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!

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.

Continue reading

ICC News – OTP to charge Sudanese President with Genocide

By Björn Elberling

The Press Advisory on the ICC website reads somewhat unspectacularly, "ICC Prosecutor to present second case to the Judges in the Darfur situation on 14 July." Today, the Prosecutor has announced that the person he will be charging is Sudanese President Omar Hassan al-Bashir, and that the charges will include genocide (see MSNBC article). Certainly an interesting development on the eve of the 10 th Anniversary of the Rome Statute. More as things develop further. H/T: Kevin Jon Heller at Opinio Juris.

ECHR news: ECHR judgment on evidence obtained through threat of torture in Germany

By Björn Elberling

pic ECtHR.jpg Since Tobi is currently summerschooling in The Hague, it probably falls to me to announce ECHR decision in the case of Gaeffgen v. Germany. Magnus Gaeffgen was convicted for the kidnapping and murder of an 11 year old child; during the initial investigation, German police had threatened him with torture to get him to reveal where he had hidden the child, who they believed to be alive but in danger of dying. The decision is here, insightful commentary at the ECHR blog and at Opinio Juris.

ICC Stays Proceedings against Thomas Lubanga Dyilo: Secret Evidence Revisited

By Tobias Thienel

splash_logo.gif Trial Chamber I of the International Criminal Court has, as of last Friday, struck a blow to the Prosecutor, by staying – possibly forever – the Court’s most advanced case. Moreover, the Trial Chamber didn’t exactly hold back in its criticism of the Prosecution. It held that the Prosecution had seriously violated the defendant’s right to a fair trial, and further that the violation had ‘ruptured [the trial process] to such a degree that it is now impossible to piece together the constituent elements of a fair trial.’ Now that’s tough. The decision centres in part on an issue I have previously written about, the fair trial problem posed by secret evidence kept from the defendant. The problem, in the barest outline, was this: the Prosecution has concluded agreements with the United Nations and other actors to obtain evidence against the defendant, under which any evidence obtained was not to be disclosed to anyone other than the prosecutors. This meant that no such evidence could be either (a) disclosed to the Defence, or (b) shown to the Chamber so it might decide on disclosure. This obviously applied to all evidence obtained in this way, whether tending to prove the defendant’s guilt, or exculpatory. The Prosecution claimed a power to do this under Article 54(3)(e) of the Rome Statute of the ICC. That provision authorises the Prosecutor to ‘agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of obtaining new evidence, unless the provider of the information consents.’ The Defence now contended that Article 54 did not in fact authorise the Prosecution to do as it did, and that its chosen approach meant that the Prosecution would fail in its obligation to disclose all exculpatory evidence to the Defence, which it has under Article 67(2) of the Rome Statute. Continue reading

ICTR News – Trial Chamber Denies Request for Transferral to Rwanda

munyakazi.jpg By Björn Elberling

This seems to be a busy week in international criminal law. Yesterday, ICTR Trial Chamber III denied a Prosecution request to transfer the case of Yussuf Munyakazi to a Rwandan national court under Rule 11bis of the Rules of Procedure and Evidence. The decision is available here. The main worries of the Trial Chamber were that Rwanda’s penalty structure does not meet "internationally recognised standards" (Rwanda has abolished the death penalty, but has replaced it with lifelong imprisonment in isolation) and that Munyakazi might not receive a fair trial. The Chamber was worried about the independence of the judiciary in the face of government pressure (interestingly, the Chamber explicitly referred to the Barayagwiza "Reconsideration" Decision, thus coming close to officially accepting that that Decision was the result of government pressure – see para. 41 of the decision); and it feared that the Defence might be unable to obtain defence witnesses and secure their safety. The Chamber does, however, acknowledge the "positive steps" undertaken by Rwanda and states that "the Tribunal will hopefully be able to refer future cases to Rwandan courts" (para. 67). The Prosecution has 15 days to appeal appeal the decision; I would be surprised if they do not do so. (See also, somewhat related, Kevin Jon Heller’s post on the Prosecution "disowning" Human Rights Watch) Continue reading

Brief Lowdown on the European University Institute ICC Conference

By Mel O’Brien

Last weekend I went to another conference, once again in Italy (hence my absence lately from blogging of any issues of real substantiality!). This conference was held at the European University Institute in Florence, and was titled "Fighting Impunity in a Fragmented World- New Challenges for the International Criminal Court". schif-path.jpg Firstly, let me comment on how spectacular the location was! The EUI is located in several different villas on a hill in Florence, and the conference was held in one of these villas and its chapel. The views were stunning, and the villa even has a beautiful sculpted garden and its own soccer field! A very nice place to work and study, indeed! Continue reading

SCSL News: Appeals Chamber Judgment in CDF Case

SCSL courthouse.jpg By Björn Elberling

The Appeals Chamber of the Special Court for Sierra Leone today announced its judgment in the case against two former leaders of the Civil Defence Forces, Moinina Fofana and Allieu Kondewa. The two had, in first instance, been found guilty of a number of war crimes, but acquitted of crimes against humanity charges, and had been sentenced to 6 and 8 years’ imprisonment. Justice Thompson had dissented from the judgment, stating that he would have acquitted both under necessity as they were fighting to reinstate the rightful government. The Appeals Chamber overturned some of the convictions for war crimes, but also entered new convictions for crimes against humanity. It increased the sentences to 15 and 20 years, stating inter alia that political motives of Fofana and Kondewa and their fighting for a "just cause" was not a mitigating factor for the purposes of sentencing. There were apparently a number of dissents on various issues. The SCSL has thus concluded two of its four trials; still ongoing are the RUF trial in Freetown, which is in the middle of the Defence case, and the trial against Charles Taylor in The Hague. Court Press Release here, more info once the judgment itself becomes available. UPDATE: The judgment, including the Dissenting Opinions, is now available here. No time for extensive comments at the moment. I’ll only point out that just like in the Trial Chamber, the Sierra Leonean judges (Justices King and Kamanda) were inclined much more favorably towards the defendants than their UN-appointed colleagues, particularly when it came to taking into account the fact that the CDF were fighting to reinstate the government (albeit not as constituting necessity as argued in the first instance by Justice Thompson).

ICC News – Arrest of Jean-Pierre Bemba for alleged crimes in the Central-African Republic

By Björn Elberling

bemba.jpg As reported by the Court already on Saturday, there has been a first arrest concerning the Central-African Republic situation before the ICC. Jean-Pierre Bemba, leader of the "Movement for the Liberation of the Congo", former vice-president of the DR Congo transitional government and losing candidate in the 2006 presidential elections, has been arrested by Belgian authorities on the basis of an arrest warrant against him issued under seal on Friday. This warrant has now been made public – Bemba is charged with six counts of crimes against humanity and war crimes, particularly rape, torture and plunder, committed in the Central-African Republic. Court Press Release here, OTP Press Release here. The Hague Justice Portal reports on the case here. A date for Bemba’s transfer to the ICC does not seem to have been set yet. In the meantime, I’ll post some initial observations on the case/situation in the following days.