International Criminal Tribunals: Justice and Politics

International Criminal Tribunals Justice and Politics Y. Beigbeder ISBN: 9780230305052 DOI: 10.1057/9780230305052 Palgrave Macmillan

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International Criminal Tribunals

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Also by Yves Beigbeder JUDGING WAR CRIMES AND TORTURE: French Justice and International Criminal Tribunals and Commissions (1940–2005) INTERNATIONAL JUSTICE AGAINST IMPUNITY: Progress and Defeat JUDGING CRIMINAL LEADERS: The Slow Erosion of Immunity JUDGING WAR CRIMINALS: The Politics of International Justice

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International Criminal Tribunals Justice and Politics

Yves Beigbeder

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© Yves Beigbeder 2011 Foreword © Paola Gaeta 2011 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6-10 Kirby Street, London EC1N 8TS. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted his right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2011 by PALGRAVE MACMILLAN Palgrave Macmillan in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan in the US is a division of St Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN: 978–0–230–29429–5 hardback This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Beigbeder, Yves. International criminal tribunals : justice and politics / Yves Beigbeder. p. cm. Includes index. ISBN 978–0–230–29429–5 (hardback) 1. International criminal courts. 2. Criminal justice, Administration of – International cooperation. I. Title. KZ6304.B45 2011 3459.01—dc22

2011007012

10 9 8 7 6 5 4 3 2 1 20 19 18 17 16 15 14 13 12 11 Printed and bound in Great Britain by CPI Antony Rowe, Chippenham and Eastbourne

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Contents

List of Presentations and Tables

vii

List of Abbreviations

viii

Foreword Paola Gaeta

x

Introduction

1

1

The Pioneers: The Nuremberg and Tokyo Military Trials

Part I 2 3

51

The International Criminal Tribunal for Rwanda

85

The Mixed National/International Courts

107

Special Panels for Serious Crimes in East Timor – Now Timor-Leste

109

5 The Special Court for Sierra Leone 6 7

9

125

The Extraordinary Chambers in the Courts of Cambodia

145

The Special Tribunal for Lebanon

170

Part III 8

49

The International Criminal Tribunal for the Former Yugoslavia

Part II 4

The International Tribunals

20

The International Criminal Court

185

The International Criminal Court (1): Statute, Mandate and Structure

187

The International Criminal Court (2): Referrals and Investigations

209

v

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vi

Contents

Part IV National Criminal Justice

245

10

247

The Iraqi Special Tribunal

11 The Delayed Trial of Hissène Habré

264

Conclusion

274

Notes

284

Bibliography

318

Index

333

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Presentations and Tables Presentations 2.1 Key figures of ICTY cases as of June 2010 2.2 Rule 11 bis, Referral of the indictment to another court (adopted 12 November 1997, revised 30 September 2002) – extracts 6.1 Laws and the agreement on the establishment of extraordinary chambers in the courts of Cambodia

59

75 150

Tables 2.1 3.1

International criminal tribunal for the former Yugoslavia: budgets International criminal tribunal for Rwanda: budgets

57 90

vii

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Abbreviations AFRC ALC AMIS ASP AU CAR CAVR CDF CEAJ CNDP CPA CTF DRC ECCC ECOMOG ECOWAS EU FARDC FDLR FIDH FNI FPLC FRETILIN FRPI GNU HRW ICC ICJ ICTR ICTY ILC INTERFET IST JEM KFOR

Armed Forces Revolutionary Council Armée de Libération du Congo African Union Mission in Sudan Assembly of States Parties African Union Central African Republic Commission for Reception, Truth and Reconciliation Civil Defence Forces Committee of Eminent African Jurists Congrès national pour la défense du peuple Coalition Provisional Authority Commission of Truth and Friendship Democratic Republic of the Congo Extraordinary Chambers in the Courts of Cambodia Military Observer Group of the Economic Community of West African States Economic Community of West African States European Union Forces armées de la République démocratique du Congo Forces démocratiques pour la Libération du Rwanda International Federation for Human Rights Front des nationalistes et intégrationnistes Forces patriotiques pour la Libération du Congo Revolutionary Front for an Independent East Timor Force de résistance patriotique en Ituri Government of National Unity Human Rights Watch International Criminal Court International Court of Justice International Criminal Tribunal for Rwanda International Criminal Tribunal for the Former Yugoslavia International Law Commission International Force for East Timor Iraqi Special Tribunal Justice and Equality Movement Kosovo Protection Force viii

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List of Abbreviations

KLA LRA MLC MONUC NATO NCP NGO OAU OSCE OTP RPA RPE RPF RUF SCSL SCU SPLA/M TNI TRCSL UK UN UNDESA

ix

Kosovo Liberation Army Lord’s Resistance Army Mouvement pour la Libération du Congo Mission de l’ONU en République démocratique du Congo North Atlantic Treaty Organization National Congress Party Non-governmental organization Organization for African Unity Organization for Security and Co-operation in Europe Office of the Prosecutor Rwandan Patriotic Army Rules of Procedures and Evidence (ICC) Rwandan Patriotic Forces Revolutionary United Front Special Court for Sierra Leone Serious Crimes Unit Sudan People’s Liberation Army/Movement Indonesian Armed Forces Truth and Reconciliation Commission for Sierra Leone United Kingdom United Nations United Nations Department of Economic and Social Affairs United Nations Development Programme United Nations General Assembly United Nations High Commissioner for Refugees United Nations Mission in Kosovo United Nations Mission in Liberia United Nations Mission of Support in East Timor United Nations Integrated Mission in East Timor United Nations Protection Force United Nations Observer Mission in Sierra Leone United Nations Transitional Authority in Cambodia United Nations Transitional Administration for East Timor Union des Patriotes Congolais United States Union of Soviet Socialist Republics Victims Participation and Reparation Section (ICC) Victims and Witnesses Unit (ICC)

UNDP UNGA UNHCR UNMIK UNMIL UNMISET UNMIT UNPROFOR UNOSOMIL UNTAC UNTAET UPC US USSR VPRS VWU

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Foreword It is almost two decades since the UN Security Council established the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. It was the start of a new era: for the first time in history truly international criminal tribunals were set up to prosecute and punish genocide, crimes against humanity and war crimes, that is the so-called core-crimes. Their creation paved the way for the establishment of the International Criminal Court (in 1998) and of a group of mixed criminal tribunals, some of them with a strong international component as with the Special Court for Sierra Leone. With the creation and functioning of this set of international criminal courts and tribunals, the international community has begun to enforce directly its criminal prohibitions. As a matter of fact, all these international or mixed criminal tribunals exercise their jurisdiction over individuals who may be indicted on account of criminal rules of a truly international nature. These rules are provided for in their constitutive instruments: they describe the prohibited conducts and indicate what criteria must be applied for sentencing; in addition, they are normally supplemented by other international rules, chiefly customary rules, and by general principles of law common to national legal orders. These international and mixed criminal tribunals, in particular the two ad hoc Tribunals for the former Yugoslavia and Rwanda, have spawned copious case law, thus contributing to the emergence of new international customary rules supplementing those which already existed. In short, with regard to the core crimes, the jus puniendi has ceased to be an exclusive state prerogative; furthermore, it is exercised at the international level on behalf of the international community as a whole. Plainly, states can still prosecute and punish individuals who engage in those criminal conducts. However, the current exercise of national criminal jurisdiction in this field can better be described as a judicial activity performed for the international community as such, rather than as a modality of exercise of a sovereign power. One could go so far as to say that, with respect to the core crimes, national criminal law and national criminal jurisdictions constitute a means enabling the international community to repress such crimes. These are crimes directly criminalized at the international level. As few x

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Foreword xi

international mechanisms have been set up to prosecute and punish the responsible individuals, national judges, if and when they step in and exercise their criminal jurisdiction over those crimes, also act as judicial organs of the international community thereby accomplishing a sort of dédoublement fonctionnel, a phenomenon well known to international lawyers1 and which some national courts seemed to have been fully aware of. 2 It is as though the international community, still a communitas imperfecta, availed itself of national criminal courts to enforce its criminal prohibitions. The establishment of international criminal courts and tribunals is undoubtedly a major achievement towards ending impunity for those responsible for very serious and appalling crimes, usually committed on behalf of the State, or with the tolerance, acquiescence or direct support of the apparatus of the State. There are, however, concerns about their ‘impartiality’. For instance, the decision of the ICTY not to launch an investigation over the alleged war crimes committed by NATO during the bombing of Serbia in 1999 has attracted much criticism. Similarly, the lack of any indictment by the ICTR Prosecutor against any member of the Rwandan Patriotic Front (RPF) – which fought the war against the Hutu-led government – has been frequently raised to accuse the ICTR of being biased against the Hutu. In practice, those Tribunals have been accused of ‘being’ partial not only in the historical sense, that is because they have been set up to deal with crimes committed on a specific country and not elsewhere, but also at the level of their judicial activity. As for the International Criminal Court, the powers that the Security Council can exercise with respect to it risk putting into question the credibility of the Court as an independent judicial body, capable to dispense justice regardless of the political interests of the permanent members of the Security Council and their closest allies. In sum, there are concerns that the ‘modern’ international criminal courts and tribunals suffer from the so-called Nuremberg vice, namely that they dispense politically oriented justice. The present book discusses these concerns, by examining all the past and modern tribunals set up to prosecute persons allegedly responsible for international crimes. It does it in a clear and accessible manner, although within the scientific discourse and the limits of international law. It poses crucial questions about the current system of international criminal justice, and the influence that politics has exercised and may continue to exercise over it. It is an important book, which reminds us of the risks that the international criminal justice faces and that can bar its future development and obliges us to reflect on the possibility that

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xii Foreword

international criminal justice, having asserted itself thanks to international politics, may finally divorce from it. In my opinion, in various degrees, the risks of bending justice to politics are not unique to international criminal courts and tribunals and may also affect national criminal courts dealing with ordinary crimes. The danger that justice may be subjected to, or at least contaminated by, politics, is inherent in every society. That is why a famous Italian criminal lawyer, Francesco Carrara, wrote more than a century ago: ‘When politics gets in by the door, justice is scared away through the window.’3 International politics contributed to the establishment of international criminal courts and tribunals to prosecute and punish persons responsible for odious crimes such as genocide, crimes against humanity and war crimes. It also made it possible to build the temple of international justice. It is now up to the judges, the investigators, the prosecutors of the international criminal courts and tribunals, and also to all of us who believe in the rule of law, to make sure that politics steps outside the temple, leaving only justice inside. Paola Gaeta Professor at the Law Faculty of the University of Geneva and Graduate Institute of International and Development Studies; Director of the LL.M. Programme of the Geneva Academy of International Humanitarian Law and Human Rights

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Introduction

More than 40 years after the Nuremberg International Military Tribunal, a number of ad hoc, temporary courts were created to try those alleged of serious crimes – genocide, war crimes, crimes against humanity – committed in several countries: the Former Yugoslavia, Rwanda, East Timor, Sierra Leone, Cambodia and Lebanon. These courts were either international, or mixed national/international bodies. In 1998, a permanent court was created, the International Criminal Court. The Nuremberg and Tokyo Tribunals, held respectively in 1945 to 1946 and 1946 to 1948, judged the most senior surviving political and military officials of these countries (except for Emperor Hirohito) for crimes against peace, war crimes and crimes against humanity, including the participation in a common plan or conspiracy to commit those crimes. The German and Japanese defendants received death sentences or time sentences; three of the German defendants were acquitted. The creation of new international criminal tribunals from the 1990s, culminating in the creation of the permanent International Criminal Court in 1998, marked an extraordinary step forward in the development of international law. It was based on the parallel development of an international humanitarian regime and of an international human rights regime, and triggered by specific dramatic events. Why extraordinary? International relations have traditionally been relations between states, each state enjoying national sovereignty. Only states were responsible as subjects of law. National courts generally have exclusive criminal jurisdiction over those individuals who commit crimes within their state’s territory. The International Court of Justice deals only with states, not with individuals. International criminal justice judges individuals. The innovation of Nuremberg and later tribunals, and a major expansion of international 1

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law, is that individuals became ‘subjects’ of international law; they ceased to be mere ‘objects’, or unnamed parts of states. The new status of the individual gave him/her rights, but also duties and responsibilities. He/she became responsible for war crimes and other violations of international humanitarian law, whereas, in the past, he/she enjoyed impunity. International criminal courts have been given the right to judge and sentence individuals of specific nationalities, under conditions set in their respective Statutes.

Justice and politics Set up to fill the need to try those responsible for grave breaches of international humanitarian law, genocide, war crimes and crimes against humanity, international criminal justice finds its place when national justice is unable or unwilling to play its legitimate role. National justice It is one of the main prerogatives and responsibilities of governments to apply justice fairly to all their citizens. In its Preamble, the 1998 Rome Statute of the International Criminal Court (ICC)1 has recalled that ‘it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’ and has emphasized that the Court is complementary to national criminal jurisdictions. In a resolution of 2006,2 the UN Security Council has stressed the responsibility of States to comply with their relevant obligations to end impunity and to prosecute those responsible for war crimes, genocide, crimes against humanity and serious violations of international humanitarian law, while recognizing for States in or recovering from armed conflict, the need to restore or build independent national judicial systems and institutions. Article 10 of the Universal Declaration of Human Rights of 1948 declares that, ‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him’.3 Independence of the judges requires that the state structure respect the separation of legislative, executive and judicial powers, that is, that national justice be independent from governmental power or influence, which is not the case in many countries. The expectation that national courts would prosecute their own political or military leaders

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Introduction 3

when in office for crimes ordered or authorized by them is obviously unrealistic. National justice may occur only when the despotic regime has been overthrown, or during a transition to a democratic regime, or when the winners in a civil war decide to try the allegedly criminal ‘losers’.4 Even in democratic France, justice has been, and still is, under government influence. Trials during colonial times exposed the blatant interference of governments over judges under pressure from the military. The Vichy regime, which ruled France from 1940 to 1944, instituted a separate legal system for the exclusion and persecution of Jews and set up special courts to judge former political leaders and ‘terrorists’. Even under the 1958 liberal Constitution, judges are still subject to open or hidden political pressures; politicians of all colours, the military elite and the entrenched bureaucracies resist judges’ efforts to assume their proclaimed independence.5 U.S. war crimes in Vietnam have generally been hidden – those revealed have been lightly punished. The treatment of Guantanamo detainees by the Bush administration constituted torture according to the International Committee of the Red Cross. President Obama ordered the closing of the camp in January 2010.6 The first military trial of one of those detainees (Osama bin Laden’s driver, Salim Hamdan) was condemned by a representative of the American Civil Liberties Union (an NGO) as a ‘betrayal of American values’.7 International justice Referring cases to an international criminal court, manned by international judges and lawyers, observed and reported on by the world media, was expected by promoters of international justice to be a guarantee of its fairness, independence and impartiality, while national courts are often influenced by reasons of state or other pressures in judging their own nationals, particularly those in senior positions and in the military. Has the Iraqi Special Tribunal, a national court, given a fair and equitable trial to Saddam Hussein? Would a Serb tribunal have tried Slobovan Milosevic in 2001? The independence of international judges is based not only on their required competence and integrity, but also on their distance from national and local history, circumstances, pressures and bias. The courts’ statutes determine the scope and limits of their jurisdiction, the rights of the accused, due process, the rights of victims, how international prosecutors select cases and how judges deliver sentences.

