Nazi War Criminals Still Fight to Avoid Facing Justice

By Mel O’Brien

I realise that criminals of any kind want to get away with their crimes, want to avoid facing justice and punishment. But sometimes I do wonder why, after all these years, some Nazi war criminals Charles Zentaicannot simply admit to their crimes and bring some peace to the families of victims of crimes committed over 60 years ago. I have previously written of the recent push to bring Nazi war criminals to justice. Two extraditions are currently in play, in the US and Australia. Continue reading

Political Body Language

Browns meet Obamas at Downing St

By Mel O’Brien

Body language amongst world leaders is a subject that crops up occasionally in the media. Angela Merkel has been unimpressed by inappropriate physical advances from both George W. Bush and Nicolas Sarkozy; Kevin Rudd has been chided for giving a deputy sheriff salute to George W. Bush. It was with great interest this morning that I watched the footage of the meeting of the Obamas and the Browns at 10 Downing St prior to the G20 summit in London. Continue reading

The Bashir Arrest Warrant- why is the ICC being blamed for repurcussions, actual or potential?

Why are people so deeply concerned about the issuance of an arrest warrant? What people should be deeply concerned about is retaining someone like Bashir in a position like head of state, where he is in a position to continue committing crimes. The bottom line is that Bashir is a war criminal (perhaps I should say alleged, but it is completely unlikely the ICC Prosecutor would bring such a case before the Court without certainty of the guilt of the accused). It is Bashir who has been the cause of the death, rape, torture and displacement of millions of people. How is this moment now the “critical juncture” in the peace process, when the peace process has been ongoing for years now, and in reality, is unlikely to succeed anytime soon with or without the existence of the arrest warrant for Bashir? I think we can categorically say that Bashir is not the key to peace in Sudan. It is not the ICC that has pushed out humanitarian organisations from Sudan- it is Bashir. It is not the ICC that has been involved in ongoing violence targeting civilians- it is Bashir. Why is it seen as acceptable to have such a person leading a country and being involved in a peace process, but not for such a person to be held accountable for his actions?

Yes, of course, the answer is politics, and fear of leaders that they too will be held accountable for any crimes they may commit. They cry “violation of sovereignty and immunity”. Yet international law has moved far beyond blanket application of state sovereignty and immunities. While the sanctity of these two concepts is still respected, there are limitations on their application. Achieving peace should not and does not have to equal immunity for those who have committed crimes. The ICC was established with the aim of ensuring individual criminal responsibility- accountability- for the most horrific crimes, regardless of the position of the person committing the crime. While I personally do not agree that the ICC should restrict itself to only prosecuting the big fish (and am relieved the Pre-Trial Chamber’s ruling in this regard was overturned on appeal, see Prosecutor v Ntaganda), it is still vital that the Court does ensure the biggest fish are brought to justice. It is rare that a state will prosecute a former head of state (although not entirely unheard of, e.g. Fujimori), so the ICC needs to guarantee that there is a forum in which these leaders can be held accountable. One thing that was reiterated at the arrest warrant press conference was the fact that the ICC is a judicial institution and political considerations are not in its ambit- and that is indeed the way it is and should be.

What all states should be calling for is the immediate carrying out of the arrest warrant, the arrest of Bashir. States should recognise that the removal of one of the main elements of the conflict in Sudan will be the positive step towards peace, not the retention of that element. Bashir should be under pressure from all sides, from all regions. He should be unable to travel anywhere outside of Sudan without being arrested. The Security Council should not heed (which they have not done, and hopefully will not do) the appeals of the AU and Arab League to exercise their authority under Article 16 of the Rome Statute to suspend proceedings. Instead, they should adjust the mandates of UNAMID and UNMIS to include the power to arrest any persons currently wanted by the ICC. There should be unencumbered support by all states and the UN (both the GA and the Security Council) for the ICC’s decision to take a concrete step and call for the arrest of someone responsible for past and ongoing war crimes and crimes against humanity (and genocide? This we will see on appeal, undoubtedly). It’s about time someone was held accountable for the atrocities being committed in Sudan.

One appeal dismissed, another upheld

By Mel O’Brien

This afternoon the Appeals Chamber of the ICC delivered its decision on the Prosecutor’s appeal against two decisions of the Trial Chamber in the Lubanga case. The first appeal was against the Trial Chamber’s decision of 13 June 2008, imposing a stay of proceedings on the case. The Prosecutor argued that the Trial Chamber had misinterpreted and mischaracterized the use of Article 54(3)(e), and that the imposition of a stay of proceedings was premature and excessive. Despite the Prosecutor seeking to amend the appeal to only the third ground, the Appeals Chamber saw all three grounds as inextricably linked and therefore delivered a decision on all three grounds.

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The International Law and Armed Conflict Symposium

I attended three panels, the first of which was my own panel on accountability, which was chaired by Prof. Bill Bowring of Birkbeck College, UCL in the UK. There were three papers presented, which at first glance seemed to have little in common. They addressed IHL and justice in the Colombian armed conflict (Prof. Rafael Prieto Sanjuan from the Poltifical University Javeriana in Colombia), the Draft Convention on the Criminal Accountability of UN Officials and Experts on Mission (my own paper), and whether criminal accountability or civil liability is a more effective approach for redressing environmental consequences of armed conflict (Tara Smith of the Centre for Human Rights, University of Galway, Ireland). However, Prof. Bowring brought these together by noting how the issue of accountability can be problematic in many different areas of IHL, with immunity and impunity remaining pervasive in different fields. He pointed out that each of the papers demonstrated the existence of idealistic law making, which is in stark contrast to the political reality and the application of such laws. This could be seen in the difficulty experienced in Colombia in implementing laws in accordance with the Rome Statute of the ICC and that state’s efforts to ensure accountability for violations of IHL during its ongoing armed conflict; the problems within the UN and its member states of ensuring accountability for all categories of peacekeeping personnel for crimes committed whilst engaged in a peace support operation; and the lack of action taken over history for environmental crimes committed in armed conflicts such as in Vietnam (the defoliation of forests using chemical agents) and Iraq (the burning of oil fields).

