Tag Archive | "War Crimes"


Senegal’s Habré Sentence Sends a Strong Message


Chad’s former dictator Hissene Habre raises his hand during court proceedings in Dakar, Senegal, Monday, May 30, 2016. Judge Gberdao Gustave Kam declared Habre guilty and sentenced him to life in prison for crimes against humanity, war crimes and torture, in a packed courtroom, Monday.(AP Photo/Carley Petesch)

For the court of one country to prosecute the ruler of another is unprecedented. But that is what happened two weeks ago in a historic first, when an ad hoc tribunal in Dakar, Senegal, sentenced Hissene Habré to life in prison after finding the former president of Chad guilty of international human rights crimes. The tribunal was established in Senegal with the help of the African Union and applied international criminal law, including the treaty against torture.

The verdict sends a powerful message to African dictators, putting them on notice that they might share Habré’s fate. It encourages human rights advocates seeking to bring to justice African leaders who have allegedly committed crimes against humanity. Until now, such indictments and prosecutions have taken place at the International Criminal Court or special tribunals in The Hague, Netherlands, far away from where the crimes took place. For example, the former president of Liberia, Charles Taylor, was sentenced to 50 years for war crimes in neighboring Sierra Leone. Finally, the case also gives hope to victims of serious human rights abuses inflicted by their own governments.

Now 73, Habré — who ruled Chad from 1982 to 1990 — is called the “African Pinochet” for his brutality and cruel suppression of anyone suspected to be a dissident. A truth commission created by his successor government reported that his administration had killed more than 40,000 people and tortured, detained, raped, summarily executed, or imprisoned hundreds of thousands.

Habré was first indicted in 2000 by a judge in Senegal, where he was living in luxury after his ouster, but the court found that the crimes charged had not been codified there and the case was thrown out. The survivors took the case to Belgium, invoking universal jurisdiction, under which national courts are authorized to try cases of the most serious crimes against humanity even though they had not been committed in that nation’s territory and even if they are committed by government leaders in other states.

Senegal refused to comply with repeated requests from Belgium to extradite Habré. After several legal twists, the International Court of Justice in The Hague called upon Senegal to either prosecute Habré or extradite him. More than 90 victims and witnesses testified, and there was ample evidence from the thousands of files found in the old police buildings that included lists of prisoners and deaths in detention. The dreaded secret police unit he created carried out some of the worst abuses against suspected political opponents. Habré was found guilty of crimes against humanity, summary executions, torture and rape.

It must be noted that Habré had come to power with U.S. support. Despite his dismal human rights record and brutal repression of dissidents, the U.S. continued to give Chad millions in military and economic aid. This was acknowledged by Secretary of State John Kerry, who welcomed the verdict, saying, “As a country committed to the respect for human rights and the pursuit ofjustice, this is also an opportunity for the United States to reflect on, and learn from, our own connection with past events in Chad.”

The trial is indeed a turning point for Africa, which has failed to hold accountable repressive leaders like Sudan’s Omar al Bashir, who has been indicted by the International Criminal Court for genocide, war crimes, and crimes against humanity in Darfur but still travels freely in Africa. Habré’s conviction is a fitting tribute to those who have fought for generations to extend the end of impunity into Africa for perpetrators of grave human rights violations. It moves forward the efforts that began at Nuremberg after World War Il to bring Nazi leaders to justice for war crimes and crimes against humanity, and expanded with the creation of the International Criminal Court in The Hague.

Ved Nanda (vnanda@law.du.edu) is Thompson G. Marsh professor of international law and director of the Ved Nanda Center for International and Comparative Law at the University of Denver Sturm College of Law. This article was originally posted as a Denver Post Op-ed, which can be found here.

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Photo Credit: Witness.org

ICC Convicts Former President Bemba for Atrocities in Central Africa

Photo Credit: Witness.org

Photo Credit: Witness.org

On Monday March 21, 2016 the International Criminal Court (ICC) convicted former Congolese vice-president Jean-Pierre Bemba of war crimes and crimes against humanity committed during the 2002-2003 situation in the Central African Republic (CAR). Bemba was convicted by the ICC of two counts of crimes against humanity, for murder and rape, and three counts of war crimes, for murder, rape and pillaging. Most importantly though, this is the first trial at the ICC to focus on the use of sexual violence as a weapon of war, and the first time a defendant has been convicted for command responsibility for failing to take action to stop crimes he knows are being committed by his troops. More than 5000 victims participated in the hearings, the highest number in ICC history.

In 2002 Bemba was commander-in-chief of the Movement for the Liberation of Congo (MLC) when then president of the CAR, Ange-Felix Patasse, requested his assistance in putting down a coup waged by a group of soldiers loyal to former CAR president Kolingba. In coordination with Colonel Qaddafi of Lybia, Bemba sent 1,500 MLC troops to the CAR, who were accused of committing more than 1,000 rapes, in addition to widespread murder and pillaging.

