges have apparently sabotaged the investigat-ions amid opposition to the cases by the Cambodian government.

The government, he said, had "failed to co-operate" with the court, noting that a number of high-level members of the ruling Cambodian People's Party had ignored summonses to provide evidence in the case.

"Our client does not want to longer honour these proceedings with his presence unless his objections and all of his witnesses . . . are put on the agenda, as the rules of this court prescribe," Pestman said, adding that Nuon Chea would boycott the hearings until the Trial Chamber judges were "willing to discuss his objections and all of his witnesses".

"The people of Cambodia deserve a fair trial, a proper trial, aimed at establishing the truth and not simply at rubber-stamping history books written in Vietnam or America," Pestman said.

Nuon Chea subsequently exited the courtroom with assistance from security guards, saying he would "prepare myself to return if your honours will consider my request to be put for discussion before the general public in the open court".

Pestman said outside the courtroom that the defence team hoped to provide the "proper context" to the case by examining the roles of foreign powers, including the US and Vietnam, in fuelling conflict in Cambodia.

Under the agreement between Cambodia and the UN establishing the tribunal, it can prosecute only crimes that occurred between 1975 and 1979.

Pestman said, however, that looking exclusively at this period in attempting to analyse the reign of the Khmer Rouge would be like "reading one page out of a history book and tearing out all the others".

Former American secretary of state Henry Kissinger, an architect of the US bombing of Cambodia in the 1970s, is just one name on the Nuon Chea team's list of roughly 300 proposed witnesses, the vast majority of whom had been rejected, Pestman said.

Defence lawyers in Case 002 have also called for the testimony of King Father Norodom Sihanouk and six senior government officials including National Assembly President Heng Samrin and Senate President Chea Sim, all of whom have apparently ignored summonses issued by the tribunal.

International co-prosecutor Andrew Cayley countered that all parties had had proposed investigative requests rejected by judges at the court, and that allegations of political interference, rather than being ignored, had been subject to "extensive, public, written litigation".

The court was scheduled to further discuss proposed witness lists on Thursday, he said.

"Let us be absolutely clear that many of the reasons the defence counsel have given for their client walking out this morning, and which have been received by the public, are simply not true," Cayley said.

"All the parties, because of the public interest in this case, are obliged to represent things properly before the Trial Chamber so that ideas don't develop outside this courtroom that may be destructive to the processes that are going on here."

A significant portion of yesterday's session was devoted to the question of whether Ieng Sary's conviction in absentia at the 1979 People's Revolutionary Tribunal, convened shortly after the fall of the Khmer Rouge, could constitute double jeopardy in the case.

The court's Pre-Trial Chamber has already ruled that the 1979 proceedings did not meet basic legal standards and are no bar to Ieng Sary's current prosecution, though this ruling is not binding on the Trial Chamber.

As in previous hearings, concerns about the elderly suspects' health also came to the fore.

Nuon Chea was followed in exiting the courtroom by Ieng Thirith, who complained of ill health and at one point during the morning session appeared to have fallen asleep. Ieng Sary, who has complained of back pain and urological problems, left during the afternoon.

Hearings at the tribunal are set to resume today, with discussions of the statutes of limitations on crimes alleged in the indictment on the agenda.

Khmer Rouge UN Tribunal Centers on Controversial Amnesty
VOA Khmer
By Robert Carmichael
June 28, 2011

The U.N.-backed war crimes tribunal continued its hearings into the four surviving leaders of Cambodia's Khmer Rouge movement. Arguments revolved around a controversial amnesty granted in 1996 to the movement's former foreign minister.

In 1996 Khmer Rouge foreign minister Ieng Sary defected to the Cambodian government after receiving a royal pardon and amnesty.

With him came several-thousand Khmer Rouge soldiers, in a move that pre-empted the collapse of the ultra-Maoist movement that brought so much destruction to Cambodia.

It was a shrewd decision by Ieng Sary, the political realignment at the end of the Cold War meant the days of the Khmer Rouge were numbered.

During the current U.N.-backed war crimes tribunal, Ieng Sary's defense lawyers said his amnesty should stand and he should not be on trial at all.

"Mr. Ieng Sary has abided by all of the conditions of the amnesty, and the amnesty itself as I have indicated brought fruit," said defense lawyer Michael Karnavas. "The very fruit that it was intended to bring. Peace to Cambodia, because as after that the rest either put down their arms or just gave up."

Ieng Sary is one of four surviving leaders appearing before the tribunal in its second, and likely last, case prosecuting the crimes of the Khmer Rouge movement. The three other defendants are Nuon Chea, also known as Brother Number Two, who is considered the movement's chief ideologue; Khieu Samphan, the head of state; and Ieng Thirith, the social affairs minister.

The defendants deny they committed any of an array of offenses, including genocide, war crimes, and crimes against humanity.

The court says the Khmer Rouge caused the deaths of as many as 2.2 million people between 1975 and 1979. The four defendants are essentially on trial for devising the policies that led to so many deaths.

The tribunal's international deputy prosecutor William Smith rejected the defense arguments. He said one error was the defense's submission that it knew of no international law that said a state is compelled to prosecute serious crimes such as genocide.

Smith cited Article 1 of the Genocide Convention, which specifically compels states to punish that crime.

"To conclude, your honors, we submit the decree did not and nor was it intended, to provide an amnesty for genocide and other crimes in the future," Smith said.

U.S. Ambassador for War Crimes Stephen Rapp told journalists this case shows when crimes of such a nature are committed, justice has to be done.

"And it may not be achieved the next day or the next year, but that it needs to eventually result in a trial," Rapp said. "And this case I think sends a signal around the world now, where there are more and more institutions like this one that are dealing with allegations of grave atrocities, that others who may commit crimes like these men were accused and this woman is accused of committing will also face their day in court."

The hearings this week are procedural, and the trial is expected to start later this year.

One complication is that the four defendants are elderly, between 79 and 85 years old, and none is in robust health. The trial will likely take several years, and there are fears one or more could die before it ends.

But new rules mean the court can hand down convictions or acquittals as the trial progresses, which means even if a defendant dies during the hearing, they would still be convicted or acquitted of the most serious of crimes.

More Questions for KRT Case 003
Phnom Penh Post
By Thomas Miller
June 29, 2011

Senate president Chea Sim yesterday appeared to endorse Prime Minister Hun Sen's stated opposition to prosecutions at the Khmer Rouge tribunal beyond its second case, while the visiting United States ambassador for war crimes urged the court to resist political interference.

Chea Sim, who is also president of the Cambodian People's Party, said that his party "supports" the court's process "along the line of what was stated" by Hun Sen to United Nations Secretary-General Ban Ki Moon during a meeting in the capital on October 27 last year.

In that meeting, Hun Sen "clearly affirmed that Case 003 will not be allowed", Foreign Minister Hor Namhong told reporters at the time, fuelling speculation that the government was meddling in judicial decisions.

"The court will try the four senior leaders successfully and then finish with Case 002," Hor Namhong added.

Speaking yesterday at the 60th anniversary of the CPP, Chea Sim said his party "supports the process" of the court "to try the crimes committed by the most senior leaders of the regime".

While the court's mandate gives it jurisdiction to try two categories of people -- "senior leaders" and "those most responsible" for the atrocities of the regime -- Chea Sim mentioned only the first.

Government officials have repeatedly stated that trying mid-ranking cadres, such as the three suspects in Case 004, could spark unrest and plunge the Kingdom back into civil war.

Both cases remain officially open but the court's co-investigating judges have apparently sabotaged the Case 003 investigation, which concerns former KR navy commander Meas Mut and air force commander Sou Met. No information has been released on the Case 004 investigation.

In comments to the press yesterday during a visit to Phnom Penh, the United States Ambassador-at-Large for War Crimes Issues, Stephen Rapp, said the US expected decisions at the tribunal to be based on the law and the facts of the case.

"We know that people would like to see this tribunal finished at the end of Case 002, but that is not a political decision. The decision is to be made by this court according to the statute, according to the law, according to the facts that are developed," he said.

Clair Duffy, a trial monitor for the Open Society Justice Initiative who attended the press briefing, said yesterday that Rapp's statement "fail[ed] to recognise that previous statements of this nature have had no impact on the situation".

"Right now, action -- in the form of an independent inquiry -- is what's required here, not general statements about judicial independence," Duffy said.

OSJI has called for an investigation into claims that Case 003 had been deliberately botched by the co-investigating judges -- who did not interview suspects or investigate crime sites -- amid political pressure.

Duffy said Chea Sim's comments were "definitely suggestive" of pressure on the court.

"Why would there be need for any reference to the executive in talking about an independent judicial process, particularly knowing that the Prime Minister expressed clear opposition to Cases 003 and 004 during that 27 October meeting?" she said.

Phay Siphan, spokesman for the Council of Ministers, said the government respected the mandate of the court.

"But we do have a right to express ourselves as a government too, or as a political party, too," he added.

KR Tribunal: Contempt Proceedings Considered
Phnom Penh Post
By Thomas Miller
June 29, 2011

Judges at the Khmer Rouge tribunal are actively considering contempt proceedings against people who have leaked confidential court documents as well as media outlets that have published them, a court spokesman said yesterday.

The comments followed the publication on Monday of confidential documents by the New Zealand-based Scoop news site.

"The co-investigating judges have already made clear that they may pursue by legal means anyone publishing from confidential court documents," court spokesman Lars Olsen said, referring to a June 9 statement.

"Contempt of court procedures against persons who forwarded confidential documents without authorisation and against those who published them are under active consideration by the office of the co-investigating judges," Olsen added.

The United States-based Christian Science Monitor published two articles earlier this month that quoted extensively from confidential documents relating to the court's controversial Cases 003 and 004, sparking the statement from the judges.

Scoop cited the judges' rejection of a Case 003 civil party application by Rob Hamill, who lost his brother to the Khmer Rouge, in explaining its decision to publish.

Khieu Samphan Speaks
Phnom Penh Post
By Thomas Miller
July 1, 2011

Former Khmer Rouge head of state Khieu Samphan pledged yesterday to help Cambodia's war crimes tribunal discover "the truth" about Democratic Kampuchea and his role within the regime.

The promise came during a morning session at the court yesterday focused on proposed witness lists in the trial of Khieu Samphan, former KR Brother Number 2 Nuon Chea, social action minister Ieng Thirith and her husband, foreign minister Ieng Sary.

Khieu Samphan told the court he would help it "ascertain the truth", though he added that such truth would only come out if the court agreed to hear witnesses on his behalf.

"I think it is a very important moment for me and for my fellow Cambodian citizens who are hungry to understand what happened between 1975 and 1979. I personally have been waiting for this moment for so long," the 79-year-old said. "As long as I am still as healthy as I am today, I will contribute to the best of my ability, of course from the bottom of my heart, to assist or cooperate with the work of the court."

Khieu Samphan complained, however, that most of the witnesses approved by the Trial Chamber judges thus far have been identified by the prosecution rather than the defence teams.

"Many of the witnesses that I proposed have known me very well -- they have been close to me, they know where I would be doing anything, and of course they have a very good account of me," he said.

"I would really request that the chamber take note and include those witnesses and summon them for testimony. They shall be heard -- I don't say they should, but they shall be heard.

"Some witnesses of course actually do not really tell the true story, or sometimes they just exaggerate the information. That's why it is really important that our witnesses be included."

Khieu Samphan has previously claimed that he did not have any real power during the Democratic Kampuchea period and was not responsible for any atrocities committed.

The witness list under discussion yesterday covered only individuals tapped to testify during the first phase of the trial, and additional proposed witnesses may be considered as the case progresses.

Earlier in the hearing, the defence team for Nuon Chea earned a rebuke from the judges after complaining about the alleged unfairness of the investigation and revealing the identity of one of their proposed witnesses. The judges had instructed the parties to refer to witnesses only by coded pseudonyms to protect them ahead of their potential appearance in court.

Dutch defence lawyer Victor Koppe charged that the court's investigating judges had refused to interview witnesses who could benefit Nuon Chea's case, and in particular the former cadre's claims in relation to the role of Vietnam during the DK period.

"Our client instructed us that it was very important to investigate the role of Vietnam, not only in the period of 75-79, but also in the time before and after the period of Democratic Kampuchea," Koppe said.

"Many decisions in the DK period were taken because of Vietnamese policy, and such decisions can only be properly understood if Vietnam's role and policy is thoroughly investigated."

As an example of one proposed witness on the issue whom the investigating judges had declined to interview, Koppe cited a man whom he referred to as "Mr X", later providing biographical details that clearly revealed the individual as Pen Sovan, the former prime minister of the Vietnamese-backed People's Republic of Kampuchea.

"Our client was of the opinion that the testimony of Mr X is very, very important for ascertaining the truth -- very important to understand the role of Vietnam," Koppe said.

Deputy prosecutor William Smith cut Koppe off during his remarks, however, saying it was "not appropriate to call someone Mr X and then start to bring out every detail that would identify Mr X".

Koppe went on to criticise the quality of the investigation in the case, prompting Smith to interrupt him once again.

"You will lose control of this trial if people are allowed to make speeches and not confine themselves to the agenda that you set," Smith advised the judges.

Pen Sovan told The Post last June that he had yet to be summoned as a witness, but that it would be his "honour" to give evidence at the court.

During the first day of the trial on Monday, Nuon Chea walked out in protest, saying he was "not happy" with the proceedings. His lawyers later explained that he did not wish to be present in the courtroom "unless his objections and all of his witnesses ... are put on the agenda".

Defence lawyers have called for the testimony of King Father Norodom Sihanouk and six senior government officials including National Assembly President Heng Samrin and Senate President Chea Sim, all of whom have apparently ignored summonses issued by the tribunal. Nuon Chea's lawyers have also called for witnesses in relation to the roles of Vietnam and the United States in the DK period.

Nuon Chea excused himself early from hearings on Tuesday and Wednesday because his own case was not on the agenda. Koppe said following the hearing yesterday that his client was likely upset his lawyers had been cut off, and that the team was considering whether it would be "fruitful" for him to participate in the trial in the future.

"I would say that if we continue like this -- an initial hearing . . . where an agenda is set and where there's no room to have a proper debate -- then there might come a point in time that there seems to be no point for him to be present," Koppe said.

Others were more sanguine. Co-prosecutor Andrew Cayley said it had been "an extremely positive week", and that the court was "in a place where a lot of people said we never would be".

"A lot of people said this trial would never happen, and actually, it's going to trial and it appears, from what we've seen of the recent hearing, and also the accused and their level of cooperation, that it's more than many, many people could have hoped for," he said.

[back to contents]

Special Tribunal for Lebanon

Official Website of the Special Tribunal for Lebanon
In Focus: Special Tribunal for Lebanon (UN)

Mikati Gov't Obliged to Cooperate with Special Tribunal - Legal Source
Asharq Alawsat
By Yousef Diab
June 27, 2011

The government of Najib Mikati is now engaged in a close race which has come to the fore in recent hours, between the new cabinet's ministerial statement, which has yet to prepare a satisfactory formula with regards to the Special Tribunal for Lebanon, and the indictment expected to be issued imminently from the Tribunal's pre-trial judge Daniel Fransen, who has gathered the views of accompanying judicial and legal references in The Hague. [It is believed that] the indictment will be explicitly clear, and for the first time will reveal the identity of those involved in the assassination of Lebanese Prime Minister Rafik Hariri and his companions, including all those who masterminded the crime and executed it.

The U.N.-sponsored tribunal investigating the assassination of former Lebanese Prime Minister Rafik al-Hariri is set to issue indictments soon. [It is believed that] the indictment will be explicitly clear, and for the first time will reveal the identity of those involved in the assassination of Lebanese Prime Minister Rafik Hariri and his companions, including all those who masterminded the crime and executed it.

If projections are correct this indictment will be issued in early July, before the ministerial statement is completed in its final form, and certainly before the government can act upon it. This projection is supported by the fact that four Lebanese judges, all members of the Special Tribunal, departed for The Hague late last week. This judicial bombshell will perplex the new government and immediately present it with its hardest test, in terms of dealing with the obligations of the resolution and the government's requirements. Information circulating in the corridors of the court, as reported by Asharq Al-Awsat, suggests that the Tribunal's pre-trial judge Daniel Fransen Fransen "has enough evidence and proof to enable him to issue a strong and solid indictment, on the basis of documents given to him by the UN prosecutor Daniel Bellemare over three phases, and Fransen subsequently does not need any further additions to strengthen the accusations".

In this context, a legal source speaking to Asharq Al-Awsat stressed that: "The government of President Mikati cannot evade the requirements of this decision, on the basis of the cooperation agreement between the Lebanese judiciary, the office of the International Tribunal, and the office of the International Attorney General (Daniel Bellemare), signed in Beirut in the spring of 2009, during the government of Prime Minister Fouad Siniora, under the approval of Hezbollah ministers and the March 8th ministerial team".

The legal source stressed that "the Lebanese judiciary representing the public prosecutor must carry out all that is required in terms of the indictment, whether in relation to notifications, or the implementation of arrest warrants for potential defendants, Lebanese and non-Lebanese, residing on Lebanese territory". He said that "this government, or any other government, cannot choose between accepting or rejecting such cooperation. Here the matter of rejection does not only mean Lebanon unilaterally denying the agreement it entered into with the Tribunal, against the backdrop of UN sponsorship, but it also means a rejection of international resolutions and the international community, which would have serious implications for the Lebanese state as a whole". In the opinion of the aforementioned source: "immediately after the issuance of the indictment, and when the political and judicial references are provided with a copy detailing those who will be charged with involvement in the assassination of Rafik Hariri, either directly, or as an accomplice or instigator, Lebanon will be under the international microscope, and it will be expected to act in accordance with its commitments and apply them, rather than issue draft texts that have no connection with reality, and lead the country to destruction".