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Expectations that these courts would be impartial and independent, or more so than national courts, were high. However, neither national nor international criminal courts work in a vacuum. They are subject to political, economic and social pressures. International courts have no immunity against these pressures, which may be applied to the courts’ prosecutors and judges. Their main protection lies in their respect for their court’s statute, in their competence and in their own professional ethics and integrity, with the support and oversight by non-governmental organizations (NGOs). The Nuremberg and Tokyo military tribunals exercised victors’ justice against only German and Japanese defendants. Alleged crimes against peace, war crimes and crimes against humanity committed by the Allies were not tried. Later international criminal courts were saved from this opprobrium, although alleged criminal political leaders are only tried when they have been defeated, and the victors’ crimes are rarely prosecuted, as seen in the Rwanda situation. The question has also been raised concerning ‘double standards’. Does international justice only prosecute African tyrants, and give de facto immunity to the leaders of rich and powerful countries? Evidence shows that internal and external political considerations have at times affected the international courts’ deliberations and their decisions. Basically, even though they claim to be independent and enjoy an international status and privileges, these courts are dependent on states for their creation, their staffing, their financing and their legal, logistical and administrative support. They need states’ cooperation to obtain custody of suspects. Luis Moreno- Ocampo, the International Criminal Court’s Prosecutor, has shown the need to balance independence and interdependence:8 International criminal tribunals must be independent in the way they perform their work, faithful to their mandates and impervious to undue outside influence. Yet they also, paradoxically, must foster inter- dependence with national entities in order to perform their important work. ... ... in the absence of inter- dependence, none of his [the prosecutor’s] work can be carried out. Another major issue is the constant dilemma between peace and justice, as international courts are frequently called to act in countries in war situations. Should international justice carry out its prosecutions and trials independently from separate efforts to obtain compromise

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Introduction 5

peace settlements, or should the courts stand aside while settlements, sometimes involving giving judicial immunity to criminal leaders, are being negotiated? Courts’ prosecutors have been, and still are, subject to heavy government and media pressures to give precedence to peace efforts, even if no proof has been adduced that threatened or actual prosecutions harm these efforts.

The legal framework The development of both an international humanitarian regime and of an international human rights regime set the necessary basis for the advent of international criminal justice. The former, born in the nineteenth century, seeks to limit the effects of armed conflict by providing protection to persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat. It includes the law of war which restricts the means and methods of warfare. The latter, mainly dating from the twentieth century, attempts generally to protect citizens from their own government at all times. The two regimes are complementary. The international humanitarian regime Born on the battlefield of Solférino, the Red Cross movement adopted the First Geneva Convention in 1864, designed to protect wounded and sick soldiers and sailors, prisoners of war and medical personnel during international conflicts.9 The 1949 Conventions and the 1977 Protocols adopted rules to protect civilian populations, often the main targets of conflicts.10 Another innovation was to extend protection in non-international conflicts, a frequent occurrence since the Second World War. The Hague Conventions of 1899 and 1907 set restraints on the use of force and the use of certain weapons.11 After that war, a number of international arms control agreements were adopted, among them, the 1968 Treaty on the Non-Proliferation of Nuclear Weapons, the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons, which came into force in 1993 and the Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and their Destruction, in force since 1999.12 These instruments rely on states to ensure the respect of their prescriptions. After ratification of the international instrument, the state should integrate its substance and procedures into its national laws and ensure that those who violate its provisions are subject to national

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justice. None of these instruments mention a possible referral to an international criminal court. The human rights regime The atrocities committed during World War II (war crimes and crimes against humanity, including the genocide of the Jews, Gypsies and the killings of other groups) played a key role in developing a human rights regime, which had been ignored by the League of Nations. The Preamble of the UN Charter reaffirmed ‘faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women’. Adopted on 10 December 1948 by the UN General Assembly, the Universal Declaration of Human Rights proclaimed the Declaration ‘as a common standard of achievement for all peoples and all nations’. The non-binding Declaration was followed in 1966 by two international Covenants, one on economic, social and cultural rights, and one on civil and political rights. Both Covenants entered into force in 1976. Also in 1948, and directly related to the Nuremberg trial, the Convention on the Prevention and Punishment of the Crime of Genocide followed, which affirms that ‘genocide, whether committed in time of peace or in time of war is a crime under international law which they [Contracting Parties] undertake to prevent and punish’.13 The Convention bans acts committed ‘with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’ because of membership in that group, such as killing members of that group, causing serious bodily or mental harm to members of that group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group and forcibly transferring children of the group to another group. It declares punishable genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide. Persons committing these acts are to be punished ‘whether they are constitutionally responsible rulers, public officials or private individuals’. These were to be judged by national courts, or ‘such international penal tribunal as may have jurisdiction ... ’. States are bound to extradite suspects in accordance with national laws and treaties. Any State Party to the Convention may also call upon the United Nations to act to prevent or suppress acts of genocide. In December of the same year, the UN General Assembly adopted a resolution affirming the principles of international law recognized

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Introduction 7

by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal.14 A series of other international Conventions was adopted over the years to condemn violations of human rights in specific areas and/or to prescribe positive prevention action. Among them: The International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted by the General Assembly in 1973, also imposes individual criminal responsibility on individuals for committing this crime, and also refers to an international penal tribunal as an alternative to a trial by a national court.15 The 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment bans torture under all circumstances.16 The UN Committee against torture, created by the Convention, requires states to make torture illegal and provide appropriate punishment for such acts. It requires States Parties to exercise universal jurisdiction over persons in their territory who are suspected of committing torture or to extradite them to a state able and willing to do so. The Convention on the Rights of the Child, adopted in 1989, bans discrimination against children and provides for special protection and rights appropriate to minors.17

The evolving international political and social context The development of international justice Pierre Hazan has identified three periods showing the recent evolution of transitional justice,18 a concept and an approach which includes international criminal justice as one of its elements. The first is the period 1983–1995, starting with the creation of the Truth Commission in Argentina (1983) and culminating with the Commission of Truth and Reconciliation in South Africa (1995).19 This movement followed the democratization process of the 1970s in the South of Europe: Greece and Portugal (1974), Spain (1975), then the end of military regimes in Latin America and a liberalization process in Asia, in particular in the Philippines in the 1980s. The fall of the Berlin Wall, on 9 November 1989, was a symbol for the end of the Cold War which resulted in the reunification of Germany, the disintegration of the Soviet Union, the collapse of Communist dictatorships in Central and Eastern Europe where 15 states established democratic regimes in 1991. In April 1994, general elections in South Africa marked the end of the apartheid regime and the peaceful shift to political control from the

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white minority to the black majority. A few African countries opened elections to opposition parties. During the second period, 1992–2001, overlapping with the first, the earlier optimism of democratic progress and peaceful reconciliation was shattered by multiple internal conflicts and massive violence: the Rwanda genocide (1994), the Srebrenica massacre (1995) and civil war in Sierra Leone and in Uganda, with major abuses, terrorizing, killing and maiming of civilian populations, and the hidden Russian war in Chechnya. From these events came the need to go beyond diplomatic peace talks and truth and reconciliation commissions, and use international criminal justice to find and punish criminal leaders. The International Criminal Tribunals for the Former Yugoslavia and for Rwanda were set up respectively in 1993 and in 1994, followed by the creation of mixed national-international courts: the East Timor Special Panels in 2000, the Special Court for Sierra Leone in 2002 and, in 2004, the Extraordinary Chambers in the Courts of Cambodia to judge, belatedly, the surviving Khmer Rouge leaders. Finally, a permanent court, the International Criminal Court, was created in 1998, followed by the creation of yet another hybrid court, the Special Tribunal for Lebanon in 2007. During both periods, the effective influence of Western-based NGOs brought pressure on national leaders, UN debates and commissions, and public opinion, by submitting fact-finding reports on abuses carried out by governments and rebels, ‘shaming” governments for ignoring their commitments to human rights treaties, fighting against the impunity of powerful, criminal leaders, promoting the creation of international criminal courts and monitoring their work. The third period started with the 11 September 2001 attacks against the Twin Towers in New York City, which hardened U.S. unilateralism; efforts to combat terrorism took precedence over international law and justice. Paradoxically, international criminal justice was then becoming institutionalized. The impetus of political shocks Diehl, Ku and Zamora20 posit that some significant impetus must be present before [international law] adjusts to the normative change. That impetus must come from a significant political shock. Political shocks can be discrete events, such as world wars, acts of terrorism, or horrific human rights abuses. Shocks might also appear as significant processes, such as global democratization, that extend over a period of time. All political shocks, however, represent dramatic changes in the international

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Introduction 9

political environment, which in turn facilitate changes in the international legal operational system. A new government would be an example of a change in the political environment of a country. The authors submit that the movement towards an ad hoc and then a permanent court to handle genocide and other concerns lies in the political shocks of the 1990s, such as the end of the Cold War and the genocidal acts in Yugoslavia and Rwanda. ‘Policy makers explicitly cite such shocks as prerequisites for such occurrences’. From the Grotian to the Kantian model According to Cassese,21 it is widely accepted that two models of international legal relations exist: a traditional one, which could be called Grotian after the seventeenth- century Dutch scholar Hugo Grotius, and a new Kantian model. The first model is based on a few general concepts: ●

●

●

States are the exclusive or almost exclusive actors on the international scene; Respect for state sovereignty is the pivotal element in international relations; The concept of reciprocity: all interstate relationships are based on self-interest.

Only when the interest of many states coincide can general standards emerge, for instance, those on diplomatic or consular relations, international treaties, piracy and so forth. Since the conflicting interests of states have made it impossible to set up common institutions entrusted with the three traditional functions each state fulfils within its own national legal system (lawmaking, judicial settlement of disputes, and enforcement of legal standards), the discharge of these functions is left to each member of the international community. Consequently, unilateralism prevails. The Kantian model is based on several assumptions. ‘First is the notion that although States are still the main players on the international scene, individuals are and should increasingly be the focus of international relations: States should primarily act as their representatives. ...

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10 International Criminal Tribunals

A second feature of the Kantian model is the belief in a core of universal values (peace, respect for human rights, self- determination of peoples) that all members of the international community should respect. ... The emergence in the world community of a set of basic values that no one may disregard has resulted in the birth, on a supranational level, of a phenomenon that has been common to all national legal systems since time immemorial: a hierarchy of legal standards, whereby some general rules (known as peremptory norms or jus cogens) are of such overarching importance that States are not allowed to deviate from them in their private dealings’. Cassese adds that this model is increasingly influential but it has not yet established itself as a fully-fledged and coherent system of international relations. Most significantly, ‘a central mechanism for law-making or law enforcement is still lacking’.

Criticisms and challenges Friends and foes of international criminal justice Insofar as the history of international law has predominantly been written by Western states,22 one could expect those states to be strong promoters and supporters of international criminal tribunals. These states, and particularly states belonging to the European Union (EU), are indeed strong supporters of human rights, international law and international justice, subject to political considerations and reservations in specific cases. In June 2003, the EU Council affirmed that the principles of the Rome Statute which established the International Criminal Court (ICC) in 1998 were fully in line with the principles and objectives of the Union and that the serious crimes within the jurisdiction of the Court were of concern to all Member States, which are determined to cooperate for the prevention of these crimes and for putting an end to the impunity of their perpetrators.23 The United States was the key actor behind the creation and running of the Nuremberg and Tokyo Tribunals. It has been a leader in promoting ad hoc, temporary international criminal courts with jurisdiction limited to specific regions or countries, but vigorously opposed the creation of the permanent International Criminal Court with a broader jurisdiction, for reasons given in Chapter 8, and even tried to destroy it. France was at the forefront of the creation of the International Criminal Tribunal for the Former Yugoslavia, and the United Kingdom promoted

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Introduction 11

the setting up of the Special Court for Sierra Leone, together with the United States. Latin American countries which have a long and well- earned tradition of internationalism, as well as Caribbean states, are loyal supporters of the international criminal courts. In 2004, the General Assembly of the Organization of American States welcomed the historic entry into force of the Rome Treaty urging its member states, in part, to cooperate among themselves to bring an end to impunity for crimes under the ICC’s jurisdiction.24 African states generally support international criminal justice – 31 African states are Parties to the ICC – but have expressed concern that courts seem to focus essentially on African situations and leaders, and not on crimes allegedly committed by states and leaders of the North, a charge of double standards. Russia has criticized the work of the International Criminal Tribunal for the Former Yugoslavia insofar as it seemed, in its view, to focus unfairly on Serb war crimes. It has signed the Rome Treaty, but not ratified it. China opposes international justice as a potential breach of its sovereignty. Only 15 Asian states are Parties to the Rome Treaty, but, significantly, they include Japan. In the Arab world, only Afghanistan has ratified the Rome Treaty. Chemillier- Gendreau25 notes that, in a fatwa pronounced on 5 November 1994, the grand mufti of Saudi Arabia advised Islamic states against any recourse to international secular law. UN organizations and Secretariat heads, the Inter-Parliamentary Union, the International Committee of the Red Cross, human rights and humanitarian NGOs support the courts.26 On 28 April 2006, the UN Security Council reaffirmed27 that ending impunity is essential if a society in conflict or recovering from conflict is to come to terms with past abuses committed against civilians affected by armed conflict and to prevent future such abuses, draws attention to the full range of justice and reconciliation mechanisms to be considered, including national, international and “mixed” criminal courts and tribunals and truth and reconciliation commissions and notes that such mechanisms can promote not only individual responsibility for serious crimes, but also peace, truth, reconciliation and the rights of victims. International justice under attack Even though the International Criminal Court had 114 States Parties in October 2010, there is still a hefty minority of states that object to, or fear, international criminal justice.