Article 7 of the Rome Statute, which provides for the establishment and administration of the ICC, defines crimes against humanity as “acts when committed as a part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” Article 7(g) identifies “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity” as acts which may be invoked to constitute the actus reas of a crime against humanity. Article 8 defines war crimes as grave breaches of the Geneva Convention, including acts against persons or property, when committed as part of a plan or policy or as a part of a large-scale commission of such crimes. Under this definition, the over 1,000 rapes committed by the MLC troops, rises to the level required by the statute in a non-international conflict, and the actus reas of rape is expressly included in 8(2)(e)(vi). 8(2)(f) does limit the situations in which rape or sexual violence can be considered ample actus reas to convict of war crimes to those where there is a protracted armed conflict, hence why this application has never previously been appropriate. In this case, however, the widespread use of rape as a weapon was in evidence from the over 5,000 victim participants.

Commentators have been especially impressed with prosecutors use of Article 28(a) of the Rome statute which allows for a military commander to be held criminally responsible for crimes committed by forced under their control when the military commander knew or should have know that the forcer were committing those crimes, and when that commander failed to take all ‘necessary and reasonable measures within his or her power’ to prevent the commission or to submit the matter to authorities for investigation. Under this Article, the ICC tribunal convicted Bemba as a result of acts committed by his troops which he did not personally commit. This precedent has been heralded by a host of human rights organizations including Amnesty International who said that this verdict, and the principles it espouses, represent a “historic moment in the battle for justice for victims of violence in CAR and around the World.”

This verdict has assured justice for thousands of victims of sexual violence perpetrated as a weapon of war, and the ICC, a beleaguered institution, can now proudly claim to hold commanders responsible for the actions of their troops. However, this investigation began nearly ten years ago, the trial took four years, and the verdict came almost two years after close of arguments. The ICC handles cases which are complex and sensitive, often taking a long time to go through evidence and allow for victim participation. Critics of the court cite its long lag-times, exorbitant costs, and lack of international participation as reasons why it has been a failure at bringing perpetrators, especially those outside of Africa, to justice. Hopefully those critics concerns are at least partially dissuaded by the conviction of Jean-Pierre Bemba, because this verdict is more than just another conviction of a despised African war-lord. By convicting Bebma of rape as a result of command responsibility under Article 28, it is a huge step forward towards strengthening the enforcement of the principles that lay at the foundation of the ICC.

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Hospital Taliban Fire

25 Dead, 1 Apology, No Clear Answers: Has the U.S. Committed a War Crime?

Hospital Taliban Fire
Fires burn in the MSF emergency trauma hospital in Kunduz, Afghanistan, after it was hit and partially destroyed by aerial attacks on October 3, 2015.

In the wake of the Taliban’s takeover over the Afghan city of Kunduz last week, United States and Afghan military forces have waged a fight to reclaim control of the city. On Saturday, September 3rd, the U.S. bombed a Médecins Sans Frontières/Doctors Without Borders medical facility in Kunduz. The facility, the only facility of its kind in that region of Afghanistan, regularly served thousands of patients for free. Médecins Sans Frontières has called for an independent investigation into what they have deemed a “war crime.” This tragedy has led many in the general public to wonder: What qualifies as a war crime?

The International Criminal Court lists the definition of a war crime as, “grave breaches of the Geneva Conventions and other serious violations of the laws and customs applicable in international armed conflict and in conflicts “not of an international character” listed in the Rome Statute, when they are committed as part of a plan or policy or on a large scale.” It goes on to list prohibited acts, which include: “intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals.” The Geneva Conventions protect war victims and make up the foundation of international humanitarian law.

If a war crime includes intentionally attacking hospitals, the question becomes: Did the United States intentionally hit the medical facility in Kunduz? The response from U.S. officials has included a variety of conflicting explanations. Initially, the U.S. military said Taliban fighters were directly firing on U.S. service members in the vicinity of the hospital and a hospital may have been struck. There were also reports that Taliban members had taken up positions within the hospital and were using it as a firing position.  The next explanation, from General John Campbell, commander of U.S. forces in Afghanistan, stated that Afghan forces had called for air support from the U.S. military, admitted that the hospital had in fact been struck accidentally and was “a U.S. decision made within the U.S. chain of command.”

With conflicting explanations and a multitude of unclear facts, determining whether this was in fact a war crime requires a clear understanding of the factual happenings on the ground and the decisions leading up to the strike on the hospital. Médecins Sans Frontières has called for an independent investigation of the attack, saying that an independent investigation would help ensure “maximum transparency and accountability.” It is currently advocating for the first ever use of the International Humanitarian Fact-Finding Commission. The Commission was established by the Protocols to the Geneva Conventions and serves to investigate grave breaches and serious violations of international humanitarian law. It has never before been called upon to investigate. Meanwhile, President Obama has apologized to Médecins Sans Frontières and assured it that the U.S. is conducting a joint investigation with NATO and the Afghan government.