At this time, Justice Minister Chakib Kortbawi stated to Asharq Al-Awsat that "the council of ministers is the body that will approve the mechanism in which Lebanon will deal with the International Tribunal, out of respect to international resolutions and international legitimacy". He stressed the need "not to pre-empt the ministerial statement, and to refrain from speculation and predictions that can clutter people's minds". He wished for everyone to "be calm and wait for the statement to be completed, as it will soon come out into the open". He stressed that "provisions must be concluded before seeing the work of the new government".

Future Bloc Warns Against Renouncing STL
NOW Lebanon
June 28, 2011

The Future bloc issued a statement on Tuesday warning the newly-formed Lebanese cabinet against renouncing the Special Tribunal for Lebanon (STL), which is probing former Prime Minister Rafik Hariri's 2005 assassination.

"[We] warn officials in the cabinet to not renounce national agreements, especially regarding the STL and concerning achieving justice," the bloc said following its weekly meeting.

The statement added that the tribunal is the "eligible body for investigating [Rafik Hariri's] murder and uncovering the perpetrators behind it."

The bloc -- which is not represented in the new cabinet -- reiterated that it will act as "a peaceful and parliamentarian opposition."

"The bloc will not accept [obstructing the government], [but] will account for [mistakes] and will not avenge [any party]," the statement added.

On June 13, PM Najib Mikati announced the formation of a cabinet in which the Iranian-backed Hezbollah and its allies hold a majority.

There are rumors that the STL will indict Hezbollah for the Rafik Hariri murder, a move the party repeatedly warned against.

Lebanon in Wait-and-See Situation over Indictment as STL Remains Mum
Naharnet
June 28, 2011

Lebanon was in a wait-and-see situation on Tuesday after reports that the indictment in ex-Premier Rafik Hariri's assassination would be issued by the international tribunal soon.

While some media reports said that the Lebanese authorities have already received a copy of the indictment, most officials, including Prosecutor Saeed Mirza denied.

"There is no decisive information on the release date of the indictment," Mirza said Monday.

Special Tribunal for Lebanon spokesman Marten Youssef also declined to comment on newspaper reports that the indictment would name five Hizbullah members.

"The STL has no comment to make about the content of the indictment," he said in remarks published Tuesday.

"The integrity of the STL proceedings requires that legal considerations alone determine if and when the tribunal will make any announcement about the completion of the review process," Youssef added.

Sidelining STL Will Draw International Reaction: Geagea
Daily Star
June 28, 2011

Lebanon will have to confront the Arab and international community if the new Cabinet's policy statement ignores the Special Tribunal for Lebanon, Lebanese Forces leader Samir Geagea said, amid rumors that the indictment will be issued soon persisted.

"If anyone decides to sideline the tribunal, Lebanon would have to confront the international and regional community," Geagea said during a ceremony Monday night.

Geagea pointed out that the tribunal, which was set up to investigate the 2005 assassination of former Prime Minister Rafik Hariri, had been established by national consensus, when the Cabinet, which included Hezbollah MPs, voted for it unanimously.

"The tribunal was agreed upon in 2006 and it was on top of the agenda which everyone including Hezbollah agreed on," Geagea said, adding that all subsequent Cabinets had also embraced the tribunal.

The March 14 coalition and the international community, fearing that the new Cabinet will either disavow the tribunal or neglect to mention it in the new policy statement, have voiced their concern over the issue, urging Lebanon to uphold its international obligations.

In 2007, Lebanon ratified U.N. Security Council Resolution 1757 which established the tribunal and made Lebanon responsible for 51 percent of the expenses. The tribunal's indictment, which will reportedly be issued in the next few days, is said to name Hezbollah members over the assassination.

The Hezbollah-led March 8 alliance, who represent the majority in Prime Minister Najib Mikati's new Cabinet, has repeatedly questioned the credibility of the tribunal, describing it as an American-Israeli conspiracy targeting the resistance.

Geagea defended the tribunal against allegations that is politicized, saying: "There are over 30 judges working within the tribunal and any result is destined to be accurate, as these judges come from different countries."

"If there were any negligence or loopholes within the tribunal we'd be the first ones to criticize it because we are the relatives of the martyrs," Geagea said.

In the weeks following the assassination of Hariri, who is the father of Lebanon's previous prime minister and the head of the Future Movement Saad Hariri, multiple March 14 lawmakers were also assassinated.

"This is a chance for those who committed crimes against great men in Lebanon to take responsibilities for their actions," Geagea said. "So, why are we trying to stall it?"

Soueid Says Cabinet Has Duty to Cancel the STL
NOW Lebanon
June 28, 2011

March 14 General Secretariat Coordinator Fares Soueid said on Monday that the newly-formed cabinet has "a basic duty to cancel the Special Tribunal for Lebanon."

"[The March 14 coalition] rejects the 'justice in return for stability' formula," he told MTV station.

"Prime Minister Najib Mikati will not dare to approve a ministerial statement that does not [adhere to] international resolutions," despite Hezbollah's will, Soueid added.

Soueid also said that this cabinet will implement the will of the Syrian regime and Hezbollah Secretary General Sayyed Hassan Nasrallah.

He added that Nasrallah "is stuck within his own community," in a reference to uncovering three spies within Hezbollah.

The March 14 coordinator said that his coalition's opposition will be democratic and peaceful, adding that the opposition will set its own guidelines without any interference

The new Lebanese cabinet -- headed by Mikati -- was formed on June 12 after almost five months of deliberations between the March 8 parties.

Before bringing down Saad Hariri's cabinet in January, Hezbollah had been pressing him to disavow the STL, which is probing the 2005 assassination of former PM Rafik Hariri and likely to implicate members of the Shia group.

Wahhab Says No One Can Promote the STL Indictment
NOW Lebanon
June 28, 2011

The National News Agency quoted on Tuesday Tawhid Movement leader Wiam Wahhab as saying that no one can promote the indictment of the Special Tribunal for Lebanon, which is investigating the 2005 murder of former Prime Minister Rafik Hariri.

"No authority, no matter what it may be, can promote the indictment. For [the indictment] is rejected because it is lying verdict like those who [issue] it and like those who sent it to us and like those who are trying to market it in Lebanon today," said Wahhab.

"Their project will not succeed, otherwise the whole region will turn into a volcano that will blow up in the face of those criminals," he added.

The new Lebanese cabinet -- headed by Prime Minister Najib Mikati -- was formed on June 12 after almost five months of deliberations between the March 8 parties.

Before bringing down Saad Hariri's cabinet in January, Hezbollah had been pressing him to disavow the STL, which is likely to implicate members of the Shia group.

STL 'Suspects' Hezbollah Commander
Daily Star
By Patrick Galey
June 29, 2011

The U.N.-backed court probing the assassination of statesman Rafik Hariri will finalize its indictment next week, and it will contain the name of a Hezbollah commander among others accused of the crime, diplomatic and judicial sources told The Daily Star Tuesday.

Sources familiar with the investigation said that the Special Tribunal for Lebanon will provide State Prosecutor Saeed Mirza with a sealed indictment at the start of next month, which may come before the new government finalizes a policy statement that could omit direct reference to the court.

"We expect the indictment on either July 3 or 4," said one source. "Mirza has to do something [with the indictment], but the next stage is difficult."

It added that the name of a senior Hezbollah military commander who is believed to be residing in Lebanon would be contained in the indictment.

State Prosecutor Saeed Mirza confirmed to The Daily Star that he would announce publicly when an indictment had been received but demurred on what would happen next.

"I cannot say what I will do," Mirza said. "I do not know [when the indictment will be released]: they have been saying that they will issue it for years."

Hezbollah Secretary General Sayyed Hasan Nasrallah has slammed the STL, labeling it an "Israeli project" and warned to "cut the hand" of anyone targeting his organization in relation to Hariri's murder. Nasrallah acknowledged that the names of individuals belonging to the party would likely feature in an indictment.

The STL has maintained that it will seek to indict individuals, not political entities. But the court's reported intent to accuse a senior party official of carrying out the assassination is likely to put Lebanon's judiciary in a bind, particularly if the Cabinet has not formed a coherent policy statement by the time the indictment lands.

"According to the procedures, the STL will inform judicial authorities to arrest and hand in the names listed in the indictment," a judicial source told The Daily Star.

"However, judicial authorities will not be able to act if the indictment includes individuals from Hezbollah.

"Under the current circumstances and without a Cabinet [policy] statement, judicial authorities will be in some kind of limbo," the source added.

Lebanon signed an agreement with the U.N. in 2007 to cooperate with the international court, although that commitment has been questioned following the formation of a March 8 government in Beirut.

Prime Minister Najib Mikati has said that the new administration would maintain its international commitments on the proviso that they do not destabilize civil peace.

The judicial source said that The Hague was working on a purely legal level and it was therefore unlikely that individuals such as STL Prosecutor Daniel Bellemare and pre-trial Judge Daniel Fransen would consider the fraught condition of Lebanon before finalizing an indictment.

"The situation in Lebanon will not change the stance of the STL. For whatever reason the judicial authorities fail to apprehend the suspects, the STL will consider that Lebanon has failed to implement its duties toward the tribunal," the source said.

"In case the indictment is issued and Lebanon fails to cooperate with the tribunal, all the named suspects will be tried in absentia."

The court's statute dictates that STL President Antonio Cassese must be satisfied that countries receiving the indictment had exerted "sufficient effort" to apprehend accused individuals before going public and naming suspects, should the indictment be handed down in sealed form, as is expected.

Former Prime Minister Hariri was killed in a massive car bomb on Feb. 14, 2005, as his motorcade sped through Downtown Beirut. The act brought about popular demonstrations leading to Syrian withdrawal from Lebanon after nearly three decades. Twenty-two others were killed in the attack.

Interior Minister Confirms Hariri Indictments
Al Jazeera
July 1, 2011

Four suspects were named in the UN-backed Special Tribunal for London (STL) investigating the 2005 murder of Rafiq Hariri, the former Lebanese prime minister, Marwan Charbel, the country's interior minister, has said.

Said Mirza, Lebanon's prosecutor-general, had issued arrest warrants for Mustafa Badreddine, Salim Ayyash, Assad Sabra and Hussein Anaissi, Charbel told the AFP news agency on Friday.

The whereabouts of the suspects, who have been described as senior members of the Hezbollah movement, are unknown.

Lebanon remained calm and stable a day after the indictments were issued.

"So far things have been very quiet," said Al Jazeera's Charles Stratford, reporting from Beirut, on Friday.

"There has been drips of reaction coming through from some officials but nothing concrete yet."

Media reports had spoken of a possible backlash after the indictments.

Badreddine, one of the suspects, is the brother-in-law of top Hezbollah operative Imad Mughniyeh, who died in a 2008 bombing in Damascus, the Syrian capital.

He is suspected of having masterminded the February 14, 2005 seaside bombing that killed Hariri and 22 others.

Ayyash, another senior party official who holds US citizenship, allegedly carried out the attack.

Sabra and Anaissi allegedly co-ordinated with Ahmad Abu Adas, a Palestinian who contacted Al Jazeera television following the Hariri assassination to claim responsibility for the bombing.

Charbel said a meeting among all concerned security services was planned on Saturday to co-ordinate search operations for the suspects.

Calls for stability

Hillary Clinton, the US secretary of state, praised the STL for its decision.

In a statement on Friday she said: "We understand that this is an emotional and significant period for all involved, and we call on all parties to promote calm and continue to respect the Special Tribunal as it carries out its duties in a professional and apolitical manner."

Clinton called "on the government of Lebanon to continue to meet its obligations under international law to support the Special Tribunal".

Walid Jumblatt, a Druze leader and influential MP, said Lebanon's stability was of critical importance.

"I call upon all political powers to overcome minor situations for the national interests on top of the national agenda; get rid of any elements that might cause rift and tension and to leave the government, political powers and state agencies to do their job," he said.

Hezbollah, which has three members in the current parliament, forced the collapse of Saad Hariri's, Rafiq's son, government in January after he refused to stop co-operating with the STL.

The group and its allies resigned from Hariri's unity government just days before the tribunal prosecutor filed his petition for the indictments to a pre-trial judge.

The tribunal was set up in The Hague in 2009 by the UN to try those alleged to have carried out the deadly bomb attack.

Hisham Jaber, a retired Lebanese army general, told Al Jazeera from Beirut that he did not think those named in the indictments would be arrested.

"Hezbollah denied its relation with this crime since the beginning," said Jaber, without speculating on who would be named.

"Those people, whether they are members of Hezbollah or close to Hezbollah, I don't think the Lebanese authority has the ability to arrest them if they are still in Lebanon.

"I think this mandate will stay open until those people will deliver themselves to the criminal [court]."

Fares Soueid, a leading member of Saad Hariri's Western-backed March 14 coalition, told the AFP news agency: "This is a big day for Lebanon ... We have been waiting for this for six years. We hope that justice will be served and that Lebanon will be able to look toward a more stable future."

The indictments have been twice amended while the pre-trial judge assessed whether there was enough evidence to proceed with a trial.

'Responsibly and realistically'

Saad Hariri's successor, Najib Mikati, who was appointed with the blessing of Hezbollah, said the government would deal with the indictments "responsibly and realistically".

"Today we are facing a new reality that we must be aware of ... bearing in mind that these are accusations and not verdicts," Mikati said at a news conference. "All suspects are innocent until proven guilty."

Hezbollah has said the international court is a tool of the United States and Israel and wants Lebanon to halt all co-operation with it, including withdrawing Lebanese judges and ending its share of funding for the court.

Lebanon now has 30 days to serve out the arrest warrants. If the suspects are not arrested within that period, the tribunal will then make public the indictment and summon the suspects to appear before the court.

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Bangladesh International Crimes Tribunal

Trial of Two War Criminals Set to Begin
Gulf Times
June 20, 2011

Trial of two war criminals, who had been accused of committing crimes against humanity during the war of liberation in 1971, will begin in Dhaka from July. The rest of the accused will go on trial by August.

Law, Justice and Parliamentary Affairs Minister Shafique Ahmed said yesterday this will be the first trial of politicians who had allegedly committed murders, rapes and other crimes during the conflict.

"We would be able to start trial of the war criminals from next month following progress made by the investigation and the prosecution teams. They have confirmed the names of the two persons," he told reporters after a meeting of the steering committee on the trial of war criminals at the secretariat.

The meeting, chaired by Finance Minister A M A Muhith, was attended among others by Local Government and Rural Development Minister Syed Ashraful Islam, Planning Minister A K Khandker, Home Minister Sahara Khatun, State Minister for Home Shamsul Haque Tuku, and State Minister for Law Qamrul Islam.

Without disclosing the names of the two accused, the law minister said: "You would know their names when the trial would begin."

He said the trial of other detained accused would start by August in phases. "We have provided all necessary support to the tribunal for holding smooth trial of the war criminals. If needed, further support to the investigation and prosecution teams would be given," the law minister said.

The finance minister trashed a newspaper report, which alleged that the war crimes tribunal was returning funds allocated for smooth proceedings of investigations and trial.

"Once there was a crisis and lack of co-ordination in this regard. It takes time to procure anything following the government rules and regulation. Now those problems have been ironed out," the minister said.

He hoped that the tribunal would be able to go ahead with the trial of war criminals from next month.

Politicians already arrested on charges of 1971 war crimes are top Jamaat-e-Islami leaders Matiur Rahman Nizami, Ali Ahsan Mujaheed, Qamaruzzaman, Abdul Kader Mollah, Delwar Hossain Sayeedi, Bangladesh Nationalist Party leaders Salahuddin Quader Chowdhury, MP and Abdul Alim. Of them, Alim was freed on bail because of old age.

War Tribunal to Get More Clout
The Daily Star
By Shakhawat Liton
June 20, 2011

A process is underway to bring a significant change to the country's constitution so the legality of trials of war crime suspects, who were not part of any armed force or auxiliary force in 1971, cannot be challenged in any court.

The law ministry is drafting a constitutional amendment bill, including this change, to be placed in the House in line with recommendations made by the parliamentary special committee, Law Minister Shafique Ahmed told The Daily Star on Saturday.

"If the specific change is brought to the constitution, the individuals who are now facing trials on charges of war crimes cannot challenge the legality of the trials.

The trials will get constitutional protection," the law minister said.

The parliamentary special committee on constitutional amendment in its report placed in the House on June 8 recommended for an amendment to article 47(3) of the constitution to avert legal difficulties in trying individuals or groups of individuals on charges of war crimes.

The existing constitutional provision provides the government with unlimited power to try war criminals who are members of any armed or defense or auxiliary force, or who are prisoners of war for genocide, crimes against humanity, war crimes, and other crimes under international law.

The first amendment to the constitution in 1973 also provides the government with the authority to detain, prosecute, and punish them the way it wants by enacting laws. And those facing trials on charges of war crimes cannot enjoy protection of law, and protection in respect of trial and punishment, and cannot seek remedy from the Supreme Court for enforcement of fundamental rights as enshrined in the constitution.

Legal experts said the government of Bangabandhu in 1973 amended the constitution for the first time to ensure trials of war criminals without any legal hurdle.

Former attorney general Mahmudul Islam in his book "Constitutional Law of Bangladesh" said in 1973 the Constitution (First Amendment) Act was passed depriving war criminals of fundamental rights.

Immediately after the first amendment to the constitution, the International Crimes (Tribunal) Act, 1973 was enacted providing constitutional protection to detention, prosecution, and punishment of persons charged with war crimes.

But the original law had provisions for trying only members of armed forces and their auxiliary forces.

The government amended the International Crimes (Tribunal) Act in July 2009 incorporating provisions that allow trials of individuals or groups of individuals or organizations, who were not part of an armed force or its auxiliary force, on charges of war crimes committed in 1971.

But this addition was not covered by the constitutional protection, meaning individuals or groups of individuals or organizations who are accused of war crimes but were not members of armed forces or their auxiliary forces in 1971, may now challenge the legality of their trials.

Some legal experts voiced concerns over the fate of the ongoing war crime trial process because of the lack of constitutional protection for the trials of such suspects.