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Their objection is principally that the international tribunals erode or breach the fundamental principle of national sovereignty in international law, which forbids other states or the UN from intervening in a state’s domestic jurisdiction (Article 2.7 of the UN Charter). This principle is of particular interest and concern for small and weak states, considered as a legal and diplomatic protection against the mighty ones. However, the defense of national sovereignty may serve as a useful cloak to provide immunity to, and ensure the impunity of, criminal leaders. International courts have been charged with applying undue focus on African crimes. A statement delivered by the Rwandan government to an April 2008 meeting of the African Union ministers of justice made the accusation that ‘foreign judges seek to recolonise Africa through a form of “judicial coup d’état” under the guise of “judicial independence” and “universal jurisdiction” ’.28 Besides the neocolonialist allegation, this joins the more general charge against ‘government by the judges’ or ‘tyranny of judges’ made by those who fear and reject judicial accountability for their deeds, even if legally appointed judges rule on the basis of adopted legislation and known jurisprudence. Although insistence on the protection of their national sovereignty is mainly voiced by small states, the major states do not want international judges to arrest, indict and judge their own citizens, or, even more, their own leaders. Neither the United States, China or Russia are States Parties to the Rome Statute. Are their opposition and fears well-founded? Heads of state and governments, along with their senior officials, traditionally enjoy wide immunity from both criminal prosecution and civil lawsuits, at home and abroad, while they remain in office. However, the statutes of international criminal courts have declared the irrelevance of official capacity for such heinous crimes as genocide, war crimes, crimes against humanity and other serious violations of international humanitarian law. Article 27 of the Rome Statute states: 1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

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Introduction 13

2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person. The record (see below) shows that a number of senior officials have been indicted and judged by international courts. Political justice Another objection is a question of legitimacy; as stated above, justice, and in particular criminal justice, is a key attribute of national sovereignty. The justification for the creation of international courts is primarily that national justice is often unable or unwilling to act, thus leaving major crimes unpunished. Technically, international courts have been set up either by the UN Security Council or by the UN General Assembly and a government, or by international treaties, giving them legal legitimacy. However, questions remain as to whether international courts should prevail over national justice, or, as in the case of the ICC, leave primacy to national courts. As noted by Gierycz,29 critics of the ‘Hague justice’ point to the politicization of international criminal justice, its selectivity and perception of delivering ‘winners’ justice’. They claim that many alleged war criminals in all parts of the world escape justice and that some of the choices are politically motivated. ‘For example, there are no tribunals addressing the recent gross human rights violations in Ethiopia and Eritrea, or in the Delta State of Nigeria’. To which one could add the U.S.-led Coalition’s alleged war crimes in Iraq and in Afghanistan. The charge of ‘victors’ justice’ has been rightly addressed to the Nuremberg and Tokyo Tribunals. However, critics such as Zolo (2006) more broadly submit that contemporary international law, hallowed as the domain of impartiality and universalism by cosmopolitan theorists, in fact produces an asymmetrical and retributive form of justice from which consideration of the winners’ crimes is systematically excluded. Only leaders of lost wars, or losers of civil wars, are judged for crimes. For instance, the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY) decided to reject an investigation of alleged NATO war crimes during its bombing campaign in Yugoslavia. The International Criminal Tribunal for Rwanda (ICTR) has not been able to try the alleged crimes of the Tutsi-led Rwandan Patriotic Front against Hutus, faced with the opposition of the ‘victor’, Kagame’s government. International criminal courts have been criticized for being

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placed in a country other than that where crimes were committed: the ICTY is based in The Hague and not in the Former Yugoslavia; the ICTR is in Arusha (Tanzania) and not in Rwanda; Charles Taylor was indicted by the Special Court for Sierra Leone but then transferred to The Hague for his trial. This geographical separation, and, even more, the complex judiciary procedures and the prevailing language (English) of the trials was due to reduce the interest and appreciation of justice by the victims, survivors and/or their families. The reason for choosing these sites was, in part, intended to reduce the courts’ exposure to local political or military pressures and personal risks for courts’ personnel, witnesses and indictees. The courts have also been criticized for failing to reach out to the local community; they have since initiated outreach programmes to attempt to fill this gap. The duration and high costs of the ICTY and ICTR have been compared to the much lower costs of national courts. Politicians opposed to the international courts consider that they are a waste of resources which could have been better used to finance a country’s economy and/ or build up its judiciary institutions. Governments have complained about the excessive length of the trials and have, in consequence, compelled the ad hoc courts to set a closure date for their activities. The record A brief summary of some of the achievements of the major international criminal courts is given here. More details will be given in the following chapters related to specific tribunals. Created by the UN Security Council in 1993, the International Criminal Tribunal for the Former Yugoslavia (ICTY), had indicted, by June 2010, 161 persons for serious violations of international humanitarian law. Thirty-six of these were still on trial, 125 had been sentenced, 35 were in custody at the The Hague ICTY Detention Unit. The Tribunal made news when the former Yugoslav president, Slobovan Milosovic, was transferred to The Hague in June 2001. He was the first former head of state to be judged by an international criminal court. His death on 11 March 2006 closed the case. The arrest of Radovan Karadzic in Belgrade on 21 July 2008, and his transfer to the Tribunal on 30 July, was another belated ‘victory’ for the ICTY. Former President of Republika Srpska and Supreme Commander of the Serb armed forces, he has been indicted for genocide, complicity in genocide, extermination, murder, wilful killing, persecutions, deportation, inhumane acts, inflicting terror upon civilians and the taking of hostages.

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Introduction 15

Born one year later – in 1994 – the International Criminal Tribunal for Rwanda (ICTR) was also created by the UN Security Council. By June 2010, 24 cases were in progress, 34 cases were completed at Trial Chamber stage, there were 8 pending appeals and 8 had been acquitted. The accused included one Prime Minister and six government ministers. The Special Court for Sierra Leone, a mixed national-international court, was created in April 2002 by the UN and the government of Sierra Leone. By April 2010, the Court had completed proceedings and convicted eight persons for serious crimes. The only remaining case was that of Charles Taylor, the former president of Liberia. He was indicted in March 2003 and transferred to The Hague in June 2008. His case is scheduled to be completed in 2011. The Extraordinary Chambers in the Courts of Cambodia, another mixed national-international court, was only created in 2003 by the government of Cambodia and the UN General Assembly, to try the few surviving senior Khmer Rouge leaders accountable for the crimes committed against their own population from April 1975 to January 1979. The court had five aged detainees in jail in 2010, all senior Khmer Rouge figures. In the first trial, that of Kaing Guek Eav, known as Duch, the accused was convicted and sentenced to a 30-year imprisonment in July 2010. The judicial investigation in a second case was closed. The International Criminal Court was created in 1998 by international treaty, the Rome Statute. It entered into force in 2002. By 2010, the Prosecutor had opened investigations in four ‘situations’: in the Democratic Republic of Congo, in Uganda, in the Central African Republic and in Darfur, Sudan. It has four accused in ICC custody, awaiting trial. On 14 July 2008, the Prosecutor formally requested an arrest warrant for the Sudanese sitting president, Omar Hassan al-Bashir on charges of genocide and crimes against humanity committed in the previous five years in his country’s Darfur region. The first ICC trial, that of Thomas Lubanga Dyilio, started in January 2009. Other cases are at the pre-trial stage. In November 2009, the Presidency of the ICC assigned the situation in the Republic of Kenya to a Pre-Trial Chamber. Constraints The courts operate under major constraints. They need the active political and financial support of governments for their creation, and for their work. Governments have imposed on the ITCY and the ITCR a completion strategy set, in principle, at 2013 for the ICTY and 2010 for

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the ICTR. The Sierra Leone Special Court should also complete its mandate by the end of 2011. The courts are dependent on governments for their financing, in particular those courts whose funding is made by voluntary, not statutory, contributions. Governments providing such voluntary funds may be seen as having undue influence on the prosecution policies of the court. As noted above, they must obtain and ensure the cooperation of governments while, at the same time, maintaining their judicial independence, a delicate balancing act, particularly for the registrars and prosecutors, while the judges are better shielded by their status. A major constraint is that, in contrast with national tribunals, international courts have no police of their own; they cannot depend on a police force empowered to ensure the forced arrest and custody of indictees. They have no formal authority over law enforcement bodies in the countries where investigations are held, often in dangerous environments where conflict is not extinct. When governments show no cooperation in implementing arrest warrants, the ICTY and ITCR may have recourse to the powers of the UN Security Council under Chapter VII of the UN Charter30 – a rather cumbersome and uncertain process, which can only be used sparsely – but other courts do not have this option. As shown in the case of the ICTY, in order to obtain the arrest of indictees, the Prosecutor had to cajole or threaten governments; first convince them of their need to cooperate, or, as a last resort, publicly expose their lack of cooperation. Non- governmental organizations (NGOs) play an important role in this process. Dicker and Keppler31 emphasize that prosecuting senior officials for serious human rights crimes where there are large numbers of victims is a complex and expensive process regardless of whether the cases are tried before national or international courts. They require massive amounts of evidence that must be analysed and classified by crime scene, type of crime and alleged perpetrator. They require a sophisticated prosecution strategy. These trials may lack the visibility in the country where the crimes have occurred, where the government may include accused war criminals and oppose the prosecutions, making it difficult to gather evidence and obtain the custody of the indictees. A tribunal set away from the concerned country may

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Introduction 17

lack familiarity with the cultural and historical context in which the crimes occurred. The authors add that Bringing together judges, prosecutors, and other court personnel from different backgrounds and legal culture creates obstacles to efficient trials. Reconciling the civil and common law traditions to establish and implement rules of procedure is time- consuming and costly. Finally, international war crimes trials are exposed to unrealistic expectations of achieving more than justice, for example, reconciliation, peace-making or deterrence, which are well beyond their powers.

Structure of the book The book summarizes the work of all the past and existing international criminal courts with a focus on the political problems faced by them, showing their impact on the courts’ action and credibility. These issues will be considered, as applicable, in the following chapters related to each of the courts. Following the present Introduction, Chapter 1 recalls the role and legacy of the Nuremberg and Tokyo Military Tribunals. Part I then reviews the first generation of (non-military) international criminal tribunals and the International Criminal Tribunals for the Former Yugoslavia and for Rwanda. Part II considers the second generation, that of mixed national/international courts: the Special Panels for Serious Crimes in Dili, East Timor (now Timor-Leste), the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia and the Special Tribunal for Lebanon. Part III reviews the role of the permanent International Criminal Court: its Statute, current referrals and investigations. Could or should alleged criminal leaders be tried more effectively by national, and not international, courts? The examples of the Iraq Special Tribunal and the prosecution of Hissène Habré in Senegal are referred to in Part IV. A Conclusion will summarize current views on the achievements of the various ad hoc, temporary courts, on the first years of the ICC, and on the future of international criminal justice. Is international criminal justice a utopian enterprise based on unrealistic and unfair grounds,

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18 International Criminal Tribunals

or does it constitute a positive step in the long and slow quest to fight impunity of the criminal leaders? How independent are these courts from political influence and pressures? All facts and references are dated August 2010 or before.

The author The author has previously published these books on related issues: Judging War Criminals: The Politics of International Justice (Macmillan, U.K. and St. Martin’s Press, U.S., 1999). Judging Criminal Leaders: The Slow Erosion of Immunity (Kluwer Law International/Martinus Nijhoff, 2002). International Justice against Impunity, Progress and Defeats (Martinus Nijhoff Publishers/Brill, Leiden/Boston, 2005). Judging War Crimes and Torture, French Justice and International Criminal Tribunals and Commissions (1940–2005) (Martinus Nijhoff Publishers, Leiden/Boston, 2006). As with these books, this book is not a legal treatise, although references are made to legal texts, judgments and interpretations. The author uses institutions and case studies – international criminal tribunals – as a basis for examining the interaction between international justice and national or international politics; his goal is not to define or amend legal doctrine or political science theories or models. It is a practical attempt by the author – an independent, legally-trained observer and an internationalist – to describe, assess and support the development of an emerging international criminal justice regime, through the creation of international criminal tribunals while acknowledging the many obstacles met by these tribunals, including the political constraints raised by realpolitik and national sovereignty concerns. In this book, this French writer makes a number of references to France, French judges, publications and viewpoints which are often unknown or not covered in English-language publications. The author’s continued interest in this domain is no doubt related to his short experience (March–August 1946) as a legal secretary to Henri Donnedieu de Vabres, the French Judge at the Nuremberg Trial, followed in more recent years by teaching on international justice in European and North American universities, and, of course, to the many recent initiatives and achievements in this field.

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Introduction 19

Acknowledgements I am deeply appreciative of Professor Paola Gaeta, of the Law Faculty of the University of Geneva and of the Académie de droit international humanitaire et des droits humains in Geneva, for having written the Foreword to this book. A specialist in international criminal justice, Professor Gaeta is a member of the Editorial Committee of the Journal of International Justice. Many thanks to Jery Kilker for patiently reviewing and wisely advising on the substance and writing of the manuscript, as well as to Eve Landau, who made comments on a few chapters. The editing skills of Mandy Eggleston are, again, gratefully acknowledged.

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1 The Pioneers: The Nuremberg and Tokyo Military Trials

The Nuremberg and Tokyo International Military Tribunals were created after World War II in order to try and punish the Nazi and Japanese leaders for their roles in launching aggressive wars and ordering or authorizing war crimes and crimes against humanity. The killings, devastation, losses and suffering caused by World War II in the European theatre were not only greater than in World War I – 10 million deaths in World War I, over 50 million in World War II – but they took another dimension as a result of the racist ideology of the Nazis, which caused the persecution of Jews in Nazi Germany and European countries occupied by the Germans, leading to their systematic extermination. The harassment and mass murder of Soviet prisoners of war, another class of ‘sub-humans’, was due to the racist theory of Aryan superiority over the Slavs within the ideological, political and military struggle between Nazism and Communism. Japan was also accused of starting wars of conquest, and of committing the same crimes committed by the Germans in the European war. Japanese atrocities included massacres of non- combatants, the maltreatment and killing of prisoners of war, torture, forced labour and institutional murder in the form of lethal medical experiments. The Tribunals had a limited ‘international’ nature insofar as their judges were citizens only of the victorious countries. Also, only German and Japanese leaders were tried. The alleged ‘crimes’ of the victors were not tried. However, even if they were imperfect and political justice, Nuremberg and Tokyo made a significant contribution to international criminal law and justice. The Nuremberg principles have been the basis for the later creation of international criminal tribunals in the 1990s. 20

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The Nuremberg trial The main promoter of the decision to create an international tribunal to judge the major German war leaders is properly credited to the United States, after a change in its initial position. Without US leadership, the Nuremberg trial might not have taken place. The trial took place in the US zone of defeated Germany and benefitted from substantial US legal expertise, documentation, logistical and financial resources, and, not least, the determined US political will – exercised by the US administration1 and the US prosecutor, Justice R. H. Jackson, on loan from the US Supreme Court – to overcome the many obstacles which threatened the Tribunal from the initial negotiations to the final judgments. The St James’s Palace Declaration,2 issued by the representatives of nine governments-in- exile on 13 January 1942, explicitly repudiated retribution ‘by acts of vengeance on the part of the general public’ and declared that the ‘sense of justice of the civilized world’ required that the signatory powers place among their principal war aims the punishment, through the channel of organised justice, of those guilty of or responsible for these crimes, whether they have ordered them, perpetrated them or participated in them. The terms of the Declaration were endorsed by Churchill, Roosevelt and Stalin in July 1942. Another Declaration3 issued in the name of the same leaders at the Moscow Conference of the Foreign Ministers of the UK, the USA and the USSR on 1 November 1943, referred to the ‘punishment’ of the major criminals whose offences have no particular location, by a joint decision of the Allied governments, without reference to organized justice. The communiqué of 2 August 1945 published by the three Allies – with two new participants, British Prime Minister Clement Attlee and US President Harry Truman – specified that the method of punishment would be through ‘swift and sure justice’. On 8 August 1945, France (a new ‘victor’), the UK, the USA. and the USSR signed the London Agreement which provides that ‘there shall be established after consultation with the Control Council for Germany4 an international military tribunal for the trial of war criminals whose offences have no particular geographical location’. The Nuremberg Charter was annexed to the London Agreement.5