Until we know whether or not the attack on the Médecins Sans Frontières hospital was truly an accident and whether or not there were Taliban fighters using the hospital as a launching ground for attacks, there cannot be a definitive answer as to whether these attacks qualify as “war crimes” under international humanitarian law. If the answer becomes clear, it will only lead to more questions. What next? How do we prevent this from happening again? How will the U.S. respond to Médecins Sans Frontières, the families of those ten adults, three children, and twelve Médecins Sans Frontières staff who were killed? Only time, and a truly transparent investigation, will tell.

Julie Marling is a 3L at the University of Denver Sturm College of Law and is the Training and Cite and Source Editor on the Denver Journal of International Law and Policy.

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Defending the Damned (Part 1 of 3)

This blog series was originally part of a reflection the author wrote comparing international criminal defense with domestic defense. To read the original post, visit the author’s personal blog at http://lawphilosophyart.blogspot.com/2014/03/defending-damned-closer-look-at.html. Part I of this blog series will explore Francois Roux’s defense strategy at the Extraordinary Chambers in the Courts of Cambodia (ECCC, or Cambodia Tribunal) during the trial of Duch, who oversaw S-21, the infamous prison camp where thousands of Cambodians were held for interrogation and torture during the Khmer Rouge regime that devastated Cambodia in the 1970s. Part II will explain how the Special Tribunal for Lebanon (STL) was created, in order to lay a background for understanding the methods of defense now being used at the STL. Finally, Part III will compare Francois Roux’ defense strategy at the STL, where he currently oversees the defense team.

Part I: François Roux’s Defense of Duch at the ECCC

François Roux is currently the head of Defense at the STL, but prior to that he has vast experience in international defense. He categorizes himself as a disciple of Gandhi, defender of those who practice civil disobedience, and believer in non-violence. One of Mr. Roux’s moving yet tactical skills is his ability to bring out the humanity of the Defendant. During his closing argument to the court for Duch, he stated:

The task of the lawyer, particularly of a defence lawyer, who is being charged with such serious crimes is not easy, however, we always hold one major advantage over the Co-Prosecutors. They have all of the means possible at their disposal. They have a full team. They have experts. They have assistants. They have everything that they could possibly ask for, but they lack one thing. That is contact. They lack contact with the accused person.

We the defence, we meet with the accused person in his prison cell in private moments where he is able to speak openly, where he is able to speak freely from the heart. We see what you, Mr. And Ms. Prosecutor, are unable to see. We see an accused person who tries to hide himself discreetly and when he collapses in tears there is no one other than his own lawyers who are able to witness the tears that he sheds on the graves of the children who died. That is what we bear witness to. And that is what I testify to today.

Francois Roux

Francois Roux has defended notorious war criminals

In the film The Khmer Rouge and The Man of Non Violence, Mr. Roux explains “I always try to seek out the man in the torturer.” Mr. Roux’s strategy with Duch was to get him to come to terms with the reality of what he had done, to get him to a place where he was able to say something meaningful to the victims of the tragedies in Cambodia.

There was a technical hang-up, however. The concept of the plea is one of the major differences between criminal procedure under common law and procedure under the civil law system. In civil law jurisdictions, there is generally no concept of a plea of guilty. A confession by the defendant is treated like any other piece of evidence, and a full confession does not prevent a full trial from occurring or relieve the plaintiff(s) from its duty of presenting a case to the trial court.

And so, in an astounding, almost comical conclusion to Duch’s trial, his two defense counsels, one Cambodian –Kar Savuth –and one international –Mr. Roux –both entered different pleas for the Defendant. Kar Savuth asked for an acquittal, perhaps because he was fearful of government retaliation against himself, but also in part due to the technicality of apparently having to work within the civil law system. To Mr. Roux, the cathartic moment of Duch admitting to his guilt, for Duch himself, for the victims, and for Cambodia, was what he was working for the entire trial. Kar Savuth’s request for acquittal raised doubts about his admissions of responsibility and his pleas for forgiveness. Yet Mr. Roux also blamed the Prosecution’s theory and method during the entire trial for the shocking and tragic confusion:

So it is true that before this Court we have a civil law system. The guilty plea does not exist as such, but I should like to know what could have prevented any attempts to promote such a plea because it is stated in our Internal Rules that what is not provided for in national law can be sourced from international  law.

 So what was the obstacle? Well, the obstacle was a missed opportunity on the part of the Office of the Co-Prosecutors which missed its date with history; I stated it here. It led to frustrations as expressed in public opinion amongst the victims who were told incessantly, he is not telling all. This was the approach that was used even as late as yesterday in this courtroom. They said he is not saying everything. What he is saying will aid reconciliation but little. This is what I heard. What a waste. When you have an accused who from the very outset, from the very first day, told the Investigating Judges, “I am guilty. I am responsible for all the crimes” — but no.