The Awami League-led government formed the war crimes tribunal in March 2010 under the amended International Crimes Tribunal Act for trials of those accused of genocide, and crimes against humanity and peace during the country's liberation war in 1971.

Considering the situation, the parliamentary special committee on constitutional amendment recommended changes in article 47 (3) of the constitution, so the war crime trials of individuals or groups of individuals, who were not members of armed forces or auxiliary forces, also get constitutional protection.

A senior official who worked closely with the special committee said once the specific change is made to the constitution, an individual being tried for war crimes cannot move to the Supreme Court seeking remedy on grounds of violation of his or her fundamental rights enshrined in the constitution.

The law minister said his ministry is working to transform the special committee's recommendation into a draft bill.

He said they are trying to place the draft bill before the cabinet today for its consideration. On receiving nod from the cabinet, the bill will be placed in the parliament during the current session, he added.

Suranjit Slams Shafique Over Trial Disclosure
Bangladesh News 24
June 20, 2011

A senior Awami League leader has said no minister has the legal jurisdiction to declare when the trial of suspected war criminals will begin.

The ruling party's advisory council member Suranjit Sengupta's barb was apparently aimed at the law minister Shafique Ahmed for his remarks the trial would begin in July.

At the Dhaka Reporters Unity on Monday, Suranjit, also the chief of parliamentary watchdog on law ministry, slammed the government for its 'unpardonable' failure to begin the trial even after two and a half years into its term.

The discussion, organised by Bangabandhu Sangskritik Jote, on militancy and communalism-free Bangladesh was held to mark the 100th birth anniversary of Sufia Kamal.

About the announcement, he said: "The government has already formed the tribunal, prosecution and the investigating agency. It's the tribunal who will decide about the beginning of the trial.

"No minister has the legal power to say so, not even us," he observed.

Law minister Shafique on Sunday said, "The progress that the investigators and prosecutors have shown lead me to the belief that the trial could begin next month. They have confirmed about beginning of the trial of two.

"The rest may face trial in August," the technocrat minister added.

To date, Jamaat-e-Islami chief Matiur Rahman Nizami, secretary-general Ali Ahsan Mohammad Mojaheed, assistant secretaries-general Muhammad Abdul Quader Molla and Muhammad Kamaruzzaman, executive council member Delwar Hossain Sayedee, BNP leaders Salahuddin Quader Chowdhury and Abdul Alim, a minister of Ziaur Rahman's cabinet, have been arrested on war crimes charges.

Suranjit said only the tribunal and prosecution team members should speak to the media. "Confusions may be created if others do that."

Urging the government to begin the trial soon, he said: "People will lose patience if the trial don't start by this year."

Charter Amendment

The senior Awami League leader hoped the report of the special parliamentary committee on constitution review would be placed in the cabinet shortly.

"It'll be tabled in parliament this session and the amendments will be inserted."

The report containing 51 recommendations was placed in the legislative assembly on June 8 and is now with the law ministry for scrutiny.

Suranjit, co-chair of the panel, said that the review was necessary as the court had annulled fifth, seventh and 13th amendments.

CG Issue

Suranjit urged the BNP not to create anarchy over the caretaker government issue. "Discussion is not possible outside parliament. So the opposition has to come to parliament."

Pointing at the opposition leader Khaleda Zia, he said: "She has suddenly liked some parts of the 13th amendment. Then you've to clarify in parliament if you accept the verdicts in fifth, seventh and 13th amendment."

The BNP chief on June 16 said ruled out discussion with the government on the caretaker government issue.

"The provision of holding national elections under caretaker government must be retained. No new formula is required. There is no scope for discussion either."

Awami League general secretary Syed Ashraful Islam on the next day though urged Khaleda for talks--anytime, anywhere. On June 18, he said the government action on the issue would be within the periphery of the court verdict.

The Supreme Court on May 10 had repealed the 13th Amendment to the constitution, but said the next two general elections could be held under unelected rulers.

The special parliamentary committee, however, proposed to scrap the system.

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War Crimes Investigation in Burma

Suu Kyi Asks US to Back War Crimes Probe
AFP
June 23, 2011

Burma's opposition icon Aung San Suu Kyi on Wednesday urged US lawmakers to push for a UN-backed probe into human rights in her country as she warned of a long and difficult road to democracy.

Suu Kyi, who was released in November after spending most of the past two decades under house arrest, spoke on a video in a first-ever message to the US Congress, a stronghold of support for the Nobel Peace Prize winner.

She asked lawmakers to do "whatever you can" to support the work of the UN special rapporteur on human rights in Burma and assured that a so-called commission of inquiry would not be a tribunal.

"It is simply a commission of inquiry to find out what human rights violations have taken place and what we can do to ensure that such violations do not take place in the future," she told a House of Representatives hearing.

Suu Kyi, whose National League for Democracy won 1990 elections but was never allowed to take power, warned it will take time to reform Burma.

"It is going to be a long road; it has already been a long road and a difficult one, and no doubt the road ahead will have its difficulties as well," she said.

But she added: "With the help and support of true friends, I'm sure we will be able to tread the path of democracy, not easily and perhaps not as quickly as we would like, but surely and steadily."

The United States has publicly supported a UN-led probe -- a longstanding demand of activists. But it has done little to make it a reality, worrying its efforts would be futile so long as Asian countries -- particularly China -- are opposed.

UN-led commissions of inquiry elsewhere in the world have led to charges and prosecution, with Sudan's President Omar al-Bashir risking arrest if he travels to countries that recognize the International Criminal Court.

Human rights groups say that Burma has a record of severe human rights abuses including extrajudicial killings, custodial deaths, torture and frequent rape of displaced women from minority groups.

Recent deadly clashes in far-northern Kachin state have triggered an exodus of refugees toward the border with China.

Suu Kyi called on Burma's rulers to free some 2,000 other prisoners which rights groups say are detained for political reasons and often held in poor conditions.

"Why are they still in prison if this government is really intent on making good progress toward democracy? If it is sincere in its claims that it wishes to bring democracy to Burma, there is no need for any prisoners of conscience to exist in this country," she said.

Burma held elections in November 2010 which the regime said was a step toward democracy, with the junta later handing over to nominally civilian rulers. But many outside observers say that the changes are purely cosmetic.

A recent joint study by Physicians for Human Rights and Johns Hopkins University found that in western Chin state, 91.7 percent of households had at least one family member who had been forced to work for the military in the past year.

One area of Chin state with particularly high rates of child conscription and sexual assault was under the command of Colonel Zaw Min Oo, who is now in parliament, said Chris Beyrer of the Johns Hopkins Bloomberg School of Public Health.

"In post-election Burma, a military commander whose forces violently repressed the Chin people now represents those same households and communities in the new parliament. That is not change, it is impunity," Beyrer told the committee.

"The US has recently shown swift and effective leadership in diplomacy on calling for investigations into the killing of civilians by the Kadhafi regime in Libya. Why not Burma, where the evidence is overwhelming?" he said.

President Barack Obama's administration in 2009 launched a dialogue with Burma, concluding that the previous Western policy of trying to isolate the government had failed.

The administration has repeatedly said it plans to keep pursuing diplomacy despite deep disappointment over the results.

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NORTH AND SOUTH AMERICA

United States

Iran Slams U.S. at Conference on Fighting Terrorism
Los Angeles Times
By Ramin Mostaghim and Alexandra Sandels
June 26, 2011

A battered Peugeot sedan greeted visitors Saturday to a conference hall in north Tehran.

"Professor Massoud Ali Mohammadi, martyred in front of his house," explained an accompanying poster. It was a reference to the mysterious assassination last year of the Iranian physicist, killed when a bomb exploded near his car in Tehran. Iranian authorities have blamed the West for the killing.

The Peugeot was the symbolic scene-setter for a two-day conference in the Iranian capital on fighting terrorism. According to the Iranian media, officials from more than 60 countries and several heads of state flew in for the talks - among them Sudanese President Omar Hassan Ahmed Bashir, who is wanted by the International Criminal Court on war crimes charges.

The event was heavy on U.S.-bashing, generally reflecting Tehran's views about Washington's policy in the region.

In a message to the conference, Iranian supreme leader Ayatollah Ali Khamenei lashed out at the U.S. for drone strikes in Afghanistan and Pakistan. The attacks, he said, have "repeatedly" turned "wedding parties into mourning ceremonies." He echoed the official Iranian line that the U.S. and its allies are hypocrites, employing terrorist tactics that kill civilians while condemning others as terrorists.

"The United States, Britain and some Western governments, with a black record in terrorist behavior, have now added to their rhetoric the claim of fighting terrorism," Khamenei was quoted as saying by the semiofficial Fars News Agency.

Later, Khamenei warned visiting Afghan President Hamid Karzai that the United States had no intention of leaving Afghanistan. "Real security will not be established as long as American troops are in Afghanistan," state TV quoted him as saying. On Wednesday, President Obama announced that 33,000 U.S. troops would be pulled out of the country by the end of next summer.

At the forum, the official Islamic Republic News Agency said, Iraqi President Jalal Talabani revealed that Iran and Iraq had formed a joint plan with the International Committee of the Red Cross to shut down Iraq's Camp Ashraf, which is home to thousands of opponents of the Iranian regime. Tehran has pressured Baghdad to hand over members of the militant group, despite protests from Iranian dissident groups and others that the camp residents could face reprisals in Iran.

An Iranian opposition organization, the National Council of Resistance of Iran, has urged the Red Cross to disassociate itself from the plan, which it says is "in direct violation of international law."

Sudanese President Bashir made a quick appearance at the podium, slamming Israel and the United States for "supporting terrorism," before jetting off on a trip to China, according to a journalist in his entourage.

Latest Guantánamo Prison Camp Suicide was 'Indefinite Detainee'
Miami Herald
By Carol Rosenberg
June 28, 2011

An Afghan man who was found hanging from a bedsheet at Guantánamo last month was held by the Pentagon as an "indefinite detainee" - an Obama administration designation originally conferred on 48 captives at the prison camps in Cuba.

Defense Department officials have not released the list of so-called indefinite detainees. Nor have they notified the men of their status as ineligible for either trial or release among the 171 captives currently held in Guantánamo.

But a Pentagon spokesman, Dave Oten, confirmed this week that the May 18 death of a captive known to his lawyers as Hajji Nassim and to the Defense Department as Inayatullah lowered the indefinite detainee tally.

"It's a sad case, a very sad case," said his Miami attorney Paul Rashkind on Tuesday. A federal public defender, Rashkind had been on the Afghan's case for about a year. He said, though he had never been told of his client's status as an indefinite detainee, he might have been able to persuade the government otherwise.

"We were hopeful that we would be able to complete a psychiatric profile of him and present that information to the government in the hopes they would release him," said Rashkind.

The Pentagon had claimed that Inayatullah was an Al Qaida emir in Iran who planned and directed the group's terror operations. He got to Guantánamo in 2007, one of the last detainees sent there. Rashkind countered that the captive was never known as Inayatullah anywhere but in Guantánamo, never had a role in Al Qaida and was in fact named Hajji Nassim and ran a cellphone shop in Iran near the Afghan border.

Guards discovered him early May 18 dangling from bed linen in a prison recreation yard in what the Southern Command in Miami described as a "suspected suicide." Rashkind said his client had a history of psychological problems and spent long stretches in Guantánamo's psychiatric ward.

The lawyer had several times obtained permission from administration officials to bring a private, civilian psychiatrist to the base to help with the case of the 37-year-old captive. Rashkind said had no doubts the death was a suicide.

In February, the military said Awal Gul, 48, another Afghan whose status was indefinite detention, collapsed and died of an apparent heart attack after working out on an exercise machine in a Camp 6 recreation yard. He had been held as a one-time Taliban official.

The remains of both men were repatriated within in days of their deaths for burial in Afghanistan. At the Southern Command, which supervises aspects of the detention center, Army Lt. Col. Darryl Wright said both deaths this year were still under investigation.

Senate Panel Authorizes Libya Operations, With Conditions
National Journal
By Chris Strohm
June 28, 2011

The Senate Foreign Relations Committee approved a resolution on Tuesday authorizing U.S. military operations in Libya with limitations on President Obama's authority, including a legally binding prohibition on the use of U.S. ground troops for any activities.

The resolution was approved 14-5, with all Democrats voting for it.

Notably, however, the panel rejected an effort to cut off funding for Predator drone strikes and other combat-related activities - essentially giving Obama what he needs to continue U.S. military support of the NATO-led mission to defeat the forces of strongman Muammar el-Qaddafi.

The Foreign Relations panel debated nearly a dozen amendments to the underlying resolution.

The proposal that would have cut off funding - which was the most controversial amendment considered by the committee -- failed by a 5-14 vote, with all Democrats on the panel voting against it. The measure would have restricted funding to allow only for activities involving intelligence, refueling, surveillance, search-and-rescue assistance, and planning support for NATO operations. The language was similar to that of a resolution that House lawmakers rejected last week.

But the panel approved by voice vote a legally binding amendment that prohibits funding to deploy U.S. troops on the ground in Libya, including for participation in stabilization and peacekeeping operations. The amendment also prohibits U.S. funding for contractors to conduct operations in Libya.

In a slap on the Obama administration, the panel also approved by voice vote an amendment that states that U.S. operations in Libya constitute hostilities under the 1973 War Powers Resolution and, therefore, require congressional authorization. The White House has argued that Libyan operations do not rise to level of hostilities under the War Powers Resolution.

The underlying resolution is expected to soon be voted on by the full Senate.

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TOPICS

Terrorism

Tholut Faces Weapons Counts, Again
Jakarta Globe
By Mohd Adhe Nhakti
June 21, 2011

Key terror suspect Abu Tholut stood trial on Monday for his alleged role in the establishment of a militant training camp in Aceh, where authorities believe attacks on national leaders were being prepared.

Prosecutors charged the 50-year-old with six counts under the Anti-Terror Law. The most serious charge — possession of illegal firearms — carries the death sentence.

Prosecutor Bambang Suharjadi told the West Jakarta District Court that the defendant helped set up the camp at the request of hard-line cleric Abu Bakar Bashir, who last week was sentenced to 15 years in jail over the same camp.

In 2009, several key aides of Bashir asked the defendant to take charge of a planned paramilitary camp in Aceh and he agreed, Tholut's indictment read.

He then allegedly conducted a survey at the location financed by Bashir and acquired several guns for training purposes. Later that year, Tholut was said to have traveled to Poso, Central Sulawesi, to help set up another paramilitary training camp.

"In February 2010, the defendant was invited by Abu Bakar Bashir for a meeting at the Jakarta office of the [radical group] Jamaah Ansharut Tauhid and he was informed that the paramilitary training was under way and shown video footage of the related activities," the prosecutor said.

According to the prosecution, Tholut was handed Rp 70 million ($8,100) by Haris Amir Falah, the head of JAT's Jakarta branch, and went to Aceh to deliver the money to the camp.

However, upon arrival in Medan, North Sumatra, he learned about police raids on the camp and many arrests.

Tholut then sought refuge in Depok, West Java, and Tegal, Central Java, before police arrested him in Kudus, in the latter province, last December.

Earlier, police beliaeved Tholut was a key leader of shadowy regional terror group Jemaah Islamiyah, as he was said to have spent years in Afghanistan and the Philippines waging jihad.

He was convicted in 2004 for illegal possession of firearms and explosives and was sentenced to seven years in prison. But he was released on parole in 2007 after several remissions.

Four men are also being tried by the West Jakarta District Court for helping Tholut hide from authorities.

In a separate hearing, two JAT members were convicted by the same court on Monday for illegal possession of firearms and explosives. Abdul Gofur was sentenced to six years in jail and Pahrur Ruji Tanjung aka Bayu to five and a half years.

Top Court to Rule on Convicted Terrorist's Appeal
CTV News
June 29, 2011

The country's highest court will decide Thursday whether it wants to wade into politically explosive territory, and attempt to answer that question.

The Supreme Court of Canada will rule on whether it will hear the appeal of Momin Khawaja, who was convicted in 2008 of five terrorism charges and sentenced in 2008 to 10 1/2 years in prison. Two years later, Ontario's highest court increased his sentence to life in prison with no chance of parole for 10 years.

For Khawaja, the first person ever charged under Canada's anti-terror laws, the Supreme Court's decision will mean he either reaches the end of his legal road, or is about to embark on a new journey.

It could also be the first step in charting new legal territory on the charter implications of Canada's anti-terror law, which was enacted in response to the 9-11 attacks of 2001.

Khawaja's lawyer is asking the high court to rule on the constitutionality of the legal definition of "terrorist activity."

The Supreme Court will also consider the case of two other men, wanted in the United States on terrorism charges relating to the banned Tamil Tigers organization.

Lawyers for Suresh Sriskandarajah and Piratheepan Nadarajah have argued that because the Criminal Code definition required the terrorist conduct to be performed for a political, religious or ideological reason, it infringed the charter right to express religious beliefs and political opinions.

That's the same argument that Khawaja's defence has mounted. But last December, the Court of Appeal for Ontario rejected the argument put forth by Sriskandarajah, Nadarajah and Khawaja that the definition of "terrorist activity" in the Criminal Code is unconstitutional.

If the Supreme Court grants leave in Khawaja's case, it would also open the door for his lawyer to try to get his sentence reduced, after it was significantly increased on appeal.

Khawaja was born in Ottawa and worked as a software developer before he was arrested in 2004. He was convicted for training at a remote camp in Pakistan, providing cash to a group of British extremists, and offering them lodging and other assistance.

He was also convicted of two Criminal Code offences related to building a remote-control device to set off explosions. But the prosecution failed to prove Khawaja knew the detonator was to be used to detonate a 600-kilogram fertilizer bomb in downtown London.

The Court of Appeal for Ontario strongly rejected the challenge brought by Khawaja that the Criminal Code definition of "terrorist activity" constituted a charter violation.