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The Nuremberg charter The Charter is preceded by a quadripartite Agreement which decided the establishment of ‘an International Military Tribunal for the trial of war criminals whose offences have no particular geographical location whether they be accused individually or in their capacity as members of the organizations or groups or in both capacities’. Article 1 of the Charter limited the geographical competence of the Tribunal; it was established for ‘the just and prompt trial and punishment of the major war criminals of the European axis’. The Tribunal would consist of four members and four alternates. The members would agree, before the trial, on the selection of a President among themselves. Decisions would be taken by a majority vote, and, if the votes were evenly divided, the vote of the President would be decisive, provided always that convictions and sentences required the affirmative votes of at least three members. Each of the four countries would appoint a Chief Prosecutor. The crimes within the jurisdiction of the Tribunal were defined as follows (Article 6): (a) Crimes against Peace: namely, planning, preparation, initiation or waging a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation of a Common Plan or Conspiracy for the accomplishment of any of the foregoing; (b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity; (c) Crimes against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of domestic law of the country where perpetrated. Leaders, organizers, instigators and accomplices participating in the formulation or execution of a Common Plan or Conspiracy to commit

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any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. Sentences would include death or other punishment. The judges and prosecutors Lord Justice Sir Geoffrey Lawrence of the Court of Appeal was the British judge and Sir Norman Birkett, a barrister and Judge of the High Court, was his alternate. The US judge was Francis Biddle, a former Attorney General and a Democrat. His alternate was John F. Parker, a Republican, who had valuable experience as a jurist and Appeals Court judge. The Soviet judge was General I. T. Nikitchenko, Vice President of the Supreme Court of the USSR, and his alternate Colonel Alexander Volkoff, professor of international law in Moscow. The French judge was Henri Donnedieu de Vabres, a renowned specialist in international criminal law and a professor at the Paris Sorbonne law faculty. He was the only judge in Nuremberg without judicial experience, although this was somewhat compensated by the long experience of his alternate, Robert Falco, a judge at the Court of Cassation, the highest judiciary court of France. In early October of 1945, Lawrence was elected President of the Tribunal. The Chief US Prosecutor was Justice Jackson, who played a major role in the preliminary negotiations leading to the approval of the Charter, in the physical renovation of the Tribunal’s premises in Nuremberg, in staffing the US teams and in his prosecuting role during the trial. The Chief British Prosecutor was first Sir David Maxwell-Fyfe, then Sir Hartley Shawcross, Q.C., Attorney General of Great Britain when the Labour government came to power. The Chief Russian Prosecutor was General Roman Rudenko, General Prosecutor of the USSR. France was first represented by François de Menthon, a university law professor, who was later replaced by Auguste Champetier de Ribes, a lawyer. The judgments The trial lasted from 14 November 1945 to 1 October 1946. The prosecution phase took place between 20 November 1945 and 7 March 1946; the defence followed from 8 March through August 1946. The defence counsels’ speeches were limited to a period of 15 days in July, followed by the prosecutors’ final statements. The trial of the Nazi organizations took place in August. On 31 August, each defendant made his final statement to the Court. On 1 September, the judges sat in camera to decide on their judgments. The judges read these on 30 September and 1 October 1946.

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24 International Criminal Tribunals

Twenty-four individual defendants were indicted, including political and military leaders, high Nazi officials. Twelve were sentenced to death by hanging, three to life imprisonment, two to 20 years imprisonment, one to 15 years and one to 10 years; three were found not guilty and released.6 One had committed suicide in his cell before the trial, and a senior industrialist was not tried on account of his senility. The Nazi Party, the Gestapo and the Security Service (SD), and the Protection Corps (SS) were declared criminal, with minor exceptions. The Storm Troopers (SA), the Reich Cabinet and the General Staff and High Command were declared not criminal. In his conclusion, Lawrence announced that the Soviet member had dissented from the decisions in the three cases of acquittals (Schacht, von Papen and Fritzsche) and in declaring non- criminal the General Staff and High Command and the Reich Cabinet. The Soviet member also dissented from the life sentence given to Hess; he should have been sentenced to death. The critics of Nuremberg Nuremberg was both praised and vilified. Richard J. Goldstone, Chief Prosecutor of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda (1994–1996), called the Nuremberg judgment ‘one of the beacons to shine out of the 20th century’.7 US Chief Justice Stone once referred to the Nuremberg trial as a ‘high-grade lynching party’.8 Others had more nuanced comments. The main issues are summarized below. The legitimacy of the Tribunal The Tribunal held in its judgment that it was bound by the Charter and that its jurisdictional basis as provided in the Charter could not be challenged:9 The making of the Charter was the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered, and the undoubted right of these countries to legislate for the occupied territories had been recognized by the civilised world. The Charter is not an arbitrary exercise of power on the part of the victorious nations, but in the view of the Tribunal, as will be shown, it is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law. The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations for the proper conduct of the

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Trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law. With regard to the constitution of the court, all that the defendants are entitled to ask is to receive a fair trial on the facts and law. For Simons10 the single theory which best fits the known facts, certainly as they are viewed in retrospect, is that based upon the premise of the Four Powers – in drafting the Charter and establishing the Tribunal – of acting in the interests of the United Nations11 and bringing accused war criminals to account on behalf of the entire world community of civilised nations. This policy was set forth in the Moscow Declaration (Article 5), the London Agreement and in the Charter. Wright12 wrote that the derivation of the Tribunal’s jurisdiction from the sovereignty of Germany appeared well-grounded. He added the following justification based on historical realpolitik, not on international law of the 1940s: while jurisdiction assumed on behalf of the civilized world community ‘would theoretically be a novelty, in international law, it would accord with the practice during the 19th century under which leading powers exercised a predominant influence in initiating new rules of international law’. Whether valid or not, this legal construction is based on the Allies’ victory and their military and political assumption of all powers over Germany. It does not provide a satisfactory answer to the charge that four judges and four prosecutors of the four Allied Powers prosecuting, judging and sentencing only German defendants cannot constitute an ‘international’ tribunal. A really international tribunal would have to follow the model of the Permanent Court of International Justice, and of its successor, the International Court of Justice, that is, ‘a body of independent judges elected regardless of their nationality from persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law’ (Article 2 of the Court’s Statute). Were there any alternatives? Immediately after the end of the war, neither the Allies nor public opinion in the victorious countries or in the German- occupied countries would have allowed the participation of German judges or prosecutors, who had practised Nazi law, in

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the preparation of the trial nor in its proceedings. Opposition from the same sources would have also been raised against the participation of neutral countries, not considered as worthy of this honour because of their alleged support for the Nazis during the war, nor is it likely that they would have accepted any such offer, which would have been deemed to be in breach of their neutral status.13 The Soviets would not have sat with neutrals. Internationalizing the composition of the Tribunal was thus not considered a valid option. When German lawyers moved for the inclusion of judges from neutral countries, to accord with the traditional practice in international arbitration, the judges dismissed the motion as outside the terms of the Charter.14 The establishment of the Tribunal was undoubtedly a political process, which was the outcome of difficult negotiations between the political leaders and legal representatives of the victor countries. Its creation by a quadripartite agreement, even if later confirmed by 19 other countries, did not conform with the norms of customary international law, as applied in 1998 for the Treaty of Rome, that is, the negotiation and approval of an international treaty in an international conference and ratification by states’ signatories, a process which would have taken many years, without assurance that a sufficient proportion of states would support the creation of an international court to judge the Nazi violators of international humanitarian law. This was the ‘original sin’ of the Nuremberg trial in the view of a number of international law specialists. The circumstances of the war, the need for urgent action to mitigate the claims for revenge and punishment did not allow for such guarantees and alternatives to be seriously considered; political expediency prevailed. In his opening statement to the trial, US Chief Prosecutor R. E. Jackson recognized frankly that: ‘Unfortunately, the nature of these crimes is such that both prosecution and judgment must be victor nations over vanquished foes. The worldwide scope of the aggressions carried out by these men has left but few real neutrals. Either the victors must judge the vanquished or we must leave the defeated to judge themselves. After the first World War, we learned the futility of the latter course’.15 He added: ‘If these men are the first war leaders of a defeated nation to be prosecuted in the name of the law, they are also the first to be given a chance to plead for their lives in the name of the law’.16 In the event, the right to judge the Germans was limited to the victorious Allies.

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The defendants’ right to a fair trial Wright17 wrote that some critics have deplored the length of the trial but few have suggested any unfairness in the procedure: ‘The Tribunal, if anything, leaned over backwards to assure the defendants an opportunity to find and present all relevant evidence, to argue all legal problems related to the case.’ Murphy18 agrees that the text of the Charter and the rules of procedure provided fair procedures. However, there have been allegations that the Charter norms and rules were administered unfairly before and during the trial. Among these allegations, which have been denied: that the defendants were mistreated while in prison awaiting trial; that the defendants were given inadequate access to documentary evidence, especially if it tended to exonerate them; that the Tribunal did not permit defendants to call key witnesses in their behalf; and that some key defense documents simply disappeared. These allegations raise issues of fact rather than law. There has been little criticism of the norms of criminal procedures themselves. However, German critics of the trial pointed to the ‘severe imbalance between the prosecution and the defense’.19 More in terms of substance than of procedure, the defendants were not allowed to submit evidence in their defence that pointed to the Allied forces’ own actions. Challenges to the judges Historian Bradley Smith observed that the judges ‘were not jurists of long experience or towering stature’20 (Marrus, 1997: 247–8). None had experience in international relations, but the French judge was a renowned specialist in international criminal law and knew Germany and German well. All witnesses recognized that the British President of the Tribunal, Sir Geoffrey Lawrence, conducted the public hearings with dignity, fairness and respect for all parties. There were differences among the judges caused by the diversity of their legal systems: British and American had both accusatory common law systems, albeit with differences between them in the field of criminal procedures. Both the French and the Soviet continental civil law systems and inquisitorial criminal procedures had different principles and practices from the accusatory common law systems which were adopted at Nuremberg and in later international criminal courts.

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Furthermore, in the London negotiations, the Soviet representative tried, without success to establish a presumption of guilt for the defendants. During the trial, judges and prosecutors avoided confrontation with the Soviets over such issues as the Nazi-Soviet Pact and its secret protocol, the Soviet attack on Poland in 1939, and the massacre of Polish officers in Katyn. During the judges’ in camera deliberations, the Soviet judge’s instructions were that all the defendants should be sentenced to death, a position opposed by the other judges. In the judgments, only the Soviet judge wrote a dissenting opinion (Taylor, 1992: 599).21 Charges and judgments The following four counts are those in the Indictment of 6 October 1945. Count one: the common plan or conspiracy The concept of conspiracy was introduced in the Charter at the initiative of the Americans, against the objections of the French and the Soviets. As related by Taylor,22 its author, Murray Bernays, a New York lawyer, promoted the conspiracy and organizational guilt idea with the purpose of obtaining a judgment of criminality in a single trial, following which convictions of members who had joined voluntarily would follow automatically and punishments could be imposed in summary proceedings against hundreds of thousands of members. The French viewed this concept as ‘a barbarous legal mechanism unworthy of modern law’.23 The final draft of the Charter included ‘participation in a common plan or conspiracy’ in Article 6(a),’Crimes against Peace’. Although no such explicit reference is found in Articles 6(b) War Crimes and (c) Crimes against Humanity, the next sentence states that leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. The Tribunal found that the conspiracy charge could apply only to the crime of aggressive war, there was no separate crime of conspiracy, thus giving ground to the French concerns. While conspiracy is a fairly

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familiar charge in American and British law, it was not part of continental law systems and was unknown in international law. A few years after Nuremberg, Justice Jackson, who had strongly promoted the conspiracy concept, criticized this same doctrine in a separate opinion in Krulewitch v. United States: ‘The modern crime of conspiracy is so vague that it almost defies definition’.24 Count two: crimes against peace This count was also found controversial, as based on ex post facto legislation: in criminal law, under the principle of non-retroactivity of laws, a crime can only be regarded as a violation of a law in existence at the time of its perpetration. The defendants were charged by the prosecution with initiating war against Poland, the United Kingdom and France in September 1939, Denmark and Norway in April 1940, Belgium, the Netherlands and Luxemburg in May 1940, Yugoslavia and Greece in April 1941, the USSR in June 1941 and the United States in December 1941. They were also charged with violations of the Hague Conventions of 1899 and 1907, of the Treaty of Versailles of 28 June 1919, of the Kellogg-Briand Pact of 1928, of the Munich Agreement of 29 September 1939 and of the non-aggression treaty between Germany and the USSR of 23 August 1939 among others. In a ‘Motion adopted by all Defense Counsels’, the counsels argued that ‘The present Trial can, therefore, as far as Crimes against Peace shall be avenged, not invoke existing international law; it is rather a proceeding pursuant to a new penal law ... enacted only after the crime’ – another charge of retroactive legislation. In its judgment, the Tribunal affirmed that the maxim nullum crimen sine lege is not a limitation of sovereignty, but is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighboring states without warning is obviously untrue, for in such circumstances, the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished.25 The Tribunal pointed out that the Kellogg-Briand Pact had been ratified by 63 states, including Germany, Italy and Japan, at the outbreak of the war in 1939. In its opinion, the renunciation of war ‘as an instrument of national policy necessarily involves the proposition that such a war is illegal in international law and that those who plan and wage such

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a war, with its inevitable and terrible consequences, are committing a crime in so doing’.26 In order to overcome the objection that the Pact (or other international treaties) did not expressly state that waging a war of aggression was a crime, or set up international courts to try the individuals who engaged in such wars, the Tribunal invoked an ‘adaptive’, or ‘evolutive’ or ‘progressive’ concept of international law, which would hardly be admitted in most national or civil courts, at least in continental law systems. The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practised by military courts. The law is not static, but by continual adaptation follows the needs of a changing world. Indeed, in many cases treaties do no more than express and define for more accurate reference the principle of law already existing.27 The Tribunal concluded that ‘crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced’.28 For many commentators, the primary purpose behind including the crimes against peace charge at Nuremberg was to make a political statement to the world that, in the words of the judgment: to initiate a war of aggression ... is not only an international crime; it’s the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.29 Reliance on the Kellogg-Briand Pact has often been found questionable after Nuremberg. The Pact’s legislative history made it clear that it was an appeal to the conscience of the world and that its violation would not trigger criminal indictments on individual leaders. As noted by Simons,30 Kelsen has argued that even if the waging of a war in violation of treaties prohibiting a resort to war, such as the Kellogg-Briand Pact, was illegal under international law, there had been no transformation of such treaty provisions into municipal law by any state as of the date of the outbreak of the Second World War, the Moscow Conference or the signing of the London Agreement. In any event, Kelsen contended

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that, unlike the Hague Convention which could be violated by acts of state as well as those of individuals, the Pact did not forbid the acts of private persons. Another recurring criticism is that of double standards; guilt applied only to the losers. The Soviets did not have to answer for aggression against Poland, the Baltic States or Finland. Even though war was condemned in Nuremberg as the supreme international crime, events in the period following the trial have shown that leaders have committed crimes against peace in various parts of the world with impunity. Nuremberg did not prevent wars from being declared and waged; according to Persico (1994: 442), between 1945 and 1992, there were 24 wars between countries, at a cost of over six million lives. Count three: war crimes If the American priority was to establish the criminality of aggressive wars under international law, for the French and the Soviets war crimes were the major and crucial charge against the defendants. This count was based on well- established, traditional laws of war and was subject to fewer controversies with regard to its substance, with a few exceptions. Under this count, the defendants were accused of war crimes committed between 1 September 1939 and 8 May 1945, including murder and ill-treatment of civilian populations of or in an occupied territory and on the high seas, deportation of civilian populations for slave labour, murder and ill-treatment of prisoners of war, killing of hostages, wanton destruction and devastation of cities and villages not justified by the Hague Convention of 1907 and Annexed Regulations concerning the Laws and Customs of War on Land. Prisoners of war were also protected by the Second Geneva Convention of 1929, ratified by Germany in 1934. In his testimony at the trial, Hermann Göring said that, after reading the Hague Convention regulations on land warfare, he would have told the Führer that a modern war could not be waged under any circumstances, because of the technological expansion of modern war. The regulations would have to be cancelled or updated. He dismissed the allegations of atrocities and similar acts as being attributable primarily to the war of propaganda.31 In fact, millions of Polish and Russian civilians were killed by the Germans, millions of Soviet prisoners of war suffered atrocities and killings, and millions of detainees from many countries died in German extermination camps.