The prosecutor decided to submit a conventional, traditional argument whose underlying philosophy is as follows. This man is a monster, even though they said “I am not saying this man is a monster”. In fact, the attempt was made to portray him as such. And they said “Lock him up for 40 years and society will be the better for it”, but when will the prosecution admit that these are words that have been heard before. These are clichés and that we must go further, we must try to understand the mechanisms that lead a man, who is a decent man by all accounts, becomes a torturer.

Mr. Prosecutor that is what I would have liked to hear you say because the same thing was said in Nuremberg. They said, “These people are monsters, we’re going to condemn them to death and this will set an example”. But after Nuremberg there was Cambodia, wasn’t there? And then there was Rwanda. So what is the example that you wish to show? What use is it in your conventional arguments? You do not deal with the problems. Well, we shall deal with them. We of the defence shall deal with the problems.

In the film, Mr. Roux appears quite crushed that this did not happen as fluidly as he had wished. However, there were many other incredible implications in Mr. Roux’s closing argument. Mr. Roux appealed to the humanity that runs through all of us, and the implications each of us has in the atrocities like what happened in Cambodia, what we all have done to create a world where a man could be forced to chose between obeying his superiors and committing such atrocious acts, or being killed himself, and endangering the lives of his family and loved ones. His words are some of the most inspiring I have ever heard or read. I would encourage anyone to read them, but I have selected some of what I consider the most powerful to reproduce here.

Mr. Roux based his theory of defense not on the crimes that Duch had commited at S-21, but on the crime of obedience.

 The crime that Duch committed and is according to me, and above all, a crime of obedience. Mr. Prosecutor, we said that we did not wish our client to be the scapegoat. I would like it to be clearly understood what is meant when I use the expression “scapegoat”. As you well know, scapegoats in societies, including societies of old, was loaded with all the evils, with all the suffering of a society. All of this was loaded onto the head of a goat. Amongst the Hebrews, the goat was sent into the desert so that the social group could be reformed because they would say, “This goat bears all our wrongdoings.” That is the scapegoat.

As long as the prosecutor’s submissions will focus on this man as a scapegoat, you will not advance by so much as a millimetre in the development of humanity.

“This will not happen again,” they say. Well, let me tell you it will happen as long as we haven’t brought up with lucidity the phenomena that lead a normal man to become one day an executioner…To find the source of evil that was implemented each and every single day in S-21, we didn’t have to look any further than ourselves. This is terrifying, but this is far removed from the very easy explanation of identifying a scapegoat.

Mr. Roux weaved philosophy, religion, literature –all of the things that bring us together as humanity, through his closing argument. In his final lines to the court, Mr. Roux said this:

 Here is a story — a story that is told by Cambodians, but a story that is universal. It is the story of a wise man. It could be the story of an old imam, an old rabbi, a philosopher, a priest or a pastor or — in this country — a Buddhist monk. He teaches his disciples and asks them, “How do we know that we are moving from night to day, from the shadows to the light?” So one disciple says, “When we begin to distinguish the colour of the mango leaves.” Another one says, “When you begin to see the cardamoms in the distance.” No. And yet another one says, “When you can recognize your brother in another’s eyes.”

Duch, all your victims were your brothers and sisters in humanity. You said that you had been cowardly and that you did not go to see them while they were in detention. In human eyes, you will never be absolved of these crimes and the eyes of those you did not wish to meet will remain on you forever. But what about us, Your Honours? Are we prepared to look Duch in the eye and see him for the fellow human that he is? And the final question; through your ruling will you bring back Duch into the fold of humanity?

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Critical Analysis: Central African Republic Sees International Intervention

On December 5th, the UN Security Council unanimously authorized the deployment of French troops and the African Union Mission in Central Africa (MISCA) with the hopes of stemming the sectarian violence that is plaguing the Central African Republic.  On the 9th, the 1,600 French troops will attempt to begin disarming the fighting groups and restore order.  French Defense Minister is quoted saying that “first we’ll ask nicely, and if they don’t react, we’ll do it by force.” The Security Council also made it clear that the UN should be prepared to further bolster efforts in the CAR.  Provisions included requests that the Secretary-General undertake contingency preparations for the transformation of MISCA into a peacekeeping operation within three months.


French troops will begin efforts to restore order to the Central African Republic caused by violent Seleka rebel fighters. Image: AFP

In March of 2013, the existing government was ousted by the Seleka rebels when they seized the capital and leadership.  Since that time attacks on Christians and those loyal to the former Bozize regime by the predominantly Muslim Seleka forces have increased in number.  In response, self-defense groups known as “anti-balaka” have formed and perpetrated retaliatory violence.  Consequently, an environment of fear prevails throughout the CAR and the populace is divided along religious lines.  In the day preceding the passage of the UNSC resolution, more than 100 were killed in the capital of Bangui alone.  According to the Red Cross, an additional 394 were killed on the following Sunday.