It said an "unmistakable message" must be sent that terrorism offences would be severely punished. The justices on the appeal court also concluded that Khawaja's commitment to jihad runs deep, and that there was no evidence he could be rehabilitated.

"Absent convincing evidence that he no longer subscribed to violent jihad at the time of sentencing ... the trial judge ought to have found that the appellant continues to pose a serious threat to society and is likely to do so for the indefinite future," the appeal court ruled.

"There was no reason to conclude that the appellant would not engage in terrorist activity again if given the opportunity to do so."

Terrorism Arrests Halve
The Telegraph
By Duncan Gardham
June 30, 2011

There were 125 terrorism arrests compared with 209 in the previous twelve months, according to the Home Office statistics.

Police officers are increasingly "fronting up" terrorism suspects on the instructions of MI5 in order to scare them into abandoning their plots.

The development of an "overt" counter-terrorism policing capability represents a "profound change in direction" which is offering "new ways of countering the risks and threats posed by violent extremists" according to a recent report for the Association of Chief Police Officers.

However, those arrested and charged included Rajib Karim, a British Airways worker later convicted of planning to launch an attack on a trans-Atlantic aircraft, and nine men from Stoke-on-Trent, Cardiff and London, allegedly planning attacks on iconic sites in the capital.

A total of 21 people were charged with terrorism related offences of whom two were convicted and 16 were still awaiting prosecution. Four others charged the year before were also awaiting trial.

No individuals were held in pre-charge detention for longer than 14 days and 62 per cent of those arrested were dealt with within 48 hours.

Twenty-eight terrorism trials took place last year leading to the conviction of 64 per cent of defendants. Twelve of the 18 defendants pleaded guilty.

The trials included Roshonara Choudry who stabbed the MP Stephen Timms and the last of the men accused of plotting to blow up trans-Atlantic aircraft using homemade liquid bombs in soft drinks bottles.

Custodial sentences were given to 17 of the 18 offenders, including four life sentences, while the remaining defendant was given a community sentence.

In total there have been 1,945 terrorism arrests since 11 September 2001 and 241 people have been convicted of terrorism related offences.

There were 123 people in prison for terrorist related offences at December 31 2010, of which 22 were classified as domestic extremists.

In the first three quarters of 2010-11, 29 prisoners held under terrorism-related offences were discharged from prison.

There were 23,882 searches under section 44 random stop and search powers, an 84 per cent fall over the previous twelve months.

The searches dropped to 30 in the third quarter at the end of last year, compared with 22,092 during the same quarter of 2009, after use of the powers was suspended by the Home Secretary. Of those, 19 per cent classified themselves as Asian or Asian British.

The Metropolitan Police made 995 stops and searches under section 43 of the Terrorism Act 2000, which requires reasonable suspicion. Of those 30 per cent classified themselves as Asian or Asian British.

The section 44 stops led to a total of 163 arrests with one arrest identified as terrorism related, leading to a caution for a non-terrorism related offence.

24 Piracy Suspects Handed Over to Country
Nairobi Star
By Maureen Mudi
June 20, 2011

Some 24 suspected pirates arrested by the Danish Navy in May have been handed over to the Kenyan government to face prosecution. This is the highest number of piracy suspects arrested by naval forces patrolling the Indian Ocean.

Security sources confirmed that four of them had been shot dead and about eight injured during a fire exchange with the navy men. The Danish naval ship docked at around 9.30am.

Security was beefed up and senior police officers and representatives from the Attorney General's office came to receive the suspects. But by 5pm yesterday, the delegation was still in the ship inspecting the exhibits, taking statements and medical records of the suspects.

Coast police boss Aggrey Adoli said they were holding a meeting with the Navy officials before receiving the suspects who would be detained at the Port police station. The security officials arrived at 2.45pm and the press was barred from the scene, until all verification was agreed upon. Even security vehicles used by the police were being screened before being allowed at the scene.

A source said, "The team may take longer since they have to ensure they take the statements, medical records, exhibits, among other details."

The suspects are accused of attacking FV Haria, an Iranian fishing vessel, last October and held the crew hostage after realizing the vessel's owners may not be able to raise ransom. They used the ship to take supplies including fresh water and oil from Haradhare before embarking on hijacking missions.

They also used the vessel to attack others in the deep seas and were in May this year arrested by the Danish Navy, after they shot at the crew and an exchange of fire ensued, leading to the deaths and injuries. The fishermen had been in the sea for 40 days before they were hijacked by the suspected pirates. They were however released and left to return to their homes before the naval team began their voyage to Kenya.

The naval team took long to dock in the Kenyan waters as processing of a request to have the suspects received by the Kenyan authorities took time.

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Piracy

24 Piracy Suspects Remanded in Police Cell
Nairobi Star
By Maureen Mudi
June 21, 2011

The 24 piracy suspects arrested by the Danish navy were yesterday arraigned at a Mombasa court but the prosecution sought more time to have them in custody. Dressed in khaki overalls and some in black T-shirts, the suspects had visible injuries including broken limbs. Some of them had to be wheeled in court on wheelchairs.

Prosecutor Catherine Mwaniki sought two more days to detain them at a port police station saying the AG's office needed to ensure that proper investigations are carried out before they are charged.

Investigating officer Millicent Ouko said in an affidavit that the police had not completed investigations within the stipulated 24 hours because some of the suspects required translators while others needed treatment.

It was claimed that four of the suspects died during a shootout with the Danish navy in the high sea and eight others suffered serious injuries. Most of the suspects in court had bandages.

Ouko told the court that the AG's office required an extension of pre-charge detention since placing them in prison custody will make it difficult for police to complete investigations.

The suspects were arrested by navy officers of the Danish Royal Warship Esbern Snare on suspicion of piracy and handed over to Kenyan authorities.

Somalia Wants Anti-Piracy Court Within its Territory
Deutsche Presse-Agentur
June 21, 2011

The transitional government in Somalia prefers the establishment of an anti-piracy court within the country, rather than in another state, the top UN legal counsel said Tuesday.

Patricia O'Brien told a UN Security Council meeting on the prosecution of piracy acts that an extraterritorial anti-piracy court is not the preferred solution for Mogadishu, even though some countries like Tanzania stands ready to host such a court.

O'Brien said that, if the 15-nation council is to decide upon a non-Somali court, the UN could follow the example of a special court set up to try the case of the Lockerbie bombing of 1988.

There, it was decided to set up a court in Scotland, over whose territory the terrorist bombing of Pan Am Flight 103 occurred, instead of in Libya, from where the accused hailed, or in the United States, the home of most of the plaintiffs.

More than 220 people, most of them Americans, died in that bombing.The council was discussing proposals to set up anti-piracy courts, to be funded by the UN, in Somalia's semi-autonomous regions in Somaliland and Puntland. Those courts have already prosecuted 290 cases of piracy under their laws.

A UN study said it would cost more than 24 million dollars over a three-year period to support courts in Somalia, which is detaining the largest number of pirates and already have some jurisdiction over crimes of piracy.

The study said the UN Development Program and the UN Drugs and Crimes Office in Vienna would bear the costs of trying pirates in Somalia.

There are currently a total of 1,011 pirates in detention in 20 countries. Many of them have been convicted in courts in those countries under their own legal systems, the study said.

Kenya is holding 119 pirates and has convicted 50; the Netherlands is holding 29 and convicted five.

The United States detains 28 and has convicted eight, Tanzania detains 12 and has convicted eight while Yemen has arrested 120 and convicted all of them. Oman arrested 12 and also convicted them.

Pirates under detention but not yet tried are in Germany (10), India (118), France (15), Japan (four) and Maldives (34).

But the largest number of detained pirates so far are in Somalia: Puntland has 290 and convicted about 240; Somaliland has 94 and convicted 68 while South Central detains 18 pirates.

Germany Calls for Prosecution of Somali Pirates
IANS
June 22, 2011

Somali pirates must be prosecuted and imprisoned, and "adequate structures" need to be established to reach that goal, the deputy permanent representative of Germany to the United Nations has said.

Miguel Berger said this while addressing a Security Council meeting on piracy off the coast of Somalia, Xinhua reported.

The German ambassador said his country wants to assist the Somali justice system to prosecute piracy suspects in accordance with international standards.

He called for neighboring countries to contribute to the efforts to prosecute piracy suspects.

Pirates have recently intensified their activities in the Indian Ocean and Gulf of Aden.

New Anti-Piracy Law Ready for Parliament
IANS
June 28, 2011

With the Indian Navy nabbing over 120 Somali pirates in the last six months, India has prepared a draft anti-piracy law that is likely to be tabled in the monsoon session of parliament beginning August 1, an official said.

The draft legislation, prepared in consultation with all the maritime stakeholders, including the navy and the coast guard, is expected the plug the gaps in the Indian legal system and criminal laws that were found to be inadequate to deal with the sea brigands.

"The draft law is ready and it has gone to the law ministry for final vetting before it goes to parliament. It is likely to be taken up for passing in the monsoon session of parliament," a defense ministry official told IANS here Tuesday.

The draft law clearly defines what actions constitute piracy and who would be called a pirate, apart from listing out the legal framework for apprehending them, be it in Indian or international waters, and for prosecuting them in Indian courts, the official said.

Currently, the Indian Penal Code and the British-era Admiralty Act deal with piracy-related offences. These, however, have not been found to be adequate for dealing with pirates apprehended in international waters. This apart, though India has ratified the UN Convention on Laws of the Seas, it needs to enact a law to bring it into force. The proposed legislation deals with these inadequacies.

"The draft legislation also prescribes punishment for different acts that constitute piracy under the law. But details of the punishment is not yet final, as it is now under scrutiny for inconsistencies or otherwise with the law ministry," the official said.

The draft legislation has been prepared after Indian Navy began apprehending the pirates in the Arabian Sea and off-loaded them in Mumbai to remain under police custody to face prosecution.

On nearly a dozen occasions since October 2008 when India joined the anti-piracy operations in the Gulf of Aden, its navy has had to empty the fuel on pirate's speed boats and let them to drift in the high seas, as nabbing them would raise questions as to where they would be prosecuted and which foreign port would take them into custody.

All this, however, changed last November when India began capturing the pirates after they shifted operations closer to the Lakshwadeep Islands in the Arabian Sea.

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Universal Jurisdiction

German Prosecutors Investigate Gadhafi
Associated Press
June 21, 2011

German prosecutors say they have opened an investigation into alleged violations of international law by Libyan leader Moammar Gadhafi.

Federal prosecutors made clear Tuesday that they don't plan to bring charges of their own against Gadhafi but would seek to gather evidence for the International Criminal Court's case against the Libyan leader.

The prosecutors said they are acting on several criminal complaints. A spokesman declined to elaborate on their contents.

Germany has been able to investigate under the principle of universal jurisdiction, which allows states to pursue foreigners for crimes carried out abroad, since 2002.

The ICC's chief prosecutor is seeking arrest warrants for Gadhafi, son Seif al-Islam and intelligence chief Abdullah al-Sanoussi, accusing them of committing crimes against humanity.

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REPORTS

United Nations Reports

Guatemala: UN Envoy Against Sexual Violence Hails Arrest of Former
The UN News Centre
June 23, 2011

A United Nations envoy today welcomed the arrest of a former top Guatemalan military figure accused of genocide, war crimes and crimes against humanity, saying the arrest sends a strong signal that justice can prevail in the Central American country.General Hector Mario Lopez Fuentes, who served as chief of staff of his country's armed forces between March 1982 and October 1983, was arrested last week, according to media reports.

General Lopez Fuentes faces accusations that he directed a policy of wide-scale military attacks against civilians, particularly indigenous Mayans, during which entire villages were destroyed and countless women and girls were raped.

Margot Wallström, the Secretary-General's Special Representative on Sexual Violence in Conflict, issued a statement in which she stressed that ending impunity is essential if a country or society is to come to terms with past abuses against civilians.

Numerous Guatemalans were the victims of human rights violations during the country's protracted civil war, and the UN helped the Government set up the International Commission against Impunity in Guatemala (CICIG) in an effort to tackle the problem.

"The apprehension of General Lopez Fuentes sends a strong signal to all perpetrators that conflict-related sexual violence is not acceptable, and that justice will ultimately prevail," Ms. Wallström said.

"Sexual violence thrives on silence and impunity," she added. "Women have no rights if those who violate their rights go unpunished."

The envoy urged Guatemalan authorities to ensure the protection of victims, witnesses, human rights defenders and others throughout any legal action they may take to uphold their rights.

States Must Take Effective Measures to Prevent Torture – UN Chief
The UN News Centre
June 26, 2011

Secretary-General Ban Ki-moon today exhorted States to take effective legislative, administrative and judicial measures to prevent torture, calling the practice a brutal attempt to destroy a victim's sense of dignity and sense of human worth that can never be justified.

"There are no exceptional circumstances whatsoever – whether a state of war, or a threat of war, internal political instability, or any other public emergency or national security situation," the Secretary-General said in a message to mark the International Day in Support of Victims of Torture, being observed today.

"States' obligations also include the duty to provide effective and prompt redress, compensation and rehabilitation for all torture victims," he said. "On the International Day in Support of Victims of Torture, we honour the men and women who have suffered, enduring their ordeal with courage and inner strength. We mourn, too, those who did not survive."

He pointed out that the recent entry into force of the International Convention for the Protection of All Persons from Enforced Disappearances was a welcome addition to international human rights law, describing enforced disappearance as another manifestation of torture.

Mr. Ban urged all United Nations Member States to allow full and unhindered access by the UN Special Rapporteur on Torture to all places where people are deprived of liberty, and called on those countries that have not done so to ratify the Convention against Torture.

"At a time when the legitimate aspirations of people in many regions of the world for greater freedom, dignity and a better life are too often met with violence and repression, I urge States to respect the fundamental rights of all people."

"Torture and other forms of cruel, degrading and inhuman treatment and punishment, wherever they occur and whatever the circumstances, can never be justified."

In a separate statement to mark the Day, the UN High Commissioner for Human Rights Navi Pillay warned that those who perpetrate torture will be brought to justice no matter how long it takes.

She gave the example of Argentina's former prison director, Abel Dupuy, who ordered the systematic torture, cruel, inhuman and degrading treatment of possibly hundreds of political prisoners during the country's military dictatorship in the late 1970s and early 1980s. Mr. Dupuy was last year convicted of his crimes and sentenced to life in prison, 30 years after he started ordering the torture of those arrested.

"Torture is illegal, and if carried out on a systematic basis can amount to a war crime or a crime against humanity. No circumstances, however exceptional, justify the use of torture against anyone for any reason. Neither a state of emergency nor conflict, neither the fight against terrorism nor the fight against crime excuses the use of torture," said Ms. Pillay.

She lamented that despite the blanket ban on torture under international law, despotic governments and dysfunctional criminal justice systems perpetrated the crime every day.

"As we have seen very graphically in North Africa and the Middle East over the past few months, men, women and even children are tortured in detention simply for expressing their political views, in order to force confessions, or just because they were in the wrong place at the wrong time," said Ms. Pillay.

She said that those perpetrating torture and those who gave the orders did so with an expectation of impunity, but thanks to the courage and determination of victims and survivors, and the tireless efforts of human rights defenders, accountability is increasingly taking place and the perpetrators should no longer expect to get away with such heinous crimes.

"Prosecutions of the sort we are witnessing now, decades after the commission of the criminal act of torture, send a powerful message. The strengthening of international justice mechanisms, including the rapidly maturing International Criminal Court (ICC), means that the chances of torturers being snared one day, either on the national or international level, has greatly increased."

The UN Voluntary Fund for Victims of Torture, meanwhile, said a funding shortfall has forced it to reduce support to many organizations providing psychological, medical and social assistance to thousands torture survivors throughout the world. Support to legal aid programmes, crucial to fight impunity and bringing perpetrators to justice, has also been affected.

"After 30 years of achievements in rebuilding lives of victims of torture, the future of many projects is now at risk because of a reduction in voluntary contributions by donors," said Mercedes Doretti, the current chair of the Board of Trustees of the Fund.

In his message, the Secretary-General urged the international community to support the fund and thanked all governments and other contributors which have provided assistance. He also commended individuals and organizations that provide medical, psychological, legal and social assistance to torture survivors and their families.

Ms. Doretti said further support was needed to continue funding projects, including those in the Democratic Republic of the Congo (DRC) assisting victims of sexual violence, programmes for genocide survivors in Rwanda, and a project in southern Iraq providing reconstructive surgery to dozens of victims of punitive ear amputation, a brutal method of torture systematically used under Saddam Hussein's regime.

Contributions to the fund rose to $11.6 million in 2008, but donations by UN Member States have been dwindling over the past two years to just over $9 million last year, according to Ms. Doretti.

The funding shortfall has forced the board to cut the number of grants it awards by 10 to 20 per cent, she added.

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TRUTH AND RECONCILIATION COMMISSIONS

Ivory Coast

Ivory Coast: In Denial
Radio Netherlands Worldwide
By Bram Posthumus and Selay Marius Kouassi
June 22, 2011

In Ivory Coast, the gap between rhetoric and reality is growing dangerously large. On paper, all seems to be heading in the right direction. There is a Dialogue, Truth and Reconciliation Commission in place. Early June, the new government of president Alassane Ouattara declares it wants an end to impunity and justice for all.

It has already requested the International Criminal Court to investigate what it terms "the gravest crimes". On June 17, the ICC chief prosecutor invites victims of political violence to come forward and present their cases to a preliminary chamber, which will then decide on an official inquiry into war crimes. The next day, 17 close collaborators of the previous government of Laurent Gbagbo are released from the hotel where they were held, as a gesture of reconciliation.

Surely, these are all positive signs in the wake of a political crisis that has left more than 3,000 people dead, displaced hundreds of thousands and sent upwards of 200,000 Ivorians into exile.

But do they match realities on the ground? Not at all, according to reports from the economic capital Abidjan and from the west of the country.