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Debates on this count allowed the defence to use the tu quoque (you too) argument, even if charges against the victors were rejected by the Tribunal as being outside their Charter mandate. The tu quoque plea has essentially never been accepted as a matter of law, but remains an allegation frequently made by defense counsels, as a means to challenge the impartiality and credibility of a tribunal. As stated by Taylor,32 on air bombing, the Luftwaffe attacks against Warsaw, Rotterdam and Coventry ‘paled by comparison’ with the British and US air raids of the war on Hamburg, Berlin, Dresden, Tokyo, Hiroshima and Nagasaki. Göring’s responsibility for the German air raids played no part in the Tribunal’s judgement. Admirals Doenitz and Raeder were accused of violating the London Submarine Protocol of 1936, to which 36 nations had adhered in 1939.33 However, it was shown that all belligerents, including the British and the Americans, had violated the Protocol. Otto Kranzbueher, representing Doenitz, pleaded that ‘the American Admiralty in practice interpreted the London Agreement in exactly the same way as the German Admiralty’.34 The massacre of thousands of Polish officers at Katyn in 1940, carried out by the Soviets, was a false charge against the Germans, as was finally admitted by Mikhail Gorbachev in 1990, and by Boris Yeltsin in 1993. Count four: crimes against humanity Nuremberg has remained famous for creating a new crime, the crime against humanity, for those crimes which could not be related to war crimes. However, this concept was narrowed down in the Charter and in the judgment. In the words of Professor Donnedieu de Vabres,35 the former French judge at Nuremberg, who wrote in 1947, ‘the category of crimes against humanity, which the Charter had introduced through a very small door, has, because of the judgment, gone into thin air’. Article 6(c) of the Charter enumerated these crimes as murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Crimes against humanity were therefore linked with the former counts – conspiracy, crimes against peace and war crimes. In its

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judgment, the Tribunal excluded such crimes as the murder of political opponents, the persecution of the Jews and the persecution, repression and murder of civilians in Germany before the war in 1939 from its purpose within the meaning of the Charter. As of that date, the Tribunal then linked crimes against humanity with war crimes: War Crimes were committed on a vast scale, which were also Crimes against Humanity; and insofar as the inhumane acts charged in the Indictment, and after the beginning of the war, did not constitute War Crimes, they were committed in execution of, or in connection with, the aggressive war, and therefore constituted Crimes against Humanity. The Tribunal had assumed that both war crimes and crimes against humanity in the sense of the Charter were crimes under customary international law at the time the acts were committed. Meltzer36 recalls that Sir Hartley Shawcross, the British Chief Prosecutor, had cautioned at Nuremberg that a broad view of crimes against humanity would involve an unacceptable interference in a country’s internal affairs. The prosecution of violations of international humanitarian and human rights law such as crimes against humanity, torture and genocide by international tribunals, and, more generally, the concept of universal jurisdiction, imply and require deliberate interference in countries’ internal affairs. The American Nuremberg trials Control Council Law No. 10 on the ‘Punishment of Persons guilty of war crimes, crimes against peace and crimes against humanity’ of 20 December 194537 created the framework for trials of German military and civilian personnel other than those dealt with by the International Military Tribunal, by establishing a uniform legal basis for their prosecution. The Moscow Declaration of 30 October 1943 and the London Agreement of 8 August 1945 were made integral parts of this Law. The Allied Control Council was composed of the commanders of the four zones of occupation in post-war Germany. In implementation of this Law, the US military government issued Ordinance No. 7 of 25 October 1946 that provided for three-judge courts. Six such courts, composed of US attorneys, were established at Nuremberg. They heard a total of 12 cases between 1946 and 1948, all but one involving multiple defendants. The cases concerned medical experiments on inmates in concentration or exterminations camps,

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judicial murders and other atrocities, SS Units charged with the murder of specific groups in conquered areas of the USSR (Einsatzgruppen), industrialists and financiers to the Nazi Party, and military cases. The courts indicted 185 defendants – out of those who stood trial, 35 were acquitted, 24 sentenced to death and others received prison sentences.38 The trials were important in establishing (or confirming) the international responsibilities of such white- collar perpetrators as industrialists and business leaders and medical doctors. However, the International Military Tribunal remains the principal historical and judiciary foundation for Nuremberg Law. Conclusion Nuremberg had its warts, which have been noted above: victors’ justice, the application of ex post facto legislation and the tu quoque arguments. Donnedieu de Vabres39 aptly summarized the value of the trial and some of its weaknesses. He acknowledged that the innovation provided by the London Agreement – the individual accountability of political and other leaders for their crimes, rather than ‘State’ responsibility – responded to an exigency of universal conscience. However, he added that criticisms should not be discarded; the Tribunal was not an international jurisdiction, but an inter-allied jurisdiction, a victors’ jurisdiction. The fragility of human justice, in particular political justice, which included Nuremberg, was an obvious truth. He qualified the International Military Tribunal as ‘an ad hoc jurisdiction, an institution created later than the crimes that it was to punish. Charges were vague, the punishments almost entirely left to the discretionary appreciation of the judges’. De Vabres recalled the words of the Nuremberg judgment that ‘the Charter was not an arbitrary exercise of power on the part of the victorious Nations, but in the view of the Tribunal ... it is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law’. Recalling that national law is the result of experience accrued over years, if not longer periods the Nuremberg Charter was drafted to deal with a situation without precedent; it was a law of ‘circumstances’. The London Charter was the work of only a few persons; some of them were later members of the Tribunal. What gave a legal basis to the Nuremberg judgment was less its conformity with the Charter than its conformity with the ‘movement of ideas’, the evolution of treaties. In summary, the London Agreement of 8 August 1945, the Charter, the Rules of procedure and the judgement itself were only ‘moments’ in the evolution of customary law.

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De Vabres recalled the affirmation of the French philosopher Pascal that ‘Justice without force is powerless, force without justice is tyrannical. One must therefore join force and justice’. De Vabres wrote that this was done in Nuremberg; even though this was a human justice, an incomplete justice, a relative justice was better than no justice. What were the alternatives? In his words, to kill discreetly the alleged criminals, following the Gestapo methods; a political punishment, such as applied to Napoleon when he was exiled to Elba Island, then to St Helena; or a widely publicized moral punishment? De Vabres discarded all these alternatives as they all presumed the accused guilty; a judiciary examination is required before a punishment is decided. In summary, for De Vabres, the Nuremberg judgment confirmed the supremacy of international law over national law. It also affirmed the primacy of conscience over the exigencies of discipline. In his conclusion, he wrote that the affirmation of the Nuremberg principles was illusory unless a permanent institution was created which would be entitled to apply them. Fifty-years later, the illusion gave place to the International Criminal Court. Supporters of the trial expected that it played a political role in reducing the tensions between victors and vanquished by substituting a legal process for the victims’ urge for revenge. By focusing the blame on important Nazi dignitaries, it was to decrease the risk that the whole German population would be assigned the lasting burden of collective guilt, even if claims that all Germans had been ‘willing executioners’ have been recently revived. At the same time, in delivering their stern but diversified judgments, the judges were conscious of their responsibilities for the future of Germany and Europe. A considerable amount of documentation on the Nazi era was researched and assembled for the trial, which, together with the records of the trial itself, has proved invaluable for historians, even if anti-Semitic pseudo-historians have chosen to ignore the evidence and deny the Holocaust. The immediate and later perception of the trial by the German people was, not unexpectedly, critical if not hostile. In 1953, the US State Department wrote that ‘The Germans have failed to accept the principles on which the trials were based and do not believe that those convicted were guilty ... . They adhere to the view that the majority of the war criminals were soldiers who were punished for doing what all soldiers do in war, or indeed were ordered do’.40 Burchard41 observes that, during the Cold War, West Germany rejected Nuremberg’s precedent, principally on the grounds that the Allies had applied ex post facto law, thus violating the nullum crimen

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principle. East Germany seemingly took up the case of Nuremberg by prosecuting minor Nazi perpetrators. The reunification of Germany marked the beginning of a positive approach to the Nuremberg legacy by German jurists, politicians and academics. In 1998, Germany was one of the most active supporters for the creation of the International Criminal Court. Even if it was an imperfect, political justice, Nuremberg remains the defining war crimes trial of the twentieth century, used later as a symbol, a model and a blueprint for the international criminal courts created in the 1990s and for the permanent International Criminal Court. Nuremberg made a significant contribution to international criminal law and justice. It established the principle and practice that individuals at the highest levels of government and armed forces could be prosecuted and judged fairly by an international tribunal for serious violations of international humanitarian law. It established international individual responsibility for crimes against peace, war crimes and crimes against humanity. ‘Obedience to superior orders’ was no longer acceptable as an absolute defense in international law for these crimes. Even the limited application of the new concept of ‘crimes against humanity’ by the Tribunal served as a basis and inspiration for the Genocide and Apartheid Conventions, as well as for the institutionalization of the system of ‘grave breaches’ and the extension of protection to civilian populations in the Geneva Conventions of 1949. Crimes against humanity are included in the Statutes of all international criminal tribunals created in the 1990s.

The Tokyo trial The Tokyo Trial has not enjoyed the same renown as the Nuremberg Trial, nor is it cited as a model, for good reasons. While it suffered from the same criticisms as Nuremberg – victors’ justice, retroactive legislation, double standards – it was, more than Nuremberg, a US- created and USdominated tribunal. Its proceedings were faulty, the immunity granted to the Emperor was questioned and there was substantial dissension among the 11 judges in their debates and judgments. The Trial lasted more than twice the duration of Nuremberg. Through neglect or intention, and unlike the judgment and proceedings of the Nuremberg Trial, those of the Tokyo Trial were never officially published and were only commercially published in 1977 and 1981, almost 30 years after the end of the trial.42

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The establishment of the Tokyo tribunal At the Cairo Conference, China, the United Kingdom and the United States issued a declaration on 1 December 1943 stating that ‘the purpose of this war is to stop and punish Japanese aggression’.43 On 26 July 1945, the three Allies – later joined by the USSR – issued the Potsdam Declaration44 announcing their intention to prosecute high-level Japanese officials for the same crimes committed by the Germans in the European war. Articles 6 and 10 of the Declaration, entitled ‘Proclamation Defining Terms for Japanese Surrender’, stated, inter alia: (6) There must be eliminated for all time the authority and influence of those who have deceived and misled the people of Japan into embarking on world conquest, for we insist that a new order of peace, security and justice will be impossible until irresponsible militarism is driven from the world. (10) We do not intend that the Japanese shall be enslaved as a race or destroyed as a nation but stern justice shall be meted out to all war criminals, including those who have visited cruelties upon our prisoners. In the Instrument of Japanese Surrender of 2 September 1945,45 Japan accepted the terms of the Potsdam Declaration. The authority of the Emperor and the Japanese government was made subject to General Douglas A. MacArthur, the Supreme Commander for the Allied Powers. A directive issued by the US Joint Chiefs of Staff on 6 October 1945 was approved by all nations taking part in the occupation of Japan. The directive46 ordered the investigation, apprehension and detention of all persons suspected of war crimes. The Supreme Commander was to appoint special international courts and to prescribe their rules of procedures. On 19 January 1946, MacArthur issued a proclamation establishing an ‘International Military Tribunal for the Far East for the trial of those persons charged individually, or as members of organizations, or in both capacities, with offences which include crimes against peace’.47 The main purpose of the Tokyo Trial was retribution, but there was also a determination to deter future wars and atrocities. As with Nuremberg, the intent was to assign criminality to individuals, and to reject the charge of collective responsibility of a whole nation and people. However, unlike Nuremberg, the drafting of the Tokyo Charter was not submitted to an international conference; it was essentially an

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American project. The Tokyo Charter was drafted by the Americans only and was approved unilaterally, also on 19 January 1946, by MacArthur, in the form of an executive order. The Allies were only consulted after its issuance, a subordinate position explained by the primary military role played by the United States in fighting the Japanese and achieving victory. The Charter, dated 26 April 1946, established the International Military Tribunal ‘for the just and prompt trial and punishment of the major war criminals in the Far East’. Its seat was in Tokyo. The supremacy of the United States was again asserted by the authority granted to the Supreme Commander, MacArthur, to appoint the 11 members (judges) of the Tribunal from the names submitted by the Signatories to the Instrument of Surrender, that is, Australia, Canada, China, France, New Zealand, the Netherlands, the United Kingdom, the USSR and the United States. India and the Philippines were added later, although they were not yet sovereign states. There were no alternates. The Supreme Commander also had authority to appoint the President of the Tribunal from among its members, another unfortunate difference from Nuremberg, where the President was selected by agreement of the judges. Macarthur appointed to that position Sir William Webb, a former Justice High Court of the Australian Commonwealth and Australian war crimes commissioner during the war: he was seen as an isolated figure, hesitant, authoritarian and, in stark contrast with the dignified Nuremberg Trial President, Sir Geoffrey Lawrence, unable to control a protracted, interracial, trilingual criminal trial. Although he resisted MacArthur’s attempts to direct the tribunal, bias was alleged against him, as he had served as an Australian government representative from 1943 to 1945, investigating and reporting on allegations of Japanese atrocities, war crimes and breaches of the Rules of Warfare, and had given his opinion as to liability.48 There was one Chief Counsel (Chief Prosecutor), Joseph B. Keenan – a US political appointee, considered by many a poor choice,49 and, again, not on a par with Justice Jackson, the eloquent and dynamic Chief Prosecutor at Nuremberg. There were ten associate counsels, each having the nationality of one of the ten countries other than the United States. Responsibility for investigation and prosecution rested solely on the Chief of Counsel, in contrast with Nuremberg, where there were four equal Chief Prosecutors. The crimes within the jurisdiction of the Tribunal were the same as those of the Nuremberg Charter: crimes against peace, conventional war crimes and crimes against humanity, including the participation in a common plan or conspiracy to commit the first and third category