Atrocities committed by both sides of the conflict rise to the level of war crimes according to investigators from the UN and Human Rights Watch. The problems confronted by the Central African Republic are compounded by the absence of stability and central governance.  The African Union Mission MISCA and the potential for an expanded UN peacekeeping mission are directed at building local capacity.  The United States has made a $40 million dollar financial contribution to MISCA because of this concern specifically as seen in a statement from US Secretary of State John Kerry, “The United States sees no evidence that the CAR transitional government has the capacity or political will to end the violence, especially the abuses committed by elements of the Seleka rebel alliance that are affiliated with the government.”

The coming weeks and possibly months will demonstrate whether the French forces can help bring stability to the CAR.  Some of the problems confronted by peacekeepers will be dealing with the religious tensions, the potential for trafficking in conflict minerals, and trying to neutralize largely de-centralized fighting forces.  The UNSC asked that all States take measures to prevent the sale or transfer of weapons, supplies, and funding to fighting groups in the CAR.  Regardless of what manifests in the future for the Central African Republic, a clear international mandate has been expressed with the hopes of restoring order, stopping the ongoing violence, and preventing future conflicts.

Jordan Edmondson is a 2L and a Staff Editor for the Denver Journal of International Law and Policy.

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Critical Analysis: Kenya’s Deputy President William Ruto to be Tried at the International Criminal Court, and the ICC to be tried by the Kenyans

William Ruto, Kenya’s Vice President appeared before the International Criminal Court (ICC) for the first time on September 10, 2013 for his trial.  Ruto is charged with crimes against humanity in response to the ethnic cleansing that occurred shortly after the 2007 presidential election.  During this cleansing, more than 1,000 people died and 600,000 people were homeless.  Along with Ruto, two other Kenyans are being tried for the same crimes: a radio journalist named Joshua Arap Sang and Kenyan President Uhuru Kenyatta, who during the 2007 election supported the opposing political party, former President Kibaki.


William Ruto, Kenya’s Vice President appears in the ICC for trial.

Ruto was the first of the three Kenyans to appear in court, and specifically faces charges of murder, persecution, and forcible transfer of people.  He is also charged as being a co-conspirator with Sang for orchestrating the murder and deportation of political supporters of the rival political party in the Rift Valley region.  He pleaded not guilty to all counts, and has assured his supporters that the case against him is fiction since the case is built upon a conspiracy of lies.   Despite Ruto’s calm and almost cavalier attitude about the case, Chief Prosecutor Fatou Bensouda opened by explaining that Ruto’s actions resulted in cold-blooded, deliberate murder and the relocation of thousands of people, decimating Kenya as well as the world’s perception that Kenya was a peaceful country.  Bensouda is expected to call forty witnesses to try her case.  Consequently, this case is far from decided.  It is estimated to last months, if not years.

Additionally, another type of trial is occurring during the prosecution of Ruto.  Ruto’s case has brought forth questions of whether the ICC is as unbiased and credible as it used to be.  The International Criminal Court is an independent court located in The Hague, Netherlands.  It is intended to be a court of last resort and only tries people for the most serious crimes, which include crimes against humanity, and it does not target specific jurisdictions.  Notwithstanding the ICC’s claims to unbiased, it had been claimed by African countries that the ICC focuses on African countries and avoiding war crimes in other hotspots.

The credibility and effectiveness of the ICC has also been called into question.  The ICC has a low success rate in cases where it is trying public officials for crimes against humanity, and Kenyan support for this case has dramatically diminished.  First, this case is unprecedented in that Ruto, and eventually Kenyatta are still acting public officials.   Ruto will be the first serving politician to be tried in the ICC.  Ruto was re-elected as Kenyatta’s Vice President in 2012, around the same time that the ICC announced that Ruto would face charges.  This continued support for Ruto was evident by the number of Ruto supporters packing the gallery.  This support has even gone so far as to the Kenya’s parliament that recently passed a vote to withdraw from the ICC, symbolizing the dissatisfaction that Kenya has with the ICC.  The other cases where the ICC has had successful convictions only involved previously ousted, unpopular leaders.  Consequently, the ICC is fighting the public opinion of Kenya in this case.

Although the public opinion of the case and the ICC does not have any influence on the actual trial or the evidence presented, the ICC will have an uphill battle in the coming months to convict Ruto of the alleged crimes against humanity given the unpopularity of the case.  Additionally, this case must also prove the unbiased nature and the competence of the ICC to the Kenyan country, the African continent, and the world.  In short, not only must the prosecutor prove her case, but the ICC must indicate through this trial that the ICC can effectively try an alleged and acting politician solely for his crimes against humanity to bring to justice the deaths of Kenyans, demonstrate that political leaders are not above justice, and to bring sustainable peace back to Kenya.