From the west, some 175,000 refugees have fled into Liberia. They say they are perfectly willing to go home - provided someone disarms the armed gangs roaming their towns and villages.

President Ouattara has offered assurances that most of the Ivorian territory is under state control but that clearly has not convinced the refugees in Liberia.

It gets worse. Late May, armed gangs overran a small goldmine in Ivory Coast, just across the virtually unguarded border with Liberia, killing eight people. Fearing revenge attacks, villagers near a similar operation just inside Liberia wanted to be moved to a safer place. The police arrested some former Liberian mercenaries in connection with the case but found no arms.

The continued violence in western Ivory Coast has three sources: property conflicts, political differences, crime. The perpetrators could be hired guns used by citizens to settle disputes, out-of-control soldiers, mercenaries from Liberia - or armed criminals. In fact, anyone with a gun can be all of these at the same time. In May, armed men from Ivory Coast were arrested in the southernmost province of Maryland but these have subsequently been released and given refugee status. Meanwhile, rumours persist that pro-Gbagbo militias are re-grouping.

Something similar is happening in Abidjan. When the Republican Forces, the de facto army of president Ouattara moved into the southern part of the country in late March, they brought with them the warlords who had spent ten years carving out territories for themselves in the North.

They are now doing the same in Abidjan and their method remains unchanged: squeezing cash out of the travelling public. Cracks have appeared within the Republican Forces, with former rebels from the North refusing to take orders from former soldiers from Gbagbo's former army, even if they are higher in rank.

The Republican Forces are the biggest obstacle to an inquiry into the worst incident during the entire crisis: the massacre of up to 800 people at Duékoué, in the west of the country, which at the time was under their control. President Ouattara has said that an inquiry into the massacre is ongoing but he has not announced decisive action against the perpetrators, if and when they are found. Here is a question: is the massacre included in "the gravest crimes" that he wants the ICC to investigate?

Reine Alapini-Gansou, an Ivorian human rights activist told Radio France International this week that there can be no reconciliation without justice. But justice will be delayed unless Ouattara takes on the warlords now settling in Abidjan. This will almost certainly alienate them and Prime Minister Soro, the former rebel leader.

For now, the safe tack seems to be: deny there is a problem. But the problem does not go away. Reconciliation also implies the will to talk to each other. This is not in evidence either. Take these two scenes from Zwedru, Liberia. One: scores of young Ivorian men mill around the central square with nothing to do. They talk all day and drink at night. Two: in a restaurant down the road, two well-dressed gentlemen were adamant that they would fight the Ouattara government tooth and nail. Asked if that implied armed insurrection, their silence spoke volumes.

Kenya

Torture Victims to Snub Truth Team
Daily Nation
By Paul Ogemba
June 22, 2011

Victims of the Nyayo House torture chambers will not testify before the truth commission until it is properly constituted, a court heard on Wednesday.

Mr Njeru Kathangu said in a sworn affidavit that the victims had no confidence in the Truth, Justice and Reconciliation Commission because it had limited powers to investigate the over 15,000 human rights violations committed during the fight for multi-party democracy.

A victim, Mr Kathangu, said only a home-grown process involving people who were there when the violations took place could reveal the truth and build confidence in the commission.

Mr Kathangu said section 10 of the commission's Act made provision for three foreign experts, who have no background to the issues, were vulnerable to manipulation and did not add value to the reconciliation.

He was making submissions in a case in which he and four former MPs are challenging the setting up of the commission and seeking amendments to the TJRC Act.

He and Mr Kalembe Ndile, Mr Koigi wa Wamwere, Mr Otieno Mak'Onyango and Mr Moses Mwihia also want to quash the oath taken by suspended TJRC chairman Bethuel Kiplagat.

Through lawyer Mr Wanyiri Kihoro, also a Nyayo House torture chamber victim, they claim Mr Kiplagat is unsuitable to lead the team as he held positions in the government when the violations under investigations were committed.

Mr Kihoro told the court that Mr Kiplagat was very influential during former president Moi's regime, but up to now, he has not made public any information about violations that took place.

"He should have advised the President not to appoint him to the commission," Mr Kihoro said.

When he was detained at Nyayo House, he said, he was told that his fate would only be decided after Mr Kiplagat filed a report on his activities. He was in the cells for two months before the report was filed.

He said the truth commission would not achieve its goal if the people who knew what happened did not apologise.

"Reconciliation goes hand-in-hand with apologising, but so far, we have not heard any one publicly apologise for wrongs committed. This makes it hard to know the truth," he said.

He said the commission should not have been given a time limit and it should have its own parameters on violations to investigate.

Hearing continues on Friday.

TJRC Requests Extention of Time
Kenya Broadcasting Corporation
By Stella Kalekye
June 24, 2011

The Truth Justice and Reconciliation Commission (TJRC) Friday wound up its Northern Kenya hearings amid calls by the commission to have its mandate extended.

And all the while, it has been a torturous journey for the commission charged with the mandate of seeking justice for past injustices ranging from underfunding to a credibility crisis.

But its efforts have seen 161 witnesses appear before the TJRC to shed more light on past atrocities.

In the hot seat Friday was Rtd. Colonel Frank Kariuki who was offered a platform to narrate his experiences in relation to the gross violation of human rights that occurred in Northern Kenya.

Kariuki had a hard time defending the military's mandate in the volatile area which was at the time sought to secede from the rest of the country.

Kariuki's constant assessment of the locals' activities comparing them with the Mau Mau freedom fighters only acting to infuriate TJRC acting chair Tecla Namachanja.

The commission hopes to use the information gathered to make necessary recommendations with a view to providing closure to victims of the violations including Wajir's Wagalla Massacre.

However, the commission is seeking to have its tenure extended by another six months.

The commission fears that its mandate might not be achieved within the stipulated time taking into account the teething problems that the commission encountered at its tentative stages.

Activists Call for the Disbandment of TJRC
Kenya Broadcasting Corporation
By Glena Nyamwaya
June 28, 2011

The Truth Justice and Reconciliation Commission (TJRC) has come under attack from the International Center for Policy and Conflict (ICPC) for allegedly failing to deliver substantive transitional justice benefits.

The rights activist organization Tuesday said the commission's current underway proceedings have seriously compromised the noble goals of truth, justice and reconciliation.

In a statement, ICPC says "the Commission continues to fail the test of delivery of accountability by openly appearing to lack teeth hitherto and loss compass of its intended outcome. It faces huge antipathy towards its work and competence to execute its mandate effectively."

The center is now calling for the disbandment or winding up of the Commission's works.

"It will be catastrophic for Justice and Constitutional Affair Ministry to extend the time of the Commission when it is absolutely clear that the Kenyan people lost confidence with the Commission and completely disregarded it," ICPC further says.

The center also expresses concerns that TJRC despite its widespread condemnation and loss of legitimacy still continues to waste public resources while its financiers and supporters knowing far too well that it will not achieve much.

They accuse the TJRC, which was expected to be victims-centered, for turning out to be the perpetrators' denial forum.

ICPC adds that the TJRC will be a disastrous outcome to the some of the victims, who have appeared before it with a lot of expectations.

"It is a lost opportunity by the Country to bring to a closure its atrocious past," the statement reads.

Thailand

Truth Commission 'Still Needed'
Bangkok Post
By Achara Ashayagachat
June 27, 2011

The post-election government must allow the Truth and Reconciliation Commission for Thailand (TRCT) to preside over the direly needed rapprochement in Thai society, scholars said at a seminar on "Organisations and Process on Reconciliation After the Election" organised by Chulalongkorn University's faculty of law on Monday.

Surakiart Sathirathai, former foreign minister and deputy prime minister in the former Thaksin administration, said whoever leads the next government should re-endorse the TRCT to allow it to continue its leading role in the dialogue process aimed at true reconciliation.

"After years of polarisation, Thai society has at last come to some agreement that there must be no further political violence, no further divisions, and the country still abides by the constitutional monarchy.

"Therefore, reconciliation is the only door to get out of the protracted crisis," Mr Surakiart said.

There was no other appropriate body which possessed the prerequisites for gaining mutual tolerance and comfort levels from all sides, while having academic and research back-up for its work, he said.

"The politicians from all parties should ensure this happens and society should come out in force to support the continuation of the TRCT, but there might be other 'friends' who can help with the outreach to all political factions, including the Dubai person," he said.

Mr Surakiart was referring to ousted prime minister Thaksin Shinawatra.

The names mentioned as "Friends of TRCT" included deputy prime minister Sanan Kachornprasart, chief adviser of the Chatthaipattana Party, Anand Panyarachun-Prawase Wasi, chairmen of the Abhisit-appointed reform committee, and Niphon Prompan, Prime Minister Abhisit Vejjajiva's former secretary-general for political affairs.

"We need a social contract from all political groups that the TRCT will be given the necessary independence, resources and cooperation.

"People or bodies appointed by the parliament cannot resolve social divisions that are rooted in long-standing political conflict," said the former foreign minister.

TRCT member Kittipong Kittiyarak, the justice permanent secretary, said there was no easy way to achieve much-needed reconciliation.

It was also difficult to decide which memories should be forgotten and which should be remembered, and how, and when, and to what extent factual truths could be unveiled, he said.

"Reconciliation cannot be achieved unless the truth is told, and also (talking) about recent incidents and adequately explaining the root causes of the conflict.

"We might have to trace back to the years before the (2006) coup and perhaps to the period where we got the 1997 Constitution," said Mr Kittipong.

From the TRCT 's research and discussions with all conflicting sides since July last year, the Kanit na Nakorn-led panel had concluded that only public accountability through a restorative justice process could address the social bruises, he said.

"Criminal justice alone will not do, but transitional justice that includes remedies, admissions of guiltand apologies could lead to the desired reconciliation," said Mr Kittipong.

He said not only should the PM's office regulations that gave life to the TRCT be untouched, but the sensitive work of the TRCT could not continue if the enviroment was not conducive - if, for example, the new government and the conflicting parties showed only ignorance or abandonment of the process.

Thammasat University professor of political science Chaiwat Satha-Anand said there was a price to pay in whatever model of reconciliation was adopted. Foreign experience provided lessons, but he believed the forum and the undertakings should expand the outreach to all groups of people to gain a plurality of truth that was important.

"Opening up space to varying voices is a necessary process so that one set of truths will not overrule others," said Mr Chaiwat.

The peace activist said the TRCT might have to define what needs to be reconciled.

"I think reconciliation among politicians should not be that difficult, after all they've invested a lot (for the election).

"But Thailand's modern history seems to be a struggle to reconcile between political forces within the electoral system and those outside the perimeter, or in other words between traditional institutions and modern entities that emerged from democratisation," said Mr Chaiwat.

Federation of Thai Industries president Payungsak Chartsutipol agreed that it was time to bring back 'smiles' to Thailand.

"Truth will lead to solutions and the TRCT will hopefully steer us towards these goals if all sides lower their demands," said Mr Payungsak.

He said Thai society had overcome political difficulties in the past, such as in dealing with the communist party of Thailand and therefore the country should be able to look forward and to sacrifice where needed to achieve the much needed peace and stability.

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COMMENTARY AND PERSPECTIVES

The Contrast Between Libya and the Pre-AUMF "War" with Al-Qaeda
Opinio Juris
By Kevin Jon Heller
June 21, 2011

I've been following the debate over Libya and the War Powers Resolution (WPR) with great interest the past couple of weeks. I don't have anything intelligent to add to that debate, but I have been struck by the contrast between the Obama administration's view of "hostilities" for purposes of the WPR and its view of "armed conflict" for purposes of the military commissions -- particularly with regard to "war crimes" committed prior to the AUMF. As Jack Goldsmith notes in a superb recent post, the two standards are not only interrelated, the former was intended to be broader than the latter:

[T]he House Report to the WPR says that "hostilities" was a substitute for "armed conflict" under the laws of war and was meant to have a broader meaning. Some might not think this legislative history is relevant to an interpretation of the statute. But a 1980 OLC opinion acknowledges without objection that "the word hostilities was substituted for the phrase armed conflict during the subcommittee drafting process because it was considered to be somewhat broader in scope." The Obama lawyers told Charlie Savage that the 1980 opinion "remained in force." This is a large problem for the Administration, because the U.S. component of the Libya operation, considered by itself, is clearly an armed conflict under the laws of war. That suggests, under the OLC opinion, that it also amounts to hostilities under the WPR.

Notice how the Obama administration is working both sides of the street. On the one hand, the administration argues that U.S. actions in Libya do not qualify as "hostilities" for purposes of the WPR, because they "do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of U.S. ground troops, U.S. casualties or a serious threat thereof, or any significant chance of escalation into a conflict characterized by those factors." On the other hand, the administration insists that there was an "armed conflict" between al-Qaeda and the U.S. prior to the AUMF, which is a necessary condition of being able to prosecute al-Nashiri for the bombing of the USS Cole in 2000 and Khalid Sheikh Mohammed for 9/11, because al-Qaeda "declared war" on the U.S. in 1996:

Mr. Nashiri's case would also test another legal proposition: whether a state of war existed between the United States and Al Qaeda at the time of the Cole bombing -- before the Sept. 11 terrorist attacks and the authorization by Congress to use military force against their perpetrators.

The United States initially handled the Cole attack as a peacetime terrorism crime, but the government now contends that a state of armed conflict had legally existed since 1996, when Osama bin Laden declared war against the United States.

According to the Obama administration, therefore, "firing missiles from drones that kill people over an extended period of time pursuant to a U.N.-authorized use of force" (to quote Goldsmith again) does not qualify as hostilities for purposes of the WPR, yet a non-state actor's decision to "declare war" on the U.S. (a meaningless act under international law) creates an armed conflict for purposes of determining whether particular acts of terrorism are a war crime. And this even though the concept of "hostilities" is supposed to be broader than the concept of armed conflict.

The contrast is striking -- and still more proof that, like its lawless predecessor, the only principle guiding the Obama administration's approach to national security law is expedience.

U.S. Strains Credibility on its Libya Role
CNN
By Mary Ellen O'Connell
June 21, 2011

Harold Koh, legal adviser to the U.S. State Department, attempted to convince Congress on June 15 that the "limited nature" of U.S. military operations in Libya are not "hostilities" as envisioned in the War Powers Resolution, and, therefore, required no Congressional authorization.

But the U.S. had better be involved in hostilities or else our forces are engaged in unlawful killing. The U.S. has deployed manned and unmanned aircraft to fire missiles and drop bombs -- the type of weapons only permissible for use in armed conflict hostilities.

Most U.S. attacks in Libya today reportedly are being carried out by unmanned Predators. President Obama's report to Congress, also delivered on June 15, tries to minimize the meaning of using Predators. The report refers to "occasional strikes by unmanned Predator UAVs." But armed Predators carry two Hellfire missiles.

Missiles and bombs are permissible for use in hostilities because the intensity of fighting supports a presumption that killing without warning or attempt to capture is justified. Moreover, during hostilities, the law tolerates the unintended deaths of civilians as long as the number of those deaths is not disproportionate to the value of the military objective.

Outside of hostilities, where peacetime law enforcement rules govern the use of lethal force, killing is justified to save a human life immediately. "Collateral" deaths are not tolerated.

In a CNN Opinion post of April 25 I wrote, "President Barack Obama uses (drones) in places where, for political reasons, he does not want a significant U.S. military presence. Yet, that is the fatal attraction of drones -- they may not seem like a weapon of war, but they are."

I also wrote the U.S. was not likely to accomplish its goals in Libya with drones. It is still not entirely clear what the goals in Libya are. Whatever the goals are, the president is now projecting costs of over a $1 billion for the Libya operation through the end of September.

And for this the administration's lawyers are pushing strained interpretations of the law to keep the U.S. in the fight without Congressional authorization.

Others have looked at the contradiction between Koh's academic positions on the importance of the Congressional role in decisions to go to war and his position today. I wish to point to his appropriate and heavy criticism of Bush administration lawyers who manipulated or ignored international law in order to justify unlawful techniques of interrogation. He particularly criticized the "narrow" definition of torture, which he said, "flies in the face of the plain meaning of the term."

In addition to torture, international law defines "armed conflict" and "hostilities":

"The term 'hostilities' is another term closely related to the concept of 'armed conflict.' The (International Committee of the Red Cross) ... defines the term as 'the (collective) resort by the parties to the conflict to means and methods of injuring the enemy.' The term refers to the actual fighting of an armed conflict."

Koh should be very familiar with this definition. Not only was it identified by 18 of the leading scholars on the law of war, it has been posted on the website of the International Law Association since August 2010. The report that includes it forms the basis of my critical analysis of U.S. drone use that, in a public forum, Harold Koh acknowledged he had read.

The international law definition of hostilities comports with common sense. As Sen. Dick Durbin, D-Illinois, put it on "Meet the Press" last weekend: "It doesn't pass a straight-face test in my view that we're not in the midst of hostilities (in Libya)."

Albright: Beyond Global Justice
International Justice Tribune
By Geraldine Coughlan and Eerke Steller
June 21, 2011

Former US Secretary of State Madeleine Albright says the most important principle in international justice today, is equality. Speaking at the launch of the Institute for Global Justice in The Hague, Albright said, "we are all the same" and people have the right to justice.

Madeleine Albright, who is a member of the Institute's Advisory Council, told IJT that because the Institute will be a multi-faceted centre of expertise dealing with a range of issues including property, labour and energy law - it will mean legal empowerment for the poor.

To what extent do you think that global justice reaches beyond international tribunals?

There are various parts to global justice and one of the reasons I am very glad this institute has been set up is that it is going to be looking at much wider purviews in term of various themes that have been set up that go beyond tribunals. You try to establish legal norms that are not just from one part of the world. This is a new way of linking a lot of aspects and being interdisciplinary. So yes I do think global justice goes beyond international tribunals.

Do you think the US will join the ICC?