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of crimes. Twenty- eight defendants of ‘class A’ were selected from a list of 80 high-level officials alleged to have planned and directed the war. They were charged with ‘offences which included crimes against peace’. The mandate of the Tribunal covered acts committed between 1 January 192850 and 2 August 1945. The procedures were generally similar to those of Nuremberg except for the level of judicial support required to approve a sentence; the Nuremberg Charter required a majority of three out of four judges for all convictions and sentences (Article 4(c)), while the Tokyo Charter set a majority of judges present. If votes were evenly divided, the vote of the President would be decisive. The proceedings were conducted in English and Japanese, to which Russian was added, with simultaneous interpretation in these languages. Japanese and American lawyers represented the defendants. As at Nuremberg, sentences included the death penalty. The indictment and the proceedings The trial was held from 3 May 1946 to 12 November 1948 in Tokyo. The defendants were nine senior civilian Japanese officials and 19 military officers. The civilians included four prime ministers, nine government ministers (foreign, war and navy), two ambassadors, three economic and financial leaders, one imperial adviser and the theorist of Greater Asia. The military included six generals, one admiral and one colonel. Japan’s Emperor, Hirohito, was granted immunity by the United States, overruling the demands of Australia, the USSR, China and New Zealand that he should be indicted. General MacArthur ensured a conspiracy of silence about Hirohito’s war role by directly tampering with witness testimony.51 The indictment was issued on 29 April 1946, in the name of the Chief Prosecutor and his ten assistants. Its central theme was that, since 1928, Japan’s foreign and domestic policies had been dominated by a ‘criminal militaristic clique’. There were 55 specific counts to the indictment: 36 representing crimes against peace, 16 represented murder (‘being at the same time Crimes against Peace, Conventional War Crimes, and Crimes against Humanity’) and three represented conventional war crimes and crimes against humanity. Twenty- one of the defendants were charged specifically with planning and initiating aggressive war against China, beginning with the invasion of Manchuria in 1931. All the defendants except two were charged with conventional war crimes and/or crimes against humanity in violation of the Hague and Geneva Conventions. The majority of the accused were charged with plotting aggressive war

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against the United States, the United Kingdom, or the USSR, singly or collectively: however, this ‘grandiose statement’, in the words of the final judgment, was dismissed by the Tribunal, as for example, ‘the conspirators [n]ever seriously resolved to attempt to secure the domination of North and South America’. The indictment accused the defendants of promoting a scheme of conquest that ‘contemplated and carried out ... murdering, maiming and ill-treating prisoners of war [and] civilian internees ... forcing them to labour under inhumane conditions ... plundering public and private property, wantonly destroying cities, towns and villages beyond any justification of military necessity; [perpetrating] mass murder, rape, pillage, brigandage, torture and other barbaric cruelties upon the helpless civilian population of the over-run countries’.52 The period between 4 June 1946 and 24 January 1947 was given to the prosecution. The defence developed its arguments until 12 January 1948. The first general challenge to jurisdiction was ‘that the members of this Tribunal being representatives of the nations that defeated Japan and which are the accusers in this action, a legal, fair and impartial trial is denied to these by arraignment before this Tribunal’. The motion was dismissed ‘for reasons to be given later’. Those reasons were, however, not given in the majority judgment. The second challenge was that Macarthur lacked the power to set up a tribunal. The answer was given in the majority judgment: Macarthur was acting as the agent of the Allies who had the authority to grant him such powers.53 The public hearings ended on 16 April 1948. After seven months of discussions, the judgment was rendered from 4 to 12 November 1948. The judgment In Nuremberg, separate and dissenting Opinions were allowed, yet only the Soviet judge filed a separate Opinion. At the commencement of the proceedings in Tokyo, the nine judges then present had unanimously decided to refrain from separate or dissenting Opinions. Only one judgment was to be delivered, reflecting the opinion of the majority, and the secrecy of the deliberations in camera was to be respected. The Indian judge, Radhabinod Pal, when he arrived later, declared himself not bound by the agreement, since he would thus forfeit his right to a dissenting Opinion. The agreement was therefore cancelled. The outcome was disastrous for the credibility of the Tribunal; there was one majority judgment from the United States, the United Kingdom, China, the USSR, the Philippines, Canada and New Zealand – followed by four separate or dissenting Opinions and one concurring Opinion.

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All those who dissented signed the majority judgment, except Judge Pal. Röling and Bernard signed with the proviso that their separate Opinions form part of the record. The majority judgment did not ‘find it necessary to consider whether there was a conspiracy to wage wars in violation of the treaties, agreements and assurances specified in the particulars annexed to Count 1. The conspiracy to wage wars of aggression was already criminal in the highest degree’. The judges found the existence of the criminal conspiracy to wage wars of aggression as alleged in Count 1 had been proved, subject to limiting the conspiracy to East Asia, the Western and South Western Pacific Ocean and the Indian Ocean, and a few islands in these oceans. The judges held that aggressive war was an international crime, basing itself on part of the Nuremberg judgment, with the latter’s interpretation of the legal effect of the Pact of Paris of 1928. However, most critics agree that crimes against peace were imposed retroactively. The Tribunal excluded any tu quoque arguments by excluding evidence implicating Allied states. The judges found all the defendants guilty by a vote of eight to three – the three dissenters were Judges Bernard (France), Pal (India) and Röling (the Netherlands). All defendants but two (Matsui, Commander-in- Chief of the Japanese Forces in Central China from 1937 to 1938 and Shigemitsu, Foreign Minister from 1943 to 1945) were found guilty of ‘conspiracy to wage aggressive war’. These two defendants were found guilty, the first of war crimes only – for which he was hanged – and the second of six other counts of aggressive war and war crimes, for which he was sentenced to seven years’ imprisonment. Five defendants were found guilty of ‘atrocities’, namely crimes against humanity, in addition to other crimes, chiefly ‘overall conspiracy’. They were all hanged. In summary, seven defendants were condemned to death by hanging – two former Prime Ministers, Hirota and Tojo – and five generals. The others were given jail sentences ranging from life to seven years. None was acquitted. The Australian President, Judge Webb, and judges Bernard and Pal were on record in opposition to any death sentence. The Australian President did not record any formal dissent with the sentences pronounced by the majority, but offered some reasons why imprisonment for life could have been preferred to the death sentence, including a parallel with the Nuremberg sentences. He raised one of the main challenges to the Tribunal judgment: the granting of immunity to the Emperor. For Webb, the Emperor’s immunity should be taken into account when determining the punishment of the accused found guilty.

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As did Judge Donnedieu de Vabres in Nuremberg, both President Webb and Justice Pal held that conspiracy had never been a part of international law, although the Chief Prosecutor and the majority judgment held the opposite view. Dissenting Opinions In his Dissenting Opinion,54 Pal stated that new crimes cannot be created for past events under international law and enforced without precedent. Aggression and conspiracy to commit aggression did not exist as crimes against international law and therefore could not be created ex post facto. That crimes were committed as a consequence of aggressive wars was beyond doubt. In fact, any war, a war of aggression or a war of self- defence, is the cause of crimes. That the Kellogg-Briand Pact of 1928 made aggressive wars illegal under international law was more than doubtful. Finally, Pal rejected the notion that those individuals who initiated such wars had committed crimes under the then applicable international law, and could then be punished by an international tribunal as highly questionable.55 Pal held that all the accused must be found not guilty of all charges in the indictment and should be acquitted of all those charges. For him, the ‘name of Justice should not be allowed to be invoked only for the prolongation of the pursuit of vindictive retaliation’.56 Pal and Judge Jaranilla (Philippines) opposed the decision of the Tribunal that evidence concerning the use of the atomic bombs over Hiroshima and Nagasaki was inadmissible. Pal condemned their use. Referring to the charge of execution of Allied airmen by the Japanese, he asserted that the real horror of the air warfare is not the possibility of a few airmen being captured and ruthlessly killed, but the havoc which can be brought by the indiscriminate launching of bombs and projectiles. The conscience of mankind revolts not so much against the punishment meted out to the ruthless bomber as against his ruthless form of bombing.57 Justice Röling held that aggressive war was not a crime under international law at the beginning of the Second World War. In his more nuanced Opinion, he asserted that, from the law as it stood, no one should be sentenced to death for having committed a crime against peace: internment for life would be the appropriate punishment for this crime. Those found guilty of conventional war crimes should be

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punished with the supreme penalty. He then challenged several of the sentences given by the majority Judgment.58 In his Dissenting Opinion, Judge Bernard59 said, ‘The crimes committed against the peoples of a particular nation are also crimes committed against members of the universal community’, a formula which was later used to justify the concept of universal jurisdiction for crimes against humanity and other conventional crimes. Judge Bernard acknowledged that the authors of the Charter were the victors and that only the government leaders of the defeated nations could be prosecuted. He blamed the ‘political non- organization of the world’ for the decision reached by ‘the victorious nations both judges and partakers in this decision’, to exclude the ‘eventual proclamation of the responsibility of the conquerors’. However, he gave legitimacy to the trial in finding the provision of a trial instead of summary punishment sufficient proof of the good will of the Allies ... . Inaction on the part of the victor nations would have deprived the world of a verdict, the necessity of which was universally felt.60 On conventional war crimes, Bernard wrote, ‘There can be no doubt that at all levels of its hierarchy the members of the Japanese Army and Police made themselves guilty of the most abominable crimes in respect of the prisoners of war, internees and civilians of the occupied regions’. He then gave a scale for the punishment of the accused according their degree of responsibility in the violation of the laws of war: punishment by death, life imprisonment, or imprisonment for a limited duration.61 Bernard faulted the procedure on several grounds. On due process, he wrote: Though I am of opinion that the Charter permitted granting to the accused guarantees sufficient for their defense, I think that these actually were not granted to them. Essential principles, violation of which would result in most civilized nations in the invalidity of the entire procedure, and the right of the tribunal to dismiss the case against the accused, were not respected. A second point was, for Bernard, the lack of a preliminary inquest conducted equally in favour of the prosecution and of the defence by a magistrate independent of them both, and with the benefit of the assistance of the defence counsel: he missed the French process by an investigating judge, the juge d’instruction. In Tokyo, the prosecution was carried out in

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personam and not in rem, claiming the right not to prosecute all the suspects at the same time, without proper control by the Tribunal. Another point was the lack of proper deliberations of all the judges in drafting the judgment. The 1050 pages of the judgment relating to findings of fact were drawn up first by a drafting committee, then submitted to the majority of seven judges, and then distributed to the remaining four justices. Bernard said in his dissent, ‘the eleven judges were never called to meet to discuss orally a part or in its entirety this part of the judgments’. He considered that ‘oral deliberations outside of all influence bearing on all produced evidence among all the judges who sat at the trials are a guarantee of justice ... . A verdict reached by a tribunal after a defective procedure cannot be a valid one’.62 Another procedural argument to invalidate the trial was, for Bernard, the failure to indict the Emperor Hirohito. He argued that the evidence brought forward at the trial had implicated him. On the Japanese declaration of war in December 1941, Bernard wrote: It cannot be denied that, it [the declaration] had a principal author who escaped all prosecution and of whom in any case the present Defendants could be considered as accomplices. Bernard agreed with Webb that the Emperor’s absence from the trial ‘was certainly detrimental to the defense of the accused’.63 Bernard (and Pal) disagreed with the prosecution and the majority judgment that there had been a conspiracy, a position also shared by the French judge in Nuremberg for the Nazi crimes. He wrote, in a Cartesian mode: No direct proof was furnished concerning the formation among individuals known, on a known date, at a specific point, of a plot the object of which was to assure to Japan the domination ... of some part of the world. What had been proved was only the existence among certain influential classes of the Japanese nation of the desire to seat at all costs the domination of Japan upon other parts of East Asia ... the question remains completely to ascertain whether by doing so they did or did not act criminally. The question was neither raised by the prosecution nor answered by the judgment of the majority.64

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Bernard agreed with Judges Pal and Röling, with some nuances, that the 1928 Pact of Paris had not established that aggressive war was illegal under international law. He appealed to natural law and morality to conclude that aggressive war did constitute a crime and that individuals could be held responsible for acts of state. He wrote: There is no doubt in my mind that such a war of aggression is and always has been a crime in the eyes of reason and universal conscience – expression of natural law upon which an international tribunal can and must base itself to judge the conduct of the accused tendered to it. In concluding, Bernard refrained from ‘venturing further in the formulation of verdicts, the exactitude of which would be subject to caution or to sentences, the equity of which would be by far too contestable’.65 Review of the judgment and sentence Under Article 17 of the Tokyo Charter, the record of the trial was to be transmitted directly to the Supreme Commander for the Allied Powers for his action. ‘Sentence will be carried out in accordance with the Order of the Supreme Commander for the Allied Powers, who may at any time reduce or otherwise alter the sentence, except to increase its severity’. The Nuremberg Charter gave this authority to the quadripartite Allied Control Council for Germany, not to a single official (Article 29). Before MacArthur made his decision, he called on 24 November 1948 for a meeting of the Allied Council for Japan, made up of diplomatic representatives of the Allied Powers in Tokyo, to give their opinions, although this step was not part of the Charter. The US representative recommended no change in the judgment. The other diplomats reflected the position of their own judges. France made no official comment, but the French diplomat, citing Judge Bernard’s dissent, made a personal appeal for clemency. MacArthur found nothing of commission or omission itself of sufficient import to warrant his intervention in the judgment. He directed the Commanding General of the Eighth Army to execute the sentences as pronounced by the Tribunal.66 The Treaty of Peace with Japan signed in September 1951 provided that67 Japan accepts the judgments of the International Military Tribunal for the Far East and of other Allied War Crimes Courts ... , and will

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carry out the sentences imposed thereby upon the Japanese nationals imprisoned in Japan ... In the case of persons sentenced by the International Military Tribunal for the Far East, such power [to grant clemency, to reduce sentences and to parole] may not be exercised except on the decision of the majority of the governments represented on the tribunal, and on the recommendation of Japan. The final decision of their executions was carried out on 23 December 1948 after the United States Supreme Court had ruled on 20 December, in considering a defence appeal, that it had no jurisdiction to review the IMTFE judgment.68 A recent reappraisal of the Tokyo trial Boister and Cryer have made a thorough legal analysis of the trial, showing how it was created, the US influence on its creation and management, the arguments and disagreements between the prosecution, the defence and the judges, on the basis of a review of an extensive documentation. Some of their findings follow. On the nature and jurisdiction of the Tribunal, the authors found that ‘none of the jurisdictional challenges fundamentally undermined the lawfulness of establishing the Tribunal, which was based on Japanese acceptance of the Potsdam Declaration’. However, they criticized the perfunctory or even dismissive way in which the Tribunal dealt with the defence’s challenges.69 The selection of individuals to stand trial ‘was a process plagued by poor organisation and consultation, and little information, knowledge, and time. As a result, the omission of individuals of similar or greater authority, in particular the emperor, remained extremely questionable from the point of view of fairness’, and legitimacy. ‘The indictment process was badly managed, inexpertly undertaken, politically influenced, and overambitious’.70 The trial process violated the undertaking in Article 1 of the Tokyo Charter to give the accused a just trial, through bias, judicial absenteeism, judicial substitution, inadequate translation, continuation of the trial in the absence of the accused, irregular decision-making, inadequate time to prepare, and so forth. The authors concluded that the ‘conduct of the trial did not meet the most elementary standards of international law ... . While the trial was formally fair in terms of the rights and obligations in the Charter and Rules, it was not substantively fair in terms of application of those rules. In this sense, it really was victors’ justice’.71