 Katelin Knox is a 3LE and Sutton Editor for the Denver Journal of International Law and Policy.

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Islamist activists protested against the prosecution of their leaders on charges stemming from a war of independence 40 years ago. (NDTV)

Critical Analysis: Is the Legitimacy of the Bangladesh Tribunal at Stake?

Islamist activists protested against the prosecution of their leaders on charges stemming from a war of independence 40 years ago. (NDTV)

Islamist activists protested against the prosecution of their leaders on charges stemming from a war of independence 40 years ago. (NDTV)

The International Crimes Tribunal in Bangladesh is an ongoing court mandated to investigate and prosecute individuals who committed atrocities during Bangladesh’s war of independence with Pakistan in 1971.

On February 5, 2013, the Tribunal sentenced Jamatt-e-Islami chief Abdul Kader Mullah to life for his alleged role in crimes committed during the 1971 independence war. Mullah was convicted on five of six counts, including murder and rape as crimes against humanity. The ruling sparked nearly two weeks of angry mass protests throughout Bangladesh resulting in parliament amending a law that will now allow the state to retroactively appeal against the life sentence and seek the death penalty.

Under the amended law, the government and others can now appeal against verdicts at the International Criminal Tribunal. The amendment also gives powers to the special tribunal to prosecute organizations or political parties who were allegedly involved in the war crimes. As eight of the accused are Jamaat party leaders, many within the party believe the change in the law is nothing but an attempt by the government to destroy it. However, the remaining two accused are members of Bangladesh Nationalist Party.

According to the BBC, the amended law puts the political rivals of the current Prime Minister on edge. As Prime Minister Sheikh Hasina made prosecuting war crimes a key goal of her government, critics have accused the government of pursuing political vendetta through the tribunal. Furthermore, as the majority of the accused are from Jamaat Party, if the party is indicted and then found guilty, the party can “be banned” from politics.

Another critique of this amended law and its effect on the tribunal is that it falls below the international standards required for a fair trial. According to Human Rights Watch, retroactive legislation violates fair trial standards because it undermines the work the Tribunal has done thus far. Although the government, including the Law Minister, stated that it had been drafted to ensure equal rights for both the government and the convicted, the law still grants extensive power, retroactively, to the prosecution to appeal decisions by the Tribunal.

The impact the amended law will have on the Bengali political climate or the effectiveness of the Tribunal is unclear. Even though government supporters believe that the amendment will positively affect the Tribunal and allow for fairer trials, many believe that the amendment will cause more hardship for the Tribunal long-term. For example, as the legitimacy hangs in the balance, Human Right Watch notes that some defense witnesses have decided not to go to court and that there is concern the judges will be afraid to hand out sentences other than the death penalty. Thus, as one commentator succinctly put, “instead of explaining to the public the separation of powers and the rule of law . . . the government has now directly intervened in the trial process.”

Victoria Kelley is a 3L and Alumni Editor on the Denver Journal of International Law and Politics


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M23 rebels have claimed control of Goma in the eastern Democratic Republic of Congo. (DW)

Critical Analysis: Conflict Between M23 Rebels and the Congolese Army in Goma – How Must the International Community Respond?

M23 rebels have claimed control of Goma in the eastern Democratic Republic of Congo. (DW)

M23 rebels have claimed control of Goma in the eastern Democratic Republic of Congo. (DW)

Congo’s M23 rebels, a group comprised mostly of Tutsi defectors from the Congolese army, launched an uprising in Congo in the spring of 2012.  They have since been advancing in eastern Congo against the weak Congolese army.  On November 20th, the rebels invaded Goma, an eastern border city that had been thought a safe haven for refugees prior to the invasion.  Although the rebels reportedly left the city ten days later under international pressure, it is widely believed they are still present, hiding in civilian clothing.  Now residents of Goma, including already displaced refugees, are caught between the rebels and Congolese army forces.  No shots have been fired over the last two weeks, but anticipation of violence looms.

The presence of both M23 and government soldiers in Goma places most city residents in a near impossible situation.  According to UNICEF, “more than 130,000 people have been displaced in and around Goma [since the 19th of November] and are currently living either with host families or in camps and spontaneous sites, or in public buildings.”  Many of these people arrived in Goma to flee M23, while others arrived fleeing the Congolese army.  Now, rebels and soldiers alike are stealing water and supplies donated for humanitarian needs, “many schools have been looted, destroyed or occupied by internally displaced persons or armed forces,” and there are gruesome reports of soldiers kidnapping and raping local women.