The second panel I attended was on implementation and weapons. The papers were all starkly different in their subject material. One took an overall introduction to international criminal justice. Unfortunately, this paper was very basic, and did not particularly offer up a challenging discussion among the participants. Another paper addressed the impact of the US military commissions on the development of IHL. This paper was particularly interesting, and it is a shame there was not more time to develop the points made by Dr. Poretto from the University of Western Sydney in Australia. Dr. Poretto questioned the weight that should be given to decisions made by first instance military judges in relation to the development of IHL internationally, determining instead that such a judgement does not have the importance of (for example) a judgement on appeal to the Supreme Court. The third paper in the panel was delivered by Bonnie Docherty of Harvard Law School, who is an expert in cluster munitions. through her work with Human Rights Watch She was involved in the drafting of the recently adopted convention on cluster munitions, and gave a very informative presentation on the convention, including its unique and breakthrough aspects such as the requirement for sending states to provide assistance to victims of cluster munitions.

The final panel I attended was on peace, security and justice, and considered a couple of very relevant and topical issues: the relationship between the ICC and truth commissions (Madalena Pampalk, University of Vienna, Austria), and Article 16 of the Rome Statute in relation to Uganda (Yassin M’Boge, Queens University Belfast, UK). Both papers enabled discussion about controversial aspects of the Rome Statute and the potential challenges for application of provisions that have not yet been applied by the Court- or the Security Council. Ms M’Boge emphasised that justice and peace do not have to be mutually exclusive, and that the involvement of the ICC in the Ugandan situation does not mean that peace cannot occur. Ms Pampalk looked at the examples of truth commissions in Sierra Leone and Timor Leste in order to analyse the potential of the ICC to work with truth commissions, and what potential agreements such bodies could make, such as the sharing of information.

Aside from the scholarly stimulation, the Symposium was a surprisingly social event too. The emphasis on participation by early career academics and PhD candidates meant that there was no real separation of groups of people at the social events, and thus there was a very positive and communal sentiment amongst the symposium attendees. The dinner was enjoyed by all, with a number of attendees staying quite some time at the bar afterwards!

The only downside of the Symposium turned out to be the no-shows of previously scheduled experts Nigel White and Nico Shrijver, but it was a minor disappointment in a very enjoyable and interesting Symposium. We look forward to the next one!

Law of Armed Conflict Symposium reminder

By Mel O’Brien  

Just a reminder that the Bristol Law School, University of the West of England Law of Armed Conflict Symposium is on in Bristol this week. I mentioned this back in June, and time has flown so it’s now the symposium week! As I mentioned before, I’m giving a paper in the "accountability" panel on the first day, where I will be discussing the Draft Convention on the Criminal Accountability of United Nations Officials and Experts on Mission. Peace TankThere are nine panels, all dealing with interesting subject areas such as reforming the laws of war, children, and environment and natural resources. Invited speakers include Bill Schabas, Nico Schrijver, Ademola Abass, Bill Bowring, Gerd Hankel and Nigel White. There is a welcome reception and buffet on the Wednesday night, and an optional dinner on the Thursday night. Looking forward to seeing you there if you are going!

 

First appearance of Radovan Karadzic confirms theatrics will not be absent from former leader’s trial

 By Mel O’Brien

Karadžiæ waives right to counsel and accuses Richard Holbrooke of wanting him dead; Prosecution aims to amend indictment

The initial appearance of Radovan Karadžiæ was as theatrical as could be expected. David Crane has written that the reason war crimes suspects choose to defend themselves in court is for reasons of control, politics and disruption. It certainly doesn’t seem to be any different with Karadžiæ, as his first appearance clearly shows he has no knowledge of legal procedure.

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Update on Australia’s refugee policy

By Mel O’Brien

A month ago I wrote about the positive progress of the Australian government under Kevin Rudd. I mentioned in particular the changes the Rudd government has made to refugee policy, but still recognised the need to address the issue of mandatory detention of refugees. Well, the government was listening! This week Chris Evans, the federal Minister for Immigration and Citizenship made a speech at the Australian National University in Canberra outlining the government’s ‘New Directions in Detention- Restoring Integrity to Australia’s Immigration System’. Continue reading

How refreshing a change in leadership can be

By Mel O’Brien

I wanted to take an opportunity to give kudos to the current Australian government, led by Prime Minister Rudd. Rudd.jpeg I was lucky enough to be in Australia when the elections were held in November, so I got to go to the polls and vote, and attend an election party with friends. We sat at the party, drinks in hand, hoping and wishing for a change that was so desperately needed. For far too long we were ruled by John Howard, a little man with internationally embarrassing policies. As an international lawyer, there have been many moments when I was mortified by the policies of the Howard government. For example, I remember taking refugee law for my LLM, and having an entire 2-hr lecture devoted to the Australian ‘Pacific Solution’ refugee policy (that being where refugees are shipped to a Pacific island and detained in an ‘off-shore detention centre’). The Howard government had so many people believing refugees were bad people- ‘queue jumpers’, who didn’t wait their turn to immigrate like all good people should. Howard refused to ratify the Kyoto Protocol, refused to apologise to the indigenous people of Australia, and sent troops to Iraq and Afghanistan like the good little obedient US-servant he was. Happily, the change that we were all hoping so much for at that election party has happened! How the champagne flowed as we watched Rudd emerge to give his victory speech. Let’s just take a look at what the Rudd government has done in just over 6 months in power: Continue reading