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On the law, the majority judgment on war crimes was on strong grounds. On conspiracy, ‘The claim that conspiracy was a part of international law by virtue of it being a general principle of international law is not sustainable, and without any precedent in international law any claim to a customary status must also fail’.72 On the sentences: The very broad discretionary powers of sentence granted to the Tokyo IMT [International Military Tribunal] by the Charter, and the failure of the Tokyo IMT to provide reasons for particular sentences, serve as a precedent in international criminal law for a considerable judicial discretion ... it is not a positively regarded precedent.73 While the authors’ intention was not to be a brief in favour of rehabilitating the Tokyo Trial by denying its flaws, their demonstration of the weaknesses of the trial tends to be a lesson about the pitfalls of prosecuting international crimes. In contrast with Nuremberg, Tokyo has not remained as a model for later international criminal tribunals. Japanese views on the trial While the Emperor and Japan’s leaders after the defeat had to accept the Instrument of Japanese Surrender and the creation of the Tribunal, later governments pursued the policy of the ‘Three Nos’: no admission of aggression, no repentance and apology and no compensation for their victims. The official line was and is that Japan did not fight or intend to fight aggressive wars, but did commit some aggressive acts (i.e., atrocities). The Japanese felt that the accused deserved punishment for losing the war rather than for crimes, and, as for the German people, that only the vanquished are tried for crimes. In summary, the Tokyo Trial was not perceived as legitimate among many ordinary Japanese people.74

Conclusion Justice or politics? Politics played a major role in the creation of both tribunals by imposing victors’ justice on only German and Japanese defendants. Politics played a role in keeping the alleged war crimes and crimes against peace of the Allies out of reach of the Tribunals. American political interests dominated the Tokyo Trial by giving immunity to the Emperor. The legality of the trials was rightly challenged as the defendants were tried and punished for crimes expressly defined in Charters adopted

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well after the alleged crimes were committed, a violation of the principle of non-retroactivity of criminal law. Furthermore, no provision in the Hague or Geneva Conventions, nor in the 1928 Pact of Paris, prescribed that individual violators would be prosecuted and condemned by an international tribunal. Also, the Tribunals’ procedural rules inadequately protected the rights of the accused. In addition to these valid charges, the Tokyo Tribunal had its own serious problems: an excessive American domination (e.g., MacArthur), too many judges, an Australian President and an American Prosecutor who did not match the standards of Sir Geoffrey Lawrence and Justice Jackson in Nuremberg. In spite of their imperfections and partiality, the Tribunals created a major judicial precedent: for the first time, high-level political and military leaders were made accountable for crimes committed in their name or in the name of their regime; individual responsibility was added to state responsibility. A civilized, punctilious judicial process replaced raw vengeance and summary executions. ‘Nuremberg Law’ added the concept of crimes against humanity to the crimes defined in the Geneva and Hague Conventions. Nuremberg was a first step (or ‘moment’, in Donnedieu de Vabres’s words) in the slow evolution from toothless international humanitarian law, poorly enforced by national authorities or courts, to a regime of effective sanctions applied by international tribunals under international criminal law. International law finally addressed individuals, rather than being restricted to relations between states. The Nuremberg and Tokyo precedents served as milestones in the creation of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda respectively in 1993 and 1994 (see the following two chapters). They showed the feasibility of creating such international Tribunals, and they gave a legal and judicial basis for the later Tribunals, for their creation and jurisprudence. The establishment of the International Criminal Court is another tribute to be given to Nuremberg.

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Part I The International Tribunals

It took almost half a century after the Nuremberg and Tokyo International Military Tribunals for the revival of the concept and practice of international criminal courts. Triggered by grave violations of international human rights and humanitarian law – war crimes, crimes against humanity, genocide – two international criminal tribunals were created by the UN Security Council under Chapter VII of the UN Charter: the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993, and the International Criminal Tribunal for Rwanda (ICTR) in 1994. They were not military courts, like the Nuremberg and Tokyo Tribunals; they were ‘real’ international courts, with judges representing the main legal systems of the world, while the judges and prosecutors of the Nuremberg and Tokyo Tribunals were only appointed by the victors. An important step forward in the building up of an independent international criminal justice system, both Tribunals are due to close on completion of their trials, scheduled for 2013 for the ICTY and 2010 for the ICTR – the latter date will probably be extended until 2013.

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2 The International Criminal Tribunal for the Former Yugoslavia

The International Criminal Tribunal for the Former Yugoslavia (ICTY) was created by the Security Council in 1993, that is, 47 years after the Nuremberg judgments were rendered. The new Tribunal was first praised as a revival of Nuremberg, a court where perpetrators of war crimes, crimes against humanity and genocide could be tried and sentenced under fair procedures by impartial and independent judges of different nationalities. Fifteen years later, and after the indictment of 161 persons for serious violations of international humanitarian law committed in the territory of the Former Yugoslavia, an assessment of the merits and demerits of the Tribunal can only be tentative. Moghalu1 has called the Tribunal ‘a bundle of contradictions, a showcase of the tensions between liberal legalism, realism, and the international society perspective’. The Tribunal has been labelled as a political tool of the Western powers, and particularly of the United States, the new ‘victors’. Can the Tribunal be independent when it was created by these states and needs their support for its financing and management? How independent can it be from the Security Council which created the Tribunal as a subsidiary organ? For some observers, the reason for the creation of the Tribunal was not inspired by an unusual respect for international humanitarian law and the need to punish perpetrators, but, rather, an alibi for the inaction of Western nations when war crimes and other atrocities took place, and their refusal to intervene militarily to stop the war. Its selection of indictees has been deemed biased against Serbs. Serbs, Croats and Muslims have often protested against the Tribunal’s judgments on various grounds. 51

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It has been criticized for being too remote, both in distance from the locale and from the population – the Tribunal sitting in The Hague to try crimes committed in the Former Yugoslavia – and for not including any members of the ethnic groups involved in the Yugoslav wars as members of the court. Diplomats have attacked the Tribunal for being slow and expensive, with cumbersome procedures and few results. The creation of the Tribunal by the United Nations Security Council has been challenged by jurists on the basis that international tribunals should only be created through diplomatic negotiations, the approval of a Statute and ratification by a set number of states, as was done in 1998 for the International Criminal Court. The later decisions of the Security Council to close the Tribunal by 2010 seemed to be caused to a large extent by ‘justice fatigue’, an indication that cutting costs was more important than administering fair justice, although the trial of Slobovan Milosevic and the recent arrest and trial of Radovan Karadicz had given a new life to, and justification for, the Tribunal. In the event, it is likely that the last trials of the Tribunal will take place in 2013, while that of Karadzic may only be completed in 2014. This chapter briefly reviews first the origin and creation of the Tribunal, the main elements of its Statute, then its achievements followed by its completion strategy.

The origins Wars started in Croatia and Bosnia when the Federal Republic of Yugoslavia broke up into several independent countries. Croatia and Slovenia declared their independence in 1991, followed by Macedonia and Bosnia in 1992.2 While the secession of Slovenia and Macedonia were relatively peaceful, Serb military and paramilitary forces started a war when Croatia declared independence in June 1991, in order to protect the Serb minority. Another conflict began in newly independent Bosnia in April 1992, where the strong Serb minority (30 per cent) was determined to remain within a united Yugoslavia and to build a greater Serbia. By 1993, the Bosnian Muslim government was besieged in the capital, Sarajevo, surrounded by Bosnian Serb forces who controlled around 70 per cent of the country. In Central Bosnia, another war opposed Muslim forces to Bosnian Croats who wanted to form part of a greater Croatia. The UN had deployed the UN Protection Force (UNPROFOR) to monitor a ceasefire and to establish ‘safe zones,’ including Sarajevo and Srebrenica. In July 1995, Srebrenica became the site of

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the worst massacre in the conflict: approximately 7,500 Muslim men and boys were systematically killed by Bosnian Serb forces. In December 1995, the Dayton Peace Accord was signed by the parties to the conflict under pressure by the United States and other governments in the Contact Group, putting an end to the conflict in Bosnia.3 In 1998, an internal conflict opposed the Kosovo Liberation Army and Serb armed forces. Following a NATO air campaign against Yugoslavia from 24 March to 10 June 1999, Serb troops withdrew, replaced by the deployment of the NATO-led Kosovo Protection Force (KFOR). Kosovo was placed under an interim UN administration by resolution 1244 of the UN Security Council on 10 June 1999. Kosovo’s political institutions declared independence from Serbia on 17 February 2008. The wars caused approximately 100,000 civilian and military casualties, and 2 million refugees and internally displaced persons, during the period April 1992 to November 2005. These casualties were caused to a large extent by planned, systematic ‘ethnic cleansing’ intended to create ‘pure’ territories by initially expelling Muslims and Croats from towns and houses in which they had lived for centuries, and Serbs from Croatia. This was carried out through forced expulsions, terror and massacres, as well as rape and torture in detention camps. The reality of the atrocities was attested to in several UN reports. All parties to the conflict had committed atrocities, but there were more allegations of violations committed by Serbian and Bosnian Serb forces against Bosnian Moslem civilians than by or against any other ethnic or religious group. The UN reports were condemned by the Serbs as ‘one-sided, full of prejudice and politicised’.4

The creation of the tribunal Based on French and Italian draft resolutions, the Security Council approved resolutions 808 on 22 February 1993 and 827 of 25 May 1993, including the Statute of the Tribunal in the latter’s Annex. Roland Dumas, the French Foreign Affairs Minister, told a French journalist later: ‘The tribunal was a political weapon to threaten Karadzic and Mladic. It was a means to lead them to a settlement. I also hoped that it could play a dissuasive role’. The Chinese were reticent but were told that Tibet would not be involved. Russia had its own internal problems and Boris Yeltsin needed American support. Islamic countries, including Pakistan, a non-permanent member of the Security Council at the time, supported the resolutions.5

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Both resolutions 808 and 827 of the Security Council determined that the continuing reports of widespread violations of international humanitarian law in the Former Yugoslavia, including reports of mass killings and the continuance of the practice of ethnic cleansing, constituted a threat to international peace and security – an essential pre-requirement for the Council to take action under Chapter VII of the UN Charter entitled ‘Action with respect to threats to the peace, breaches of the peace, and acts of aggression’. This Chapter includes both measures not involving the use of armed force – such as interruption of economic relations and of means of communication, and the severance of diplomatic relations – and, if the former are inadequate, military action ‘as may be necessary to maintain or restore international peace and security’ (Articles 41 and 42). Creating a tribunal for the trial of individuals to maintain or restore peace was indeed an innovative move for the Council and a creative broadening of its Charter mandate. In resolution 827, the Security Council, acting under Chapter VII of the UN Charter, decided ‘to establish an international tribunal for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia between 1 January 1991 and a date to be determined by the Security Council upon the restoration of peace’ and adopted the Statute of the Tribunal. In the Preamble of the resolution, the Security Council had expressed broader expectations for the Tribunal: the establishment of a tribunal would contribute to the restoration and maintenance of peace, and to ensuring that the violations of international humanitarian law would be halted and effectively redressed. Later resolutions of the Security Council confirmed these expectations.

The statute of the tribunal The Statute was adopted by resolution 827 on 25 May 1993, and was amended by the Security Council seven times between 1998 and 2006.6 Its main elements follow. The Tribunal has the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949 – persons violating the laws and customs of war (the Law of The Hague) – persons committing genocide (the 1948 Genocide Convention), crimes against humanity (in part, the law of Nuremberg) (Articles 1–5). The Tribunal and national courts have concurrent jurisdiction to prosecute persons for serious violations of international

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humanitarian law committed in the territory of the Former Yugoslavia, but the Tribunal has primacy over national courts (Article 9). The Tribunal, whose seat is in The Hague, consists of three organs: the Chambers, the Prosecutor and a Registry (Article 11). The first organ, the Chambers, was originally composed of 11 independent judges of different nationalities serving in two Trial Chambers and one Appeals Chamber. Several amendments created a third Trial Chamber, and increased the number of judges to 14, then 16 – the number of ad litem judges from 9 to 16, and back to 12 by the end of 2008.7 The Appeals Chamber consists of seven permanent judges: five from the permanent judges of the ICTY, and two from the eleven permanent members of the International Criminal Tribunal for Rwanda (ICTR). These seven judges also constitute the Appeals Chamber of the ICTR. The judges are of different nationalities. They should be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices. In the overall composition of the Chambers and sections of the Trial Chambers, due account is taken of the experience of the judges in criminal law and international law, including international humanitarian law and human rights law (Article 13). They represent the main legal systems of the world. Permanent and ad litem judges are elected by the UN General Assembly from a list submitted by the Security Council. Permanent judges are appointed for four years, and are eligible for re- election (Article 13 bis and ter). The judges elect their President. The current President is Patrick Lipton Robinson (Jamaica), elected in November 2008. The second organ is that of the independent Prosecutor, who is appointed by the Security Council on nomination by the SecretaryGeneral. The Prosecutor acts independently as a separate organ of the Tribunal; he is not to seek or receive instructions from any government or from any other source (Article 16). His Office conducts investigations – by collecting evidence, identifying witnesses, exhuming mass graves – and prepares indictments and prosecutions before the judges. Article 15.3 of the Statute of the International Criminal Tribunal for Rwanda, established in November 1994 (Security Council resolution 955) stated that the ICTY Prosecutor also serves as Prosecutor for the ICTR. Resolution 1503 of 28 August 2003 established a separate position for the ICTR Prosecutor. The present Prosecutor of the ICTY is Serge Brammertz (Belgium), appointed in January 2008. Carla Del Ponte, the former Prosecutor, has

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summed up aptly the efforts required by international prosecutors and the difficulties they face: ‘Making the tribunal’s prosecution efforts effective required me and the members of the Office of the Prosecutor to summon the will to confront a loftier and thicker muro di gomma [the wall of rubber, i.e. the disguised or diplomatic rejection] than I had ever encountered, to keep demanding that reluctant states and leaders cooperate with these tribunals, to keep demanding the hand- over of evidence that incriminate powerful political and military figures, to keep demanding protection for witnesses ... to keep demanding that the accused be arrested and transferred to the tribunal’s custody’.8 The third organ is the Registry, responsible for the administration and judicial support services of the Tribunal, including the translation of documents and the interpretation of court proceedings (Article 17). The Registry’s judicial responsibilities cover the organization of the hearings, the legal filings and archives, the operation of the legal aid programme for the indigent defendants, the provision of assistance and protection to witnesses and the management of the Detention Unit. Together with the President, the Registry carries out diplomatic functions. It is also in charge of all communications to and from the Tribunal. It is currently headed by Hans Holthuis (Netherlands), appointed in January 2001. Judgments are rendered by a majority of the judges of a Trial Chamber in public, accompanied by a reasoned opinion in writing. Penalties are limited to imprisonment – as a contrast and an advance over Nuremberg, the death penalty is excluded – to which may be added the return of any property and proceeds acquired by criminal conduct to their rightful owners (Articles 23, 24). Imprisonment is served in one of the States that have signed an agreement with the United Nations to accept convicted persons (Article 27). By the end of 2008, convicted persons were serving their sentences in Austria, Denmark, Finland, France, Germany, Italy, Norway, Spain, Sweden and the United Kingdom. The Appeals Chamber hears appeals from persons convicted by the Trial Chambers or from the Prosecutor on: (a) an error on a question of law invalidating the decision, or (b) an error of fact which has occasioned a miscarriage of justice. The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers (Article 25). Although judicially independent, the Tribunal relies on international cooperation in order to fulfil its mandate. Cooperation by States or

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international organizations is vital for the collection of evidence, and even more crucial for the arrest, detention and transfer of accused persons to the Tribunal (Article 29). States can also contribute personnel or financial resources through the Tribunal’s Trust Fund. Budget and staffing The Tribunal’s expenses are borne by the regular budget of the United Nations (Article 32), thus providing the Tribunal with an assured income, subject to the approval of the General Assembly. The Tribunal’s budget has increased from year to year, as shown below in table 2.1 (net in U.S. dollars). As of January 2010, the Tribunal was employing 1050 staff members, with 83 nationalities represented.9

Table 2.1 International criminal tribunal for the former Yugoslavia: budgets 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002–2003 2004–2005 2006–2007 2008–2009 2010–2011

276,000 10,800,000 25,300,000 35,430,622 48,587,000 64,775,300 94,103,800 95,942,600 96,443,900 223,169,800 271,854,600 276,474,100 342,332,300 301,895,900

The validity of the establishment of the tribunal In a motion filed with the Trial Chamber on 23 June 1995, Dusko Tadic’s counsels challenged the jurisdiction of the Tribunal first on the grounds that it had not been established in a valid manner, because the Security Council lacked the power to do so. The Appellant claimed that, in order ‘to be duly established by law, the Tribunal should have been created either by treaty, the consensual act of nations, or by amendment of the Charter of the United Nations, not by resolution of the Security Council’.