The stated purpose of M23 is not entirely clear. Some claim the rebels initially left the Congolese army because they were mistreated, not paid, and going hungry.  Others believe their revolt stemmed from Congolese President Joseph Kabila’s threat in January to submit M23’s leader, General Bosco Ntaganda, to the International Criminal Court (“ICC”) for alleged war crimes and crimes against humanity.  While three suspected warlords in Congo are currently being tried by the ICC, General Ntaganda remains a leader of M23 and outside ICC custody.  Now, M23 and the Congolese government are in negotiations, with the reported goal of developing a power-sharing deal over Goma. The deal remains uncertain, however, because “M23 insists on administrative control of Goma . . . [while the] Congolese government refuses.”  This has led many refugees to seek help from the international community.

International humanitarian aid has been coming to Congo, and Goma in particular, from international NGO’s and organizations.  “In November 2012, UNICEF and its NGO partners Norwegian Refugee Council and Solidarité International supplied over 20,000 displaced households with 15 tonnes of soap and with 10-litre jerry cans in an effort to reduce the spread of water-borne diseases, including cholera. The World Food Programme provided a three-day ration of food to each household.”  UNICEF is also mobilizing funds to allow refugee children the opportunity to continue their education.

As for the United Nations, UN forces patrol camps in Goma. However, the UN presence has thus far been ineffective; as evidenced by their failure to defend the city during the rebels’ November invasion. The United Nations did impose new sanctions on M23 leaders on December 31st that will freeze their assets and bar them from travel, but the effects of such sanctions have yet to be determined.

The events in Goma do not raise the question of whether the international community should act to protect the residents – the United Nations’ “responsibility to protect” initiative established in 2005 was partly set forth to prevent the type of war crimes and crimes against humanity that are currently taking place in the Congo.  Rather, the question is exactly what actions the international community, by way of the United Nations, can and should take. Thus far, military intervention has arguably been ineffective. The possibility of now allowing the people of Goma to be governed under power shared by these two factions seems irresponsible at best, and more likely reprehensible.

Frank Lawson is a 4LE and Board Member on the Denver Journal of International Law and Policy


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Congolese Child Soldiers

ICC’s Sentence for Lubanga is a Shaky Conclusion to a Troubled Case

After ten years, the International Criminal Court issued its first verdict on March 14th, finding Congolese warlord Thomas Lubanga guilty of three child soldier related war crimes offenses: conscripting, enlisting, and using child soldiers. The trial phase of the case concluded this summer when the ICC sentence Lubanga to 14 years in July. The paltry sentence is a shaky conclusion to a case that has been troubled from the beginning.

Thomas Lubanga at the ICC

Controversy first appeared when the Prosecution team charged Lubanga only with the child soldier offenses. The prosecution surprisingly did not indict Lubanga with the substantive crimes committed by the child soldiers, namely thousands of instances of murder and rape. It is standard fare for tribunals to charge military commanders for the crimes committed by their subordinates, and so the Lubanga indictment seemed conspicuously narrow and unrepresentative of the mass crimes in the Ituri region of the Congo in which 60,000 were killed. And the indictment rankled many because of its failure to reflect the widespread commission of gender crimes.

The start of the trial saw the proceedings immediately halted over allegations of impropriety by the prosecution in its reliance on investigative “intermediaries.” It turns out the prosecution paid Congolese civilians to help them in the Congo. The “intermediaries” helped prosecutors identify and locate witnesses during its investigation, a practice which the court found in the trial judgment to be a misplaced delegation of responsibilities. The court indicated that several intermediaries may have facilitated false testimony. The prosecution did itself no favors by stubbornly defying direct court orders to disclose the names of intermediaries to the Lubanga defense team.

Congolese Child Soldiers

Despite this rough beginning, an appropriate judgment and sentence would have gone a long way toward erasing the memory of the ignominious start. But there would be no such luck. The court issue sentences of 12, 13, and 14 years for the “enlisting”, “conscripting”, and “using” counts respectively, a sentence that does not seem commensurate with Lubanga’s role in the mass slaughters or the enslavement and brutalizing of children. Adding insult to injury, the court ordered the sentences to be served concurrently and imposed an actual sentence of 14 years. The court had the option of ordering the sentences to be served consecutively — up to a 30 year maximum. Even better, it could have issued a life sentence.

The BBC reported at the time of the sentencing that Mike Davis, from the human rights organisation Global Witness, said that “the sentencing of Lubanga was an ‘important development’ but that it sounded like ‘a rather low sentence in relation to the crimes that he committed.’” Congolese government spokesman Lambert Mende “agreed that he should have been jailed for longer…” Mende diplomatically offered that the meager sentence was at least a “positive signal” for peace in the region.
In his sentence, Judge Adrian Fulford went out of his way to compliment Lubanga for his conduct and cooperation during the trial and critical of the prosecution. And Fulford lambasted the prosecution.

I am not defending the prosecution in Lubanga, but it should never be the case that a prosecutor’s conduct ever serves as mitigation in the sentence of a war criminal (just as the conduct of the defense attorney can never constitute an aggravating factor). Criminal sentences can only be issued on the merits of the case. Punitive measures against a prosecutor should be an entirely independent action.

Receiving credit for his six years of pre-trial detention, the 51 year old Lubanga has eight years remaining on his sentence – a term that could be significantly lessened for good behavior. It is a sweet deal for Lubanga, but the latest in a long string of bitter pills the Congolese have had to swallow.

At the very least, one hopes Lubanga’s deal is sweet enough to cause Sudanese President al Bashir to rethink his refusal to submit to the court’s jurisdiction.

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L. Kate Campbell

Recent Sturm College of Law Grad Credits War Crimes Class for Once-in-a-Lifetime Internship

L. Kate Campbell

My name is Kate Campbell.  I am a recent grad of the University of Denver Sturm College of Law and its International Legal Studies Program.  I’d love to take this opportunity to tell you about my current internship and how my participation in Professor David Akerson’s War Crimes Practicum led to this exciting opportunity.   On June 27, 2010, I began a six-month legal internship with the Registry branch of the Special Court for Sierra Leone (“SCSL”) in Freetown, Sierra Leone.  The SCSL was created to bring justice to victims of war crimes and crimes against humanity perpetrated in Sierra Leone in the last decade.  In March, the SCSL concluded its trial of Charles Taylor, the former President of Liberia, accused of organizing, planning, and sponsoring the atrocities in the region, and a judgment is expected in the next few months.  The Registry branch of the SCSL is responsible for supporting and coordinating all the various bodies of the court– Chambers, Prosecution and Defense – as well as for internal and external communications and victims’ assistance programs– work which continues to serve a critical role, even, and perhaps especially, during the judgment phase.  Additionally, the Registry is the body responsible for enacting legacy projects that communicate the work of the court to the people of Sierra Leone and preserve its story for posterity.

My current duties at the SCSL are twofold.  First, I assist the Registry in a general capacity.  In collaboration with the Registrar’s Legal Officer, I conduct legal research and analysis of issues relating to the functions of the Registry; review and draft internal policies and procedures; and contribute to the formulation of the Special Court’s completion strategy.  Second, I am introducing and training  members of the various court branches to a Casemap document created by DU SCOL Professor David Akerson and a team of University of Denver law students in the International Criminal Law Practicum, in hopes that various bodies of the court will soon be able to employ this valuable tool in their work.  Professor Akerson’s course – taught in the fall of 2010 and spring of 2011 – allowed students to engage in learning about international criminal law in an active manner via creation of an interactive database using CaseMap software.  Using the transcripts from the trial of Charles Taylor, former President of Liberia, accused of committing war crimes and crimes against humanity in Sierra Leone, we analyzed and condensed the transcript data into pertinent facts, highlighting all critical information, including names, dates, locations, etc, and then hyperlinked this information to both other relevant facts and the transcript itself.   The goal of this process was to make over two years of testimony easily accessible and searchable, thus potentially assisting staff working on Taylor’s case, in addition to the myriad individuals inside the court and in the general public who would find this information either useful in their work or of interest in telling their own story.  Because the work for the course was based on a current trial, and was intended for delivery to the Special Court, students were challenged to grapple with complexities of international law and the international criminal trial process in a new way.

Following the close of the spring semester, Professor Akerson presented our database to a group of SCSL staff in Freetown.  In response, they offered me a chance to come to Freetown to make further the software
and train them to use it to better facilitate the work of various branches during the judgment phase and for future use in appeals, as a tool for research, and as a part of outreach and legacy projects.  Additionally, as the Registry organizes all outreach, using CaseMap, I will help devise and implement strategies for using this interactive software to provide clear information about the trial to victims, students, and the general public. Such outreach might manifest as a resource at the Peace Museum, a legacy project currently being enacted at the SCSL, or through various civil societyorganizations that are working to better inform and heal the victims of the atrocities in the region.

I am extremely excited about the opportunity to continue this work.  I will be based in Freetown, for approximately six months, with the possibility of some travel about the country, as well as to The Hague.  I came to DU’slaw school in order to make a career of assisting the marginalized and oppressed, and while I was there, I discovered the excellent work that was being done by the ad hoc tribunals to address human rights violations of tremendous magnitude.  I am delighted
that, in exchange for providing me with this opportunity, I will be able to share the Casemap software as a resource for the court to find better and more efficient paths to create justice and to communicate its work to victims and to the global community.  In this capacity, I hope to develop new ways to use Professor David Akerson’s work to enable innovations in both court procedure and practice and in victim outreach and education.

Originally posted in www.denverlawplan.com

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University of Denver Sturm College of Law