I have always believed in the legitimacy of the ICJ, created at the same time as the UN and it has played a huge role in the development of international law. The ICC has been an issue of some discussion in the US and I speak for myself. I always believed that it would have been important for the US to be a friend of the court. That was my recommendation as we were leaving office. There are a many number of reasons why the US did not ratify. What is interesting is that the ICC is getting greater and greater legitimacy as a result of some of the work that it has been doing and the US has supported it in terms of Sudan and in looking at Gadaffi. The US is increasingly recognising the existence of the ICC and the work that it has been doing.

The ICTY was set up under Chapter VII, intended to bring peace and as a deterrent. It does not seem to have done so. Do international courts serve as a deterrent?

My personal opinion is yes. What has been happening in the former Yugoslavia becomes more and more, proof of the theory that it does take a while. It is a big step forward that Milosevic was here and now Karadzic and Ratko Mladic are here. The ICTY is one of the important tools. The international judicial systems and the threats of indictment, arrest and trial, work on some, though not on everybody.

But I do think the ICTY is a legitimate deterrent to a number of cases. As the trials go forward, this becomes even clearer. Also there is the court in Arusha. And what is interesting is the evolution.

Nothing had happened after Nuremberg. And Nuremburg was a very different set of trials. One of my first tasks when I got to the UN was to help create the war crimes tribunals.

And it was a big issue whether they would work. There were a lot of doubts about it. But now there is a systematic proof that they have worked. And to some extent the ICC grew out of the idea that there could be a way that those people who were involved in crimes against humanity and genocide would be brought to justice.

It took a very long time to ratify the genocide convention. It's a slow process but I think on the whole it is justified.

What is so fascinating about the doctrine of protecting civilians?

What's fascinating about it is that we have gone through various periods where we did not worry enough about what was going on inside countries. That there have been wars between countries and all of a sudden we do know what is going on, where civilians become not collateral damage, but one of the reasons terrible things happen in countries. People are trying now to figure out, for humanitarian reasons, how to protect civilians.

What do you think is the most important principle in international justice today?

It is the fact that we are all the same and that people, no matter where they live, are entitled to have their views heard and to have justice for the causes that they think they have been wronged about.

Rwanda's Gacaca Courts: Implications for International Criminal Law and Transitional Justice
American Society of International Law
By Shannon E. Powers
June 23, 2011

On May 21, 2011, the Rwandan Justice Minister announced the imminent completion of all trials in gacaca courts, the modified community justice mechanism used across the country to try suspects of the 1994 Rwandan genocide. That same month, Human Rights Watch issued a comprehensive report on the gacaca trials. This Insight provides an overview of the gacaca system and highlights some of its successes and shortcomings in light of the varied, and often conflicting, goals of international criminal law and transitional justice.

Named for the Kinyarwanda word for grass, gacaca was a traditional form of communal justice, whereby communal elders would resolve disputes by devising compensatory solutions aimed at restoring societal harmony. Gacaca proceedings took place on an ad hoc basis and encouraged community participation. Following the genocide in Rwanda in 1994, the UN Security Council set up the International Criminal Tribunal for Rwanda ("ICTR") in neighboring Tanzania to prosecute those most responsible for the organized violence. However, over 120,000 lower-level suspects remained in Rwandan prisons, and the government soon realized it would take its dilapidated domestic judicial system over 200 years to try all cases. It therefore passed Organic Law No. 40/2000 in 2001, repurposing the traditional gacaca courts to deal with the remaining genocide cases. It is estimated that over one million cases have been tried to date under this law and its subsequent modifications.

The Gacaca Law divides crimes into three categories: the first category, relegated to the exclusive jurisdiction of the national courts and the ICTR, is reserved for the planners of the genocide and people who held positions of authority; Category 2 crimes include murder and bodily harm; and Category 3 is comprised solely of property crimes. Due to the slow pace of the national courts, in May 2008, the Rwandan parliament transferred most of the remaining Category 1 cases to gacaca, including cases of sexual violence.

The law also provided for the administrative structure of gacaca. Over 9,000 courts were set up across the country, with panels of nine locally elected judges hearing cases based on events that had taken place in that area. The courts were divided into two levels: the cell level, which handled information gathering and had jurisdiction over Category 3 cases, and the secteur level, which heard Category 2 cases and appeals from both levels. Collectively, the gacaca courts are coordinated by the National Service of Gacaca Jurisdiction ("NSGJ"), an agency under the auspices of the Ministry of Justice.

Because gacaca is a community-based institution, participation is mandatory for everyone, and legal professionals are generally not involved in the proceedings. Judges are provided basic training by the NSGJ, and the community at large, which serves as the General Assembly, is responsible for reporting events that took place, for filing accusations, and for testifying at hearings. From the community's reports, dossiers are compiled about what transpired in a particular community during the genocide, and judges rely on these dossiers to conduct hearings.

In the conciliatory spirit of the original gacaca, suspects are encouraged to confess both before they have been accused and again following their hearing in return for a reduced sentence. Victims are equally encouraged to forgive perpetrators. Gacaca judges can sentence those found guilty to imprisonment, order them to make reparations to victims, and/or complete community service, depending on the nature of the crime and whether or not the accused had confessed.

Many of the challenges in the gacaca process stem from the inherent contradiction of using a conciliatory process for a retributive purpose. The Rwandan government explicitly rejected the possibility of a truth and reconciliation commission because it refused to grant amnesty to perpetrators, preferring instead retributive measures. The institution of gacaca, however, with its emphasis on social reconciliation, foregoes many of the procedural safeguards awarded defendants in criminal trials in favor of a more participatory process. Such issues reflect broader tensions among the goals of international criminal law and transitional justice. The localized gacaca courts must be evaluated in light of each of these goals to fully understand the extent of their capacities and challenges.

Retributive justice emphasizes holding individuals accountable for their actions through commensurate punishment. On the one hand, gacaca has been credited with the swift delivery of results that could not possibly have been achieved by the ICTR or the national courts. This is significant because overcrowding in Rwandan prisons had rendered conditions intolerable, and delayed trials also raise significant human rights concerns. Tellingly, despite criticisms of the gacaca, virtually no feasible alternatives have been suggested. Some observers have even lauded the gacaca's ability to individualize responsibility and avoid the collective blaming of abstract groupings.

Swift trials, however, are meaningless if the process employed is fundamentally flawed. The Human Rights Watch report pointed out a number of procedural concerns with gacaca trials. The major concern focuses on the rights of the defendants. The accused are often deprived of the fundamental right to the best possible defense. Defendants are encouraged to confess to crimes, and, because they are not represented by counsel, they may not always be making informed decisions. This is especially troubling as confessions judged to be incomplete may garner lengthy prison sentences anyway. Moreover, because participation in gacaca is mandatory, an accused may be forced to incriminate him or herself. Other procedural concerns are rooted in the lack of legal professionalism, including the ability of judges to weigh the credibility of evidence and to render sound, impartial judgments. Finally, the adequacy of the appellate procedure has been questioned since cases can only be appealed within the gacaca system.

A second area of concern is whether gacaca is the appropriate forum for trying cases of sexual violence, which were pervasive throughout the Rwandan genocide. Article 38 of the 2004 Gacaca Law provides for closed door hearings in cases of sexual violence; however, victims emphasized that this special process itself draws attention to the nature of the issue being discussed. Furthermore, it can be more difficult for victims to testify about such experiences before members of their own community and harder to protect their identities. Some victims also feared reprisals.

Finally, in addition to the formal rules governing the gacaca process, problems have arisen in their implementation, including security concerns, allegations of corruption, and extensive government interference. Overall, in terms of retributive justice, gacaca has delivered swift results but could benefit from stricter procedural safeguards that would not necessarily impinge upon communal participation in the courts.

Compensatory Justice

Compensatory justice focuses on the attempt to restore the victims' property or provide them with some measure of reparation for the harm and losses suffered. Gacaca courts can order perpetrators to pay reparations or provide the equivalent value in labor for Category 3 crimes relating to property. The original Gacaca Law also suggested a possibility of indemnification for Category 2 and 3 crimes by requiring judges to draw up lists of damages to be transferred to the government. The 2004 version made clear, however, that before any indemnification could take place, enacting legislation would be required--a proposal that never materialized. Many of those interviewed by Human Rights Watch cited the lack of compensation to be one of their greatest disappointments in the gacaca process. Although gacaca has not yet provided adequate compensation to the genocide victims, it appears to be more an issue of political will and implementation than a consequence of the institution itself.

Deterrence emphasizes the need to demonstrate to would-be perpetrators that genocide and crimes against humanity will always be punished, thereby preventing such crimes. It is too early to judge whether the gacaca process will have a deterring effect on future behavior in Rwanda. However, another way in which deterrence is achieved is through the creation of norms that encourage peaceful conflict resolution and that stigmatize perpetrators of violence. Specifically in terms of international criminal justice, the goal is to create and reinforce an awareness of international law with real implications in people's everyday lives.

In this respect, gacaca can be considered more successful in Rwanda than the ICTR has been. The ICTR is perceived by many Rwandans as a remote, inaccessible institution that is controlled by foreign elements and has very little to do with their actual experiences. The gacaca process, on the other hand, has become a part of virtually every Rwandan's daily life. The fact that gacaca is rooted in traditional practice, led by members of local communities, and does not rely on formal legalistic procedures, renders it accessible to all participants. Thus, the institution itself is ideally situated for purposes of norm creation and consolidation. Whether or not gacaca proves to actually be capable of socializing Rwandans into non-violent conflict resolution and faith in international law is contingent upon Rwandans' perceptions of the fairness and legitimacy of the proceedings.

Restorative justice shifts the focus from individual punishment to the broader needs of the community and attempts to foster the healing and forgiveness required to move forward after large scale atrocities. Gacaca forces confrontation between victims and perpetrators on the theory that the experience of accusation, confession, and forgiveness will have cathartic effects for participants. It further carves out the space and audience for individuals to share their experiences and for the community to grieve together.

Interviews with Rwandans, however, indicate mixed results on the restorative effects of the gacaca experience. Some Rwandans have reported feeling a sense of relief and closure, but for others, participation has meant uncertainty, re-traumatization, and fear. Participation in gacaca has also declined steadily over the years, despite the legal requirement and penalties for truancy. This may reflect an increased stress stemming from participation and frustration with the process, or could simply be attributed to the necessities of life.

A related aspect of restorative justice is the ability to create a historical record. Courts are thought to be appropriate mechanisms for such endeavors as they invite dialogue from all parties, and also because survivors often value official acknowledgement of the wrongs they have suffered. In some cases, people remained uncertain about what had happened to loved ones, and finding out their fate through gacaca has provided emotional closure, or more pragmatically, the requisite information to find bodies for a proper burial.

The extent to which ordinary Rwandans are free to construct this narrative, however, remains in question. Some observers of the trials suggest that the informal structure of gacaca has enabled individual courts to conform to the needs of its participants. Others, in contrast, view gacaca as local productions scripted by the state in which ordinary Rwandans are simply acting out prescribed roles. In support of this latter view, observers point to Rwanda's sweeping laws prohibiting genocide ideology and sectarianism, the broad and ambiguous nature of which is said to have a chilling effect on expression in gacaca. They further emphasize the taboo against participants deviating from their expected roles of Hutu perpetrators and Tutsi survivors, and the consequent distortion of their narratives where no true fit exists. Such an allocation of roles based on ethnicity flies in the face of individualized responsibility, and it is possible that this process will ultimately serve to re-harden ethnic divisions rather than improve them. Furthermore, the gacaca courts do not try crimes committed by the Rwandan Patriotic Front, the party in power in Rwanda since the genocide. Such selectivity of prosecution omits integral passages from the historical record.

Another way in which gacaca has attempted to foster reconciliation has been in the partial or complete commutation of prison sentences into community service for those who have confessed. Arguably, this type of punishment is productive not only because it helps physically rebuild the community, but because it enables those found guilty to reintegrate into the community.

Overall, the record for gacaca's restorative effects is mixed. While the institutions are well primed to be sources of healing and forgiveness, it remains unclear whether they can serve as such either because they may be premised on flawed theories or because they have been implemented imperfectly.

The gacaca courts are still ongoing, and their overall success in the process of transitional justice will continue to be debated for a long time to come. Perhaps the point that emerges most clearly from the gacaca experience is that the efficacy of informal judicial institutions depends not only on the constitutional or substantive rules applied but also on the context in which they actually operate. In the Rwandan case, a number of external factors influenced gacaca and its ability to meet the goals of international criminal law; regime type, rampant poverty, lack of security guarantees, and national laws regulating speech each exerted an influence over the ways in which gacaca functioned and the people related to the courts. Nevertheless, the lessons from all aspects of gacaca's functioning are sure to inform future debate and endeavors in international criminal law and transitional justice.

The CMCR Invents the "War Crime" of Material Support for Terrorism
Opinio Juris
By Kevin Jon Heller
June 24, 2011

Earlier today, the U.S. Court of Military Commission Review (CMCR) held in U.S. v. Hamdan that material support for terrorism is a war crime and thus within the jurisdiction of the military commissions. The decision represents the apotheosis of the US's utterly self-referential approach to international law, because the CMCR managed to reach that conclusion without citing a single non-American source for the idea that material support is a war crime, not simply a domestic crime punished by states either of their own initiative or pursuant to suppression conventions. Indeed, the entire decision rests on a subtle -- and fatal -- elision of the difference between sources that indicate material support violates the law of nations and sources that indicate material support violates the law of nations regarding war crimes.

What is most distressing is that the CMCR is aware of the difference. The decision repeatedly acknowledges that the issue in the appeal is not whether the international community considers material support to be criminal, but whether it considers it to be a war crime (emphasis added):

"From the very beginning of its history [the Supreme Court] has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals." Ex parte Quirin, 317 U. S. 1, 27-28 (1942). Like the law of nations, the law of war must adapt to changing circumstances to be effective (p. 16).

Using its authority to define and punish offenses against the law of nations, Congress approves, within constitutional limitations, jurisdiction of military commissions to try persons for offenses against the law of war. Quirin, 317 U.S. at 26-31 (p. 16).

In this case, Congress and the President seek to protect our Nation's interests in ensuring compliance with the law of war and adherence to the law of nations, including customary international law, through adjudication and punishment of particular crimes against the law of war (p. 20).

We, like the military commission judge, consider international and domestic sources of law for pre-existing examples of criminalization under the law of war of conduct similar to that for which appellant was convicted (p. 34).

This emphasis on whether material support is criminal under "that part of the law of nations which prescribes. . . for the conduct of war" disappears, however, as soon as the CMCR begins to analyze international sources of law. The CMCR signals the change in emphasis at the very beginning of its analysis of those sources, when it notes that it has "an independent responsibility to determine whether appellant's charged conduct existed as well-recognized criminal conduct" (p. 20). Indeed, the section itself is revealingly -- and distressingly -- entitled "Criminalization of Analogous Global Conduct." Notice what is absent in these new formulations of the issue: any requirement that material support be well-recognized as a war crime.

That is not accidental. On the contrary, the elision is necessary to permit the CMCR to claim that international conventions and decisions of international tribunals support the idea that material support is a war crime. Consider the first category of international sources that it cites: international conventions and declarations. After discussing a number of suppression conventions, such as the International Convention for the Suppression of the Financing of Terrorism, the International Convention for the Suppression of Terrorist Bombings, and the International Convention Against the Taking of Hostages, the CMCR concludes as follows (emphasis added):

Although the approach of various nations towards punishment of terrorism-related offenses varies, prosecution of such offenses has been encouraged by the United Nations Security Council and treaties. We are satisfied that international conventions and treaties provided an additional basis in international law that appellant's charged conduct in support of terrorism was internationally condemned and criminal.

Yes -- but not as a war crime. Put aside the fact that, with the exception of the 1999 terrorist financing convention, none of the suppression conventions mentioned by the CMCR deal with anything resembling material support for terrorism, as opposed to terrorism proper. More important, none of the suppression conventions discussed in the decision address terrorism as a war crime. Indeed, the purpose of the conventions was precisely to address terrorism outside of armed conflict, where domestic laws and mutual legal-assistance regimes were often inadequate to address terrorist acts.

The next international source is even less helpful: joint criminal enterprise at the ICTY. According to the CMCR, nothing prevents it from "considering JCE. . . for purposes of determining whether an appellant's conduct was prohibited and historically punishable as a law of nations offense" (p. 41). And lo and behold, it does!

In applying the JCE liability analysis, appellant's underlying conduct constitutes known, unlawful acts historically punishable and established before 1996 (p. 43).

This is a ridiculous conclusion. First, JCE requires proof that the defendant entered into an agreement with another person to commit a crime, that the defendant intended to commit the crime, and that the crime was actually committed -- three requirements that are strikingly absent from the crime of material support (see pp. 28-29). Second (and this should go without saying), JCE is a mode of participation, not a "law of nations offense." Indeed, the CMCR itself acknowledges as much, noting two paragraphs after its statement that it can use JCE to determine whether material support was historically a "law of nations offense" that "JCE doctrine provides a theory of liability for proving a specific crime, and it is not a stand-alone substantive offense" (p. 41). The CMCR might as well claim -- and almost does, when it considers the modes of participation in the Rome Statute (p. 44) -- that the existence of aiding-and-abetting in international criminal law supports the existence of material support as a war crime. After all, the "underlying conduct" in aiding and abetting as a mode of participation is kind of like the "underlying conduct" in the crime of material support.

The CMCR's discussion of the third international source -- "Non-United States Domestic Terrorism Laws" -- is no better. Here we see the elision between material support as a violation of the law of nations and material support as a war crime under the law of nations most clearly, as indicated by the CMCR's framing of its analysis (emphasis added):

It is the duty of this court to ascertain whether appellant's conduct, providing material support for terrorism, constituted an offense against the law of nations. In doing so, we apply the definition of terrorism in 2006 M.C.A. � 950v(b)(24). . . and we consider the degree to which appellant's underlying conduct violated international standards defining crimes as shown by various national laws prohibiting terrorism (p. 45).

Notice: crimes, not war crimes. Thus framed, domestic terrorism laws obviously supports the CMCR's desired conclusion. As it notes, many states criminalize terrorism. Some even criminalized it prior to 1996, when Hamdan's acts of material support took place. (Although the decision cites only one state that did, India, and that state's pre-1996 terrorism laws did not criminalize anything remotely as broad as material support). None of those statutes, however, deem terrorism -- much less material support for terrorism -- to be a war crime. So the entire discussion is irrelevant.

The fourth and final international source is perhaps the worst of all: the crime of criminal membership at the International Military Tribunal and the Nuremberg Military Tribunals. The CMCR cites criminal membership, and convictions for it, in support of its conclusion that there is historical precedent for the "war crime" of material support. The analogy, however, is fatally flawed. To begin, criminal membership was not a war crime; it was a sui generis independent crime. More important, though, criminal membership does not bear even a passing resemblance to material support. First, and most obviously, whereas criminal membership required membership in a criminal organization, material support criminalizes the actions of individuals who are not members of a terrorist group. Second, the crime of criminal membership was purely inchoate; because of the membership requirement, it did not require the defendant to contribute to the criminal organization's crimes in any way. Material support, by contrast, is defined by the defendant's contribution, however slight, to the terrorist group's crimes. The only similarity between the two crimes, then, is that they both involve criminal groups.

Properly understood, in short, literally none of the international sources cited by the CMCR provide any support whatsoever for its claim that "[w]hen appellant's charged offenses began in 1996, the underlying wrongful conduct of providing material support for terrorism, as now defined under the 2006 M.C.A., was a cognizable offense under the law of war" (p. 75). The only sources to that effect are American ones -- and even those are far less helpful than the CMCR assumes. But that is a subject for a subsequent post.

Libya's Qaddafi Charged with War Crimes: a Help or Hindrance to NATO?
Christian Science Monitor
By Howard LaFranchi
June 27, 2011

International human rights advocates are hailing the International Criminal Court's indictment Monday of Libyan leader Muammar Qaddafi on charges of crimes against humanity. But the order for Colonel Qaddafi's arrest is not likely to alter the stalemate in which the NATO-led and US-backed military mission finds itself, some regional experts say.

If anything, the international court's action may result in an even more drawn-out Libyan conflict. It may serve to reinforce Qaddafi's determination to outfox NATO warplanes and his resistance to any diplomatic solution entailing his departure from Libya, because he could perceive that giving up is now tantamount to arrest.

"If you were Qaddafi, would this indictment make you more inclined to leave the country or negotiate a peaceful solution, or less inclined?" says Steven Groves, an expert in human rights and international institutions at the Heritage Foundation in Washington. "This is likely to make him more resolved to stick it out."

That inclination is not unique to the Libyan leader, who has seemed to delight in his ability to dodge NATO's bombing raids for months, adds Mr. Groves. "Heads of state are less inclined to consider a negotiated settlement, once they're in an armed conflict like this, if they have an international indictment hanging over their head."

The International Criminal Court (ICC), located in The Hague, announced the arrest warrants for Qaddafi and one of his sons, Seif al-Islam Qaddafi, on charges of ordering and organizing the arrest, imprisonment, and killing of hundreds of civilians in the initial days of the uprising against the Qaddafi regime. Also indicted was Qaddafi's intelligence chief, Abdullah al-Sanoussi.

The international organization Human Rights Watch praised the ICC's actions, saying the indictments would reinforce the message that abusive leaders can no longer expect to act above the law and violate internationally recognized rights with impunity.

At the same time, specialists with the group rejected the notion that the ICC's actions might actually prolong Libya's conflict by making Qaddafi more determined to stick it out.

"Muammar Qaddafi already made it clear he intended to stay until the bitter end before the ICC process was set in motion, and his son's February vow to 'live and die in Libya' speaks for itself," said Richard Dicker, Human Rights Watch's international justice director, in a statement. "It beggars belief that a dictator who has gripped power for over 40 years would be frozen in place by this arrest warrant."

The organization Amnesty International says its own research in Libya produced evidence of war crimes and crimes against humanity - including indiscriminate use of rocket fire on residential areas of the port city of Misurata. Amnesty says a failure by the ICC to prosecute Libya's leadership would send a "disturbing message" of impunity to the rest of the world.

Critics of rights groups' reasoning and of the international court's indictment say it is just as reasonable to argue that Qaddafi will be hardened in his resolve as it is to say that the Libya indictments will act as a message to the world's dictators.

Some US officials have acknowledged privately that an indictment of Qaddafi would very likely complicate the diplomatic environment and render more remote a solution that includes Qaddafi departing for another country. But there were no suggestions that the US leaned on the ICC prosecutors to hold off on the indictments.

Some NATO allies may see in the ICC indictments a boost for the military mission's moral authority, especially as the mission, once expected to be quick, drags on. There is also the risk, some experts say, that the indictments will reinforce those who suggest that the West is overstepping its bounds with its intervention in Libya.

The indictments were received in mixed fashion in Libya. While the opposition capital of Benghazi celebrated with gunfire and parades of honking cars, officials in Tripoli announced that Qaddafi is in "high spirits" and has no intention of leaving the country.

The ICC's action also revived debate over the independence of the international court.

Heritage's Groves says it would be "naive" to think that the ICC prosecutors took their action without considering the impact on the ground.

"Just like any prosecutor sitting in New York or Chicago or Green Bay, Wis., those at the ICC have discretion over whether they are going to file an indictment and when," he says. "That is one of the problems with a standing international criminal court and an independent prosecutor."

Others say the ICC must act independently of other international pressures if it is to fulfill its mandate to bring to justice the perpetrators of war crimes, crimes against humanity, and genocide.

"As a judicial undertaking, the court's work is distinct from the military and diplomatic initiatives unfolding in Libya," says Mr. Dicker of Human Rights Watch. "Justice, to be credible, must run its independent course."

International Criminal Court on Monday indicted Libya's Qaddafi on charges of crimes against humanity. Human rights groups cheer, but others say the move will cause him to dig in even more.

Gaddafi Will Fight it Out: Bolton
Australian Broadcasting Company
By Ali Moore
June 28, 2011

ALI MOORE: And joining us now from Washington to discuss the current situation in Libya, as well as other international issues, is John Bolton, the former US ambassador to the United Nations and now a senior fellow with the American Enterprise Institute, specialising in US foreign policy and national security.

John Bolton, many thanks for joining Lateline tonight.

JOHN BOLTON, FORMER US AMBASSADOR TO THE UNITED NATIONS: Glad to be here.

ALI MOORE: To Libya first, as we've just heard the International Criminal Court has issued an arrest warrant for the Libyan leader. It's a move that's been welcomed by the rebels. You're not supportive of that move?

JOHN BOLTON: Well, at best it's counterproductive.

As your report indicated, the likely effect of this indictment will simply to be to lock in Gaddafi's impression that he might as well fight it out to the end and the only way he will leave Libya, if ever, is horizontally.

So this is a case where the ICC, I think, has made it harder to reach a solution where Gaddafi voluntarily steps down from power, number one.

Number two, on the broader philosophical front the crimes that Gaddafi has committed in the last five months during this civil war in Libya, he has committed in the name of the Libyan people against the Libyan people.

Now, who should try him? The answer's clear: The Libyan people, ultimately, not some distant court in a far away capital.

The way to political maturation for the Libyans, as for anyone else, is to take responsibility for their history and having this from The Hague come in is an impediment to political growth in Libya itself.

ALI MOORE: I want to look at the court in a minute, but do you suggest there has been some chance that Gaddafi would voluntarily remove himself? That there was chance a chance of a deal?

JOHN BOLTON: There certainly have been efforts at negotiation.

I think that would be the easiest way out if NATO couldn't finish him off, which they haven't been able to do in over 100 days. And I think it's a propaganda tool for Gaddafi to use in the internal struggle in Libya.

I am pretty sure I'm right when I say the only people who have been indicted by the International Criminal Court are Africans. Now in the African context, what kind of tool does that give Gaddafi?

ALI MOORE: You call the ICC the world's most illegitimate multilateral institution, why? And I should point out here Australia is one of 114 countries that have joined the treaty that underpin the ICC.

JOHN BOLTON: That's your problem, not ours.

I was proud when I was in the State Department to unsign the United States from the Rome statute.

This is an organisation that takes one of the most fearsome and important powers of government, the power of prosecution, and puts it in the hands of a body that is essentially unaccountable.

That is as fundamentally anti-democratic a step as anything I can think of. Now, the advocates of the court say oh, but the member states control and oversee the prosecutor. Let me tell you with perhaps 130, 140 states parties to the Rome statute, anybody who's controlled by 130 or 140 countries isn't controlled by anybody.

So if you're of an anti-democratic view, you will just love the ICC's prosecutor.

ALI MOORE: Of course you were very critical of the US involvement in Libya, you cast president Obama as indecisive and inconsistent and said he'd set himself up for a massive strategic failure.

The US is not leading the NATO effort, they're supporting it. Do you think particularly in the light of this ICC move that should now change? Would you like to see the US step up its role?

JOHN BOLTON: Well, I don't think the ICC means anything so I wouldn't change my views in light of this indictment or any other activity they might undertake.

I have felt for quite some time since over three months ago Gaddafi threatened to return to international terrorism that there was a strategic interest for the United States and for the West as a whole in removing Gaddafi from power and that it was worth using force with or without Security Council authorisation to accomplish that objective.

That's not why the United States or the Arab League or anyone else is involved in Libya.

It's by the terms of the Security Council resolution and president Obama's repeated commitments only to protect Libyan civilians.

While we may want Gaddafi gone, according to the president we're not supposed to be using force to accomplish it, although we did manage to kill three of Gaddafi's grandchildren in a NATO strike.

That is part of the problem of leadership and incompetence really on president Obama's part. Had we acted swiftly and decisively at the beginning of this conflict, I think it might well be over now and Gaddafi would be out of power.

ALI MOORE: Do you worry about what will come after Gaddafi, whenever that might be?

JOHN BOLTON: I definitely worry about what would come after him and I think that is sad to say, another failing of the United States and NATO in this engagement.

We should have been working quite some time ago to find responsible pro-Western leaders who could take over once Gaddafi is removed.

I don't think we have succeeded on that front and I think there is a risk that terrorist and Islamic radicals among the opposition forces could end up in control once Gaddafi is removed or in another scenario that's entirely possible, a divided, a petitioned Libya, you could end up with the worst of both worlds - Gaddafi in control of the ancient province of Tripolitania in the west and the radicals in control of Cyrenaica in the east.

ALI MOORE: You've written on the Arab spring more generally, you've written about the rising threat of what you call the Iranian winter which you say could outlast and overshadow the Arab spring. What do you mean by that?

JOHN BOLTON: Well, the government of Iran for 20 years has been the world's central banker for international terrorism and it funds terrorists on an equal-opportunity basis.

It funds Shia terrorists and Iraq, Hezbollah in Lebanon but it funds Sunni terrorists as well, Hamas in the Gaza Strip and its former sworn enemy the Taliban in Afghanistan.

So Iran is clearly fishing in troubled waters in the Arab world and when you combine that with its ever closer presence to achieving a deliverable nuclear weapons capability Iran is a real threat throughout the Middle East and I worry about it in a number of different contexts.

Will the ICC Help Defeat Qaddafi?
Council on Foreign Relations
By Deborah Jerome
June 28, 2011

Muammar al-Qaddafi could face a war crimes trial at The Hague after the International Criminal Court (ICC) issued arrest warrants for him, along with his son Saif al-Islam and his military intelligence chief General Abdullah al-Sanoussi. The June 27 warrants, which came on the one hundredth day of international military operations in Libya, allege the men were involved in ordering security forces to fire on unarmed protesters in February. But while many Libyans in Benghazi, Misurata, and elsewhere celebrated the ICC's announcement, questions abound about whether the warrants will speed the regime's fall or deepen its defiance (TIME).

Qaddafi and the others named by the ICC are accused of orchestrating the killing (WashPost), injuring, arrest, and imprisonment of hundreds of civilians during the first dozen days of the uprising against Qaddafi. Thousands more have died since. The hostilities have led to humanitarian concerns about the flight of Libyans into Europe and neighboring countries. Oil markets have also been disrupted, with oil prices at their lowest yesterday (National) since the start of the Libyan conflict, as markets prepared for a global release from crude reserves. The Qaddafi regime's ouster is a condition for the cessation of NATO military operations and the departure of allied troops.

The Qaddafi regime dismissed the court's announcement (Reuters). Libya is not a signatory to the Rome statute establishing the ICC in 1998, and the court only has jurisdiction in countries that have signed and ratified the statute; it relies on member states and other international organizations to perform arrests and has limited enforcement mechanisms. The only other warrant the ICC has issued for a sitting leader was in 2005 for Sudan's Omar Hassan al-Bashir, for crimes in Darfur. Bashir remains in power, though his movements out of the country are somewhat constricted (he is traveling to China this week).

So while the ICC warrants further isolate Qaddafi (alArabiya) and "dramatize the illegitimacy of his regime in the eyes of most of the world, [they do] not ensure he will appear in the dock at The Hague any time soon--if ever," writes London-based analyst Ray Moseley. Is the ICC warrant meaningless, then? Some human rights activists argue that such arrests can act as a warning to other repressive leaders. "The record from other conflicts also shows that arrest warrants for senior leaders can actually strengthen peace efforts by stigmatizing those who stand in the way of conflict resolution," says Human Rights Watch, noting "the indictments of Radovan Karadzic and Radko Mladic by the International Criminal Tribunal for the former Yugoslavia are credited with keeping them sidelined during the Dayton peace talks, which led to the end of the Bosnian war." White House spokesman Jay Carney said the Qaddafi warrant (CNN) is "another step in the process of holding him accountable."

Others, like the Guardian's Simon Tisdall, argue that "the court's demarche may reinforce Qaddafi's determination to stay" and fight. "Heads of state are less inclined to consider a negotiated settlement (CSMonitor), once they're in an armed conflict like this, if they have an international indictment hanging over their head," concurs Steven Groves of the Heritage Foundation. And if Qaddafi did step aside and accept exile, a deal would have to address his likely insistence on being shielded from arrest (LAT), which would effectively weaken international justice. The ICC warrant could serve as a "bargaining chip" in negotiations over ending Libya's civil war, writes Max Fisher on TheAtlantic.com, "but it's not quite international justice in the legal sense of the term."

"The arrest of one or more of these perpetrators and their transfer to The Hague would make the public perceive the ICC as a real player," writes David Kaye, executive director of the UCLA School of Law International Human Rights Program, in Foreign Affairs. "But a bad outcome--no arrest, continued atrocities, a safe haven, or something else for the Libya three--could further ingrain in the international community an image of the court as more of a tool than a valuable end in itself."

The ICC must place greater emphasis on strengthening the national justice systems of countries where atrocities have occurred, writes David Kaye. He argues in this CFR Special Report that accountability should be integrated into building rule of law after a conflict.

"International criminal tribunals are rife with shortcomings--and should remain only a secondary option, when local forms of delivering justice are impossible," writes CFR's Stewart M. Patrick on his blog, The Internationalist.

The ICC must decide how it will deal with aggression, a crime listed in the Rome statute. Trying to identify aggressors could politicize the court and undermine its credibility, says the Economist.

Two Years After the End of the War in Sri Lanka
Groundviews
By Leela Isaac
June 30, 2011

The UN panel report or the Darusman report was condemned and rejected. The stand taken by the government was that "not a single civilian was killed during the last stages of the war. If some of those dead were found to be in civilian clothes, they were Tigers in disguise, even if they happened to be children or elderly women. No one can say we committed war crimes because no one saw what happened during the last stages of the war. Therefore we don't have to answer any questions raised by UN or the international community." In a way this is true - no one saw what happened at Mullivaikal, Pudukudiyiruppu and Nandikadal in May 2009. There were no witnesses. The UN and the international community actually abandoned those 300,000 civilians, who were left alone to face the LTTE on the one hand and the Sri Lankan army on the other, and God knows who killed more civilians, the army or the LTTE. We are only told that about 40,000 to 60,000 people died during the last stages of the war.

Now, with the appearance of the Channel 4 video, "Sri Lanka's Killing Fields", the government is once again plagued by the same questions. Many have seen the documentary and commented. To some it is compellingly indicative of war crimes by the Sri Lankan state. They speak of "credible allegations" that must be investigated. British Prime Minister David Cameron is reported to have said, "the Sri Lankan government does need this to be investigated and the UN needs this to be investigated and we need to make sure we get to the bottom of what happened and that lessons are learnt". A US embassy official has said, "we are deeply concerned about credible allegations of International Humanitarian Law and Human Rights violations in Sri Lanka. We support a full accounting of and accountability for those who engaged in acts that violated international human rights law and intentional humanitarian law".

But the Sri Lankan government does not take these allegations seriously, because according to those in power, the Channel 4 video is a fake. Its documentary producer Callum McCrae, anchor Jon Snow and everyone else involved in the production of the video are accused of being on the payroll of the Tamil Tiger Diaspora. Siri Hewavitharana, a Sri Lankan Australian who is described as a leading expert on digital video systems, has debunked the video footage. In his opinion the video shows 'doctored images' of naked bodies of women being thrown on to trucks by laughing and joking soldiers. But Channel 4 claims that the footage has been authenticated by four experts: forensic pathologist Daniel Spitz, forensic video analyst Jeff Spivack, fire arms evidence expert Peter Diaczuk and forensic video expert Grant Fredricks. If what our expert Hewavitharana says is true, he is still required to prove that the other four experts are wrong. The Sri Lankan government needs to prove to us and the world that the documentary is a fake, only then can the country's name be cleared. Vehement denials alone will not restore Sri Lanka's honour.

While this debate goes on in the south, the situation in the north doesn't seem to have improved.

TNA (Tamil National Alliance) MPs including Suresh Premachnadran and Sumanthiran have complained to the president that their meeting with their party candidates at Alaveddi on 16th June, was attacked by the army for no reason. "There is no civil administration in the North. Two years after the end of the war, we still live under military rule," they have said. People are also being forcibly photographed and registered by the army, and they are naturally gripped by fear.

Prof. Ratnajeevan Hoole, one of the well known and respected intellectuals, too has recently complained to the president that on the 29th of May a meeting organised by the 'Noolaham Foundation' was rudely disrupted by the army. Colonel Jayawardena and his men had barged into the hall screaming, "No LTTE commemorations, Ministry of Defence orders, do you understand?" He concludes his appeal to the president by stating, "the government after winning the war is losing the peace - we must point out the irony of our government working with former hardcore LTTE personnel and using some of them as informants while branding respectable Tamil civilians as LTTE".

When Anadasangaree speaks on behalf of the Tamil people, Tamils are a little sceptical, because he is seen as an ardent supporter of the Rajapakse regime. Yet even he now feels that the army must be withdrawn from the north. According to him, "the people in Jaffna urgently need peace. They want freedom- freedom of speech. Now people in Jaffna can't even have a temple meeting. The army goes and chases them away. This is exactly what happened 30 years ago, and it drove some youth to take up arms against the government. The military presence there is used to keep the people under subjugation".

It is also reported that EPDP's dreaded Charles has resurfaced to terrorize the people. Douglas Devananda (EPDP) who has announced his candidature for the Chief ministership of the North Provincial Council seems to have brought back Charles to instil fear among the people and help him win the election. Charles who had been once with the LTTE later joined the wining side (the EPDP).

Anyone who is even very slightly critical of the government is attacked by the army with the help of the pro-government Tamil politicians. Keerthi Tennekoon, the Director of CAFFE (Campaign for Free and Fair Elections,) is reported to have said, "The attack on the TNA public meeting held on 16th June was not an isolated incident but part of a systematic mechanism to harass opposition party members, who are not allowed to travel freely in Killinochchi, Mullaitivu and even in Jaffna. The army and the police are also questioning the opposition party members' families in an attempt to create a fear psychosis." (Sunday leader 19/06) In this environment a free and fair election cannot take place.

What then is the future of the Tamils in Sri Lanka? They do not demand a separate state, but a life of dignity and security. More than all they want to be treated as equal citizens of this country. For more than 25 years Prabhakaran controlled their lives and they remained submissive not because they lacked the will or the courage to oppose him, but because they could not place their trust in the successive Sri Lankan governments that had betrayed them many times in the past by breaking promises and agreements, starting with the Bandaranaike - Chelvanayakam pact in 1958 and ending with Rajapakse's own APRC (All Party Representatives Committee) report which perhaps is now resting in a dustbin. Mr. Premachandra is quoted saying, "the APRC report contains many positive recommendations. The TNA though not a participant in the APRC deliberations would like to consider them if the government was ready to start a dialogue on the recommendations of the APRC proposals". However, President Mahinda Rajapakse seems to have rejected his own APRC's proposals, and instead wants to appoint yet another Parliamentary select committee to find a solution to the ethnic problem, on the advice of one of his favourite ministers - Dougles Devananda. This can only be considered a practical joke being played not only on the Sri Lankans, but also on the UN and the international community!

As long as the Rajapakse regime holds power there will be no solution to the ethnic problem. In fact no Sinhala majority government will grant equal rights to the Tamils fearing that it would lose the support of the Sinhala masses. The majority Sinhalese have been conditioned to believe that the Tamils are 'foreigners' who settled down in this country long after the Sinhalese and therefore cannot claim equal status. "They are Elara's people and we are the descendants of the great King Dutugemunu who defeated Elara the Tamil King. Therefore they cannot be our equals". School children are conditioned to think on similar lines, and they grow up believing that the Aryan Lion race is superior to the Dravidian Tamils. Until Sri Lanka becomes a truly Buddhist Country believing in the teachings of the Buddha, the Tamil and Muslims will not be granted equality. In the Vasettha Sutta the Buddha declares the unity of human biology and that there is only one human race. He makes the unambiguous assertion that all human beings belong to the same 'jati' - the human race. It's only when the Sinhala majority realizes this truth that they will accept the Tamils and Muslims as equals and grant them equal rights. Will that day of realization ever dawn?

How to Depose Kadafi
LA Times
June 30, 2011

Arrest warrants issued against Moammar Kadafi and two of his relatives by the International Criminal Court may make it harder to get rid of the Libyan strongman.

Moammar Kadafi is a fitting target for the arrest warrant issued against him by the International Criminal Court. Whatever one's opinion of the court -- and The Times' editorial board has been divided on the subject -- the charges lodged against the Libyan strongman and two relatives dramatize the worldwide condemnation of Kadafi's war against his own people. He is now formally what he has been in fact since the Arab Spring came to Libya: an outlaw.

The grounds for the warrant, according to the court, are that Kadafi allegedly committed crimes against humanity -- specifically murder and persecution. Judges said there was sufficient evidence that he, his son and his brother-in-law ordered the killing and imprisonment of hundreds of civilians in February.

But although the charges against Kadafi bring moral clarity to the discussion of his conduct, we're sorry the court went through with them. We take this view not because of any particular doubts about Kadafi's guilt but because the warrants against him and his relatives could complicate efforts to reach a political solution under which he would step down. The International Crisis Group, a nonprofit organization that aims to resolve international conflicts, stated the problem clearly: "To insist that he both leave the country and face trial in the International Criminal Court is virtually to ensure that he will stay in Libya to the bitter end and go down fighting."

A political solution is an option NATO and the United States should keep on the table, offensive as the idea of Kadafi enjoying a pleasant retirement may be.

In the absence of such a deal, it's not all that unlikely that Kadafi would end up killed in one of NATO's air raids. That would be too bad, partly because the NATO mission is ostensibly intended to protect civilians, but also because Kadafi is not Osama bin Laden, and his killing would no doubt lead to widespread criticism. Better to seek a negotiated settlement.

How to deal with dictators guilty of human rights abuses is a familiar dilemma, pitting those who prize justice above all against pragmatists who believe that exile for a despicable leader -- even exile in comfort -- is preferable to continued oppression and violence. There is no single right answer, but in the case of Libya, a political settlement that ensured the departure of Kadafi -- international outlaw or not -- would be justified.

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WORTH READING

Jurisdiction to Adjudicate and Jurisdiction to Prescribe in International Criminal Courts
Villanova Law Review
By Kenneth S. Gallant
June 21, 2011

Abstract: Direct jurisdiction over individuals, along with responsibilities to them, are outstanding characteristics of the new International Criminal Court (ICC or Court), as they already are of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR). This Article raises issues of legitimate power to prosecute and to define criminal law and issues of individual human rights which necessarily arise in any criminal system.

This Article is predominantly an analysis of issues of criminal jurisdiction over persons as they are treated in the ICC Statute, as well as in the current ad hoc international criminal tribunals. Part II discusses the sources of international criminal tribunals' jurisdiction to prescribe from the end of World War II through the proposal of the ICC Statute. Part III describes the limited jurisdiction to adjudicate over individuals in the ICTY and ICTR. Part IV discusses the ICC Statute's general statement of and limits on jurisdiction to adjudicate over individuals. The subsequent Parts examine personal jurisdiction in the three classes of cases, defined by the manner in which a situation comes before the ICC, as set out in the ICC Statute. Part V addresses two of these, jurisdiction to adjudicate where a situation is referred to the Court by a State or where an investigation is initiated by the prosecutor proprio motu. Part VI addresses personal jurisdiction in situations referred to the ICC by the United Nations (U.N.) Security Council. These latter two Parts necessarily address jurisdiction to prescribe criminal law, as well as jurisdiction to adjudicate allegations of crime, because situations covered by the ICC Statute may involve nationals of States not parties to the ICC Statute, that have not accepted the Court's jurisdiction.

Diplomatic or Consular Immunities for Criminal Offenses
Virginia Journal of International Law
By Tariq Hassan
June 21, 2011

Abstract: Raymond Davis, a United States national, killed two Pakistanis in Lahore on 27 January 2011 - albeit allegedly in self-defense. The US actively sought the release of Raymond Davis on the pretext that he had diplomatic immunity. The legal principles regarding diplomatic and consular immunities and privileges are well established under international law. While giving effect to the applicable Vienna Conventions on diplomatic and consular immunities, the Pakistani law in respect thereof clearly lays down the principle of reciprocal treatment of diplomatic and consular officers and employees in Pakistan. The legal outcome of the Raymond Davis case hinged on the factual determination of his status. The Pakistani government had the option to give the requisite diplomatic certificate or let the court determine his status. In the latter case, the Pakistani court had the option to determine Raymond Davis' diplomatic, consular or contractual status and grant or not grant immunity accordingly. The Pakistani government ignored the status of Raymond Davis and did not submit the required certificate regarding his diplomatic status in court. Even if the court had granted him diplomatic immunity, Raymond Davis would not have been absolved of the offense of double murder. Under the circumstances, the proper course for Pakistan would have been to approach the U.S. Embassy in Islamabad and the U.S. State Department and ask them to waive this privilege in view of the gravity of the alleged offense committed by him. The offer by the U.S. to "investigate" this matter in line with its own practice was too little too late. The U.S. should have exhibited a deeper commitment to the rule of law by either, waiving immunity and allowing Pakistani courts to try Raymond Davis, or agreeing to prosecute him in the U.S. for the alleged criminal offense even if he was entitled to diplomatic immunity. A diplomatic row between the two countries was, however, a averted by the release of Raymond Davis by the court pursuant to a settlement agreement reached between him and the family members of the deceased under Shariah law.

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War Crimes Prosecution Watch Staff

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and Brianne M. Draffin

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Obama Administration Shuts Down Investigations Into Bush-era Torture

http://www.globalresearch.ca/index.php?context=va&aid=25519

As part of its cover-up of Bush administration war crimes, the Obama administration announced June 30 that it would shut down 99 investigations into deaths of prisoners in US custody during the so-called “war on terror,” leaving only two investigations with the potential to develop into criminal prosecutions.

The announcement underscores the fact that the anti-democratic policies developed during the presidency of George W. Bush continue unchallenged under President Barack Obama, who is doing everything in his power to keep the lid on the crimes of his predecessor.

Following the events of September 11, 2001, the Bush administration quickly and quietly erected a network of secret prisons and “black sites,” where opponents of US imperialism in the Middle East—as well as, in many cases, their friends, relatives and acquaintances—were jailed, tortured and murdered.

The Obama administration has continued and expanded the anti-democratic methods of the Bush administration, including the use of presidential assassination orders, indefinite detention without trial or charges, blocking court cases that threaten to reveal torture, domestic spying, prosecution of whistle-blowers, “rendition” of alleged terrorists to countries that practice torture, open violations of US and international law, including the War Powers Act in the case of Libya and the Geneva Conventions more generally, and the maintenance of illegal torture camps such as the infamous facility at Guantanamo Bay, Cuba.

The administration’s 101 investigations into torture deaths were a token measure to begin with. The investigations were initiated in 2009 and were designed to placate popular disgust with torture and other crimes carried out under Bush.

The 101 cases by no means include every death in US custody, and rather conveniently, no case in which the torture victim survived was selected for investigation. The investigations proceeded on the explicit basis that the infamous Bush Justice Department torture memos would not be challenged. Neither would the Bush-era policy of “enhanced interrogation” (a euphemism for torture). The only question that was to be pursued in the investigations was whether the Central Intelligence Agency operatives in the 101 selected death cases had violated Bush administration guidelines. Saddled with such limitations from the outset, the investigations could barely scratch the surface of government-sanctioned war crimes.

Echoing Obama’s mantra of “looking forward, not backward,” Attorney General Holder announced June 30 that 99 of the 101 cases did not warrant further investigation.

“I welcome the news that the broader inquiries are behind us,” remarked Leon Panetta, who left his post as CIA director July 1 to become secretary of defense. “We are now finally about to close this chapter of our agency’s history,” he added. Panetta was referring not to closing the chapter in which torture took place, but closing the chapter in which the agency’s practices were subjected to any form of official scrutiny.

While the two ongoing investigations remain officially secret, some details have been leaked to the press. One case involves the murder of a prisoner at Abu Ghraib prison in Iraq; the other case involves a murder at the secret CIA “Salt Pit” prison in Afghanistan. These two cases are remarkable both for the shocking brutality of the murders themselves as well as for the cold-blooded “business as usual” attitude of the CIA operatives involved.

Only the most depraved intellect could have designed the nightmarish “Salt Pit,” located northeast of the Kabul, Afghanistan airport, in which a young Afghan man named Gul Rahman was murdered on November 20, 2002.

Ghairat Baheer, a physician and son-in-law of an Afghan political figure associated with opposition to the US occupation, survived the Salt Pit and gave a chilling account to the press of the conditions surrounding Rahman’s death. Baheer and Rahman were old friends, and they were abducted by CIA operatives at around the same time in October, 2002. They were taken together to the Salt Pit for “enhanced interrogation.”

The CIA chose an abandoned brick factory for the installation. According to Baheer, an unimaginable stench permeated the Salt Pit, where prisoners were kept in windowless cells with metal buckets for latrines. Prisoners called it the “dark prison” because there were no windows and no electric lights.

Prisoners spent much of their time in total darkness. The CIA operatives running the prison wore full face masks and used medieval-type torches to make their way through the blackness. In many cells, prisoners were shackled naked to the rough walls with metal chains. No expense was spared to ensure maximum ghoulish terror.

Baheer said he was forced to sleep naked on a rough concrete floor next to his latrine bucket, when he was not chained to the wall of his cell. The cell was perpetually dark.

CIA operatives took turns repeatedly torturing the two men. Among the countless horrors, the two men would be tied to chairs, their torturers would sit on their stomachs, threaten to kill them, stage mock executions, beat them, or douse them with water and leave them to freeze naked in the unheated cells.

According to Baheer, Rahman was stubborn and defiant during the interrogations. The details of the events of the morning of November 20, 2002 are still unclear, but it is known that at some point Rahman’s captors stripped him naked below the waist, shackled his hands over his head, brutally beat him, and then doused him with water. Within hours, Rahman had died of hypothermia.

The Salt Pit prison was closed last year after it became the subject of international scrutiny and survivors began to describe to the press the hideous terrors that took place inside. In closing the prison, the CIA no doubt also had in mind the destruction of any physical evidence of the crimes that had been committed there.

The CIA appears overall to have regarded the Salt Pit as a successful operation. According to information leaked to the Associated Press, the CIA Kabul station chief has been promoted at least three times since Rahman’s death.

The second of the two ongoing investigations involves the murder of Manadel al-Jamadi at the hands of CIA operatives in the infamous Abu Ghraib prison in Iraq on November 4, 2003.

Jamadi, an alleged insurgent, was abducted violently from his house outside Baghdad in 2003 by Navy SEALs—the same feared and secretive military force that has been lauded in the bourgeois media for the murder of Osama Bin Laden. Apparently, Navy SEALs pursued Jamadi into his kitchen, where he made a ferocious last stand, toppling his stove onto one of the SEALs. In retaliation, the SEALs beat him savagely before turning him over to the CIA for interrogation at Abu Ghraib. Naturally, no trial or legal process of any kind was involved in this operation.

Forty-five minutes after he walked into Abu Ghraib, Jamadi was dead. It appears that once he arrived, Jamadi was subjected to further beatings and was chained to the wall, after which he lost consciousness and asphyxiated. Jamadi’s bruised and bloodstained corpse is featured in a number of the infamous Abu Ghraib photos, with grinning US military personnel standing over him and giving the “thumbs up.”

For as yet unexplained reasons, Jamadi’s corpse was packed in ice and stored in a shower in an attempt to prevent decomposition (military officials jokingly referred to him as “the Iceman”), and CIA officials mysteriously attached an intravenous tube to one of his arms before whisking the corpse out of the facility the following day. It appears that not long after Jamadi’s death a heated dispute broke out between the CIA and the Navy SEALs over which organization would take the blame. CIA operatives at Abu Ghraib rapidly moved to destroy all of the evidence of Jamadi’s death, including a bloodstained hood, and they scrubbed clean the death chamber.

While the Rahman and Jamadi murders constitute only the tip of the iceberg, they expose the day-to-day reality of CIA operations in occupied Iraq and Afghanistan. The CIA, tasked with discovering and silently “taking out” opponents of the occupations, operates outside the bounds of US and international law. When a federal court ordered the CIA to release 92 video tapes of “enhanced interrogations” in 2005, the CIA responded by destroying the tapes, a brazenly criminal maneuver for which no official to this day has been prosecuted.

The decision by the Obama administration to shut down virtually all of its investigations is a clear signal that the war crimes will continue. Indeed, in the bourgeois press, Holder’s announcement last Thursday was generally interpreted as a green light from the Obama administration to resume and escalate the practice of torture and murder of political opponents in the Middle East. The headline of an article in the Washington Post read, “Could Torture Make a Comeback?”

A deeply reactionary and chilling editorial in the Wall Street Journal, titled “Vindicating the CIA: Ending a Disgraceful Investigation,” went further. Gloating over Holder’s announcement, the editors declared, “The disgrace is that this probe was ever undertaken.”

The editors continued, “The probe has still done considerable harm by creating a culture of second-guessing and political retribution that CIA operatives must now consider as they try to protect against terror threats.” Translated from the euphemistic language of the so-called “war on terror” into plain English, this means that the intelligence agencies should be permitted to go about the grisly work of torturing and murdering their enemies in secret without any restrictions or oversight whatsoever.

The fact that this view enjoys wide support within the ruling class should be taken as a dire warning. How will this same ruling class respond to the development of a popular movement within the US that directly challenges its interests?

Global Research Articles by Tom Carter-

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Wednesday, July 6, 2011

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War Crimes Prosecution Watch Staff

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