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On 2 October 1995, the Appeals Chamber made a ‘Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction’,10 an appeal lodged against a judgment rendered by Trial Chamber on 10 August 1995.11 The Appeals Chamber agreed that the Security Council could establish a subsidiary organ with judicial powers, falling ‘squarely within the powers of the Security Council under Article 41’ (para. 36). The Security Council has resorted to the establishment of a judicial organ in the form of an international criminal tribunal as an instrument for the exercise of its own principal function of maintenance of peace and security, that is, as a measure under Chapter VII of the UN Charter contributing to the restoration and maintenance of peace in the Former Yugoslavia (paras. 38 and 40). On examination of the Tribunal’s Statute and of the Rules of Procedure and Evidence adopted pursuant to the Statute, the Appeals Chamber concluded that the Tribunal had been established in accordance with the rule of law. The fair trial guarantees in Article 14 of the International Covenant on Civil and Political Rights have been adopted almost verbatim in Article 21 of the Statute. The Appeals Chamber agreed with the Trial Chamber’s determination concerning the question relating to the alleged violation of the sovereignty of States (para. 59): it should be noted that the crimes which the International Tribunal has been called upon to try are not crimes of a purely domestic nature. They are really crimes which are universal in nature, well recognised in international law as serious breaches of international humanitarian law, and transcending the interest of any one State. The Trial Chamber agrees that in such circumstances, the sovereign rights of States cannot and should not take precedence over the right of the international community to act appropriately as they affect the whole of mankind and shock the conscience of all nations of the world. There can therefore be no objection to an international tribunal properly constituted trying these crimes on behalf of the international community.

Achievements As shown on Presentation 2.1, by June 2010 the Tribunal had indicted 161 persons for serious violations of international humanitarian law in the territory of the Former Yugoslavia, and had concluded proceedings

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of 125 accused. Twelve had been acquitted. The sentences ran from a minimum of two years to life imprisonment. By June 2010, 18 accused had pleaded guilty before or during their trials, giving more legitimacy to the Tribunal. Presentation 2.1 Key figures of ICTY cases as of June 2010 The Tribunal has indicted 161 persons for serious violations of international humanitarian law committed in the territory of the Former Yugoslavia 35 in custody at the UN ICTY Detention Unit 1 on provisional release until further notice Ongoing proceedings: 36 accused in 15 cases 16 before the Appeals Chamber (4 cases) 18 currently at trial (9 cases) 2 at-large: Goran Hadzic, Ratko Mladic Concluded proceedings: 125 accused in 89 cases 12 acquitted (9 cases) 64 sentenced (52 cases) 4 awaiting transfer 26 transferred 31 have served their sentence 3 died while serving their sentence 13 referred to national jurisdiction pursuant to Rule 11 bis (8 cases) 36 had their indictments withdrawn or are deceased (22 cases) Source: Excerpted from ‘Key figures of ICTY Cases,’ 30 June 2010. www.icty.org/sections/TheCases/KeyFigures, retrieved 29 August 2010.

Most of the accused were Serbs or Bosnian Serbs, others were Croatians, Muslim Bosnians and Kosovars. A few notes are given on some of the more senior accused in each group.12 Serb and Bosnian Serb cases Senior political and military leaders have been tried or are being tried by the Tribunal. Only a few such cases are related hereunder. The highest level and most publicized cases brought to the Tribunal were those of Slobovan Milosevic and of Radovan Karadzic, the political leaders mainly responsible for the wars in the Former Yugoslavia and the crimes committed by Serb military or paramilitary forces during these wars.

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The aborted trial of Slobovan Milosevic (Case IT- 02-54) Slobovan Milosevic was President of Serbia from 26 December 1990 and President of the Federal Republic of Yugoslavia (FRY) from 15 July 1997 until 6 October 2000; as FRY President, he was also the President of the Supreme Defence Council of the FRY and the Supreme Commander of the Yugoslav Army. By resolution 780 of 6 October 1992, the Security Council established a Commission of Experts to investigate and collect evidence on ‘grave breaches of the Geneva Conventions and other violations of international humanitarian law’ in the conflict in the Former Yugoslavia. When the Commission first met in December 1992, U.S. Secretary of State Lawrence Eagleburger gave his ‘naming names’ speech; he announced that the United States had identified ten suspected war criminals who should be brought to trial. The list included Slobovan Milosevic, Radovan Karadzic and General Ratko Mladic. Milosevic was first indicted by the Tribunal during his tenure as President, the first- ever serving head of state, on 24 May 1999 for violations of the laws and customs of war and crimes against humanity committed against the Kosovo Albanian population in 1998 and 1999. Two days before, in a press conference held on 22 May, the Tribunal’s Prosecutor, Louise Arbour, had announced this indictment against Milosevic and four other persons for crimes against humanity including deportation, persecution and murder, showing her independence and determination against political pressures from Western diplomats who advised her not to do so. Discreet negotiations were then going on between Western countries, Russia and Belgrade leading to a possible ‘deal’ according to which Milosevic would accept the deployment of an international force in Kosovo while criminal investigations against him would be shelved. To journalists who asked if this indictment was opportune, Arbour replied that a credible durable peace was impossible without justice. French President Jacques Chirac was the first head of state to react to the indictment. On 27 May, he hailed Milosevic’s indictment as a ‘major event ... a great progress of universal conscience ... showing that, hereafter, no leader carrying out criminal politics could enjoy impunity’. Moscow called the indictment a political decision.13 On 6 March 2001, Prosecutor Carla Del Ponte received a letter from Kofi Annan, the UN Secretary- General, encouraging her ‘in the future to confine her interventions to matters that are more directly within the sphere of your lawful concern’, while ‘naturally wishing to respect your independence as Prosecutor’. She had asked the

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United States to continue making financial assistance to Yugoslavia contingent upon Belgrade’s cooperation with the Tribunal’s efforts. Annan felt that her discussion of more general issues, such as the granting and withholding by States and international organizations of economic assistance to Yugoslavia might not prove productive. Del Ponte took this mild rebuke as political interference and ignored the letter.14 On 1 April 2001, under U.S. financial pressures, the authorities of the FRY decided to jail Milosevic in Belgrade and indicted him for abuse of power and corruption. President George W. Bush told Yugoslavian President Kostunica on 9 May 2001 that U.S. and international aid depended on Belgrade’s cooperation with the Tribunal. On 2 May 2001, the French newspaper Le Monde published an interview in which Del Ponte demanded that Serbia transfer Milosevic to The Hague and that the international community, by which she meant France, assert additional pressure upon Belgrade to do so. In a meeting at the Quai d’Orsay, Hubert Védrine, the French Minister of Foreign Affairs, bluntly told Del Ponte what he thought of the role of the international Tribunal: France has a mission to bring Yugoslavia back into the community of European nations, into the family of European nations. In so doing, France has to keep a perspective that is much broader and farsighted that the little patch of the international Tribunal ... I, as a minister of France, have a vision of the future. And you have your little tasks you have to fulfill, your shortsighted limited thing.15 On 29 June 2001, again following U.S. financial pressures, Milosevic was transferred to the Tribunal in The Hague by the government of Serbia led by Zoran Djindjic, without the approval of Kostunica. His 1999 indictment for crimes against humanity and violations of the laws or customs of war in Kosovo was amended in June and October 2001. He was charged with deportation, murder, persecutions on political, racial or religious grounds and other inhumane acts. A second indictment for Croatia was submitted on 8 October 2001, and amended in October 2002 and July 2004. Charges similar to those of the Kosovo indictment were included, together with a charge of grave breaches of the Geneva Conventions of 1949. A third indictment concerning Bosnia and Herzegovina was issued on 22 November 2001, and amended in November 2002. It added a charge of genocide and complicity in genocide to the charges of crimes against humanity, grave

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breaches of the Geneva Conventions of 1949 and violations of the laws or customs of war.16 On 3 July 2001, Milosevic appeared before the Tribunal alone, without lawyers. In a defiant stance, he said: ‘I consider the tribunal as a false tribunal and indictments false indictments’ and that the aim of the trial was to provide false justification for the war crimes NATO committed in Yugoslavia. He refused to enter a plea of guilty or not guilty for each of the indictments. In each case, the Tribunal then decided that he had entered a not guilty plea. By order of the Appeals Chamber on 1 February 2002, all three indictments were to be heard in one trial. His trial commenced before Trial Chamber III on 12 February 2002. The Prosecution concluded its case regarding Kosovo on 11 September 2002, and started the presentation of its case regarding Croatia and Bosnia and Herzegovina on 26 September 2002. The prosecution concluded the presentation of its evidence on 25 February 2004. Hartmann17 gives details on ‘behind the scene’ action or inaction in the Tribunal. She explains the delays with which the Prosecution issued its indictments, initially limited to Kosovo. She blames U.S., British and French authorities for not releasing all relevant information on the case, in the fear that some of it would incriminate them.18 In addition to delays by the Office of the Prosecutor, by the use of the Tribunal by Milosevic as a political forum, and numerous procedural incidents, a complicating factor was the health of the accused, causing the trial to be adjourned on five occasions, and extending even further an overlong trial. Milosevic was to start his defence in July 2004. However, at the end of August 2004, the judges ordered a new postponement, new health checks and said that they would consider imposing a defence counsel. Slobovan Milosevic died in jail on 11 March 2006. On 14 March 2006, the Trial Chamber terminated the proceedings against the accused. The Tribunal released a statement saying that Milosevic’s death ‘will prevent justice to be done in his case’. Richard Holbrooke disagreed: ‘Justice was served by the existence of this Tribunal, the exposure of his crimes and the fact that he ended his days in jail’.19 The arrest and trial of Radovan Karadzic (Case IT-95-5/18) After the overlong and unfortunate ending of the Milosevic trial, the arrest of Karadzic in Belgrade on 21 July 2008 and his transfer to The Hague seemed to repair the public image of the Tribunal.20 Karadzic became President of the National Security Council of the socalled Serbian Republic of Bosnia and Herzegovina on 27 March 1992;

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he became President of the three-member Presidency of this Republic from 12 May until 17 December 1992. He was the sole President of the Republika Srpska and Supreme Commander of its armed forces from 17 December 1992. Karadzic was first indicted by the Tribunal on 25 July 1995 and charged with genocide and other crimes committed against civilians. A second indictment, dealing with the Srebrenica massacre of July 1995, was confirmed on 16 November 1995. On 11 July 1996, the Trial Chamber confirmed all counts of the indictments, being satisfied that the Prosecutor had presented evidence constituting reasonable grounds for believing that Karadzic had committed the alleged crimes. It issued an international arrest warrant, to be sent to all States and to the NATOled multinational military implementation force (IFOR), which was then operating in Bosnia and Herzegovina. Also on 11 July 1996, the President of the Tribunal, Antonio Cassese, reported the failure of the FRY and of Republika Srpska to cooperate with the Tribunal in the arrest of Karadzic and other accused, a violation of their obligations. Consolidating the two initial indictments, an amended indictment (IT-95-5/18) was confirmed on 31 May 2000, and included one count of a grave breach of the 1949 Geneva Conventions, three counts of violation of the laws or customs of war, two counts of genocide and five counts of crimes against humanity. In spite of a number of resolutions of the Security Council, Karadzic remained at-large for 13 years, hiding in disguise and under an assumed name in Belgrade itself, after leaving his house in Pale in 1997. Hartmann21 reports that, in a filmed interview of January 1997, Karadzic claimed that Richard Holbrooke had proposed to him the following compromise: Karadzic would withdraw from politics in anonymity in exchange for American protection versus the Hague Tribunal. In May 1997, French President Jacques Chirac wanted to have Karadzic arrested in Pale. However, Boris Yeltsin rejected this plan, as ‘Karadzic knows too many things about Milosevic’. American diplomats and military leaders tried several times to convince Karadzic to go into exile as an alternative to a trial. The French accused the Americans of opposing the arrest of Karadzic; the Americans suspected the French of collusion with the Serbs. Both governments feared that the arrest of Karadzic would impede or block the return to peace in Serbia. Finally, Karadzic’s arrest was due to political changes in Serbia encouraged by the European Union. In general elections held on 11 May 2008, the Democrats, the party of Serbia’s pro-European President, Boris Tadic, won after the EU decided to give Serbia a stabilization and association

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agreement, seen as a first step on the path to membership in the Union. The arrest of Karadzic and other indicted war criminals was one of the main conditions of Serb progress towards EU membership. Karadzic was arrested on 21 July 2008, following the formation of the new government on 7 July, and he was transferred to the Tribunal on 30 July. On 29 August 2008, as he failed to enter a plea, a plea of not guilty was entered on his behalf. Like Milosevic, Karadzic chose to act as his own defence lawyer. His trial started on 26 October 2009. Following several postponements, his trial resumed on 13 April 2010. Karadzic’s arrest and his trial are seen as a belated success for the Tribunal, besides being a success for the European Union.22 Other senior Serb civilian defendants include: Biljana Plavsic (Case IT- 00-39 & 40/1), former President of the Serbian Republic of Bosnia and Herzegovina and later a member of collective and expanded Presidencies of the Republic Srpska, surrendered to the Tribunal on 10 January 2001. The amended consolidated indictment of 7 March 2002 charged her with two counts of genocide or complicity to commit genocide, five counts of crimes against humanity and one count of violations of the laws or customs of war. On 2 October 2002, she pleaded guilty to one count of persecutions on political, racial and religious grounds, a crime against humanity. In its judgment of 27 February 2003, the Trial Chamber sentenced Plavsic to 11 years’ imprisonment which she served in Sweden. She was released before completing her term on 26 October 2009 on the grounds of good behaviour. Milan Milutinovic et al. (Case IT- 05- 8723) was President of Serbia, Milosevic’s successor, and a member of the Supreme Defence Council of the FRY (Serbia and Montenegro) from 21 December 1997 until 29 December 2002. His initial indictment was issued on 24 May 1999 and amended four times. He was indicted for persecutions on political, racial or religious grounds, murder, deportation, and forcible transfer. All the charges against him and his co- defendants were in relation to the crimes committed in Kosovo. He surrendered to the Tribunal on 20 January 2003 and pleaded not guilty to all counts on 27 January. On 26 February 2009, Trial Chamber III sentenced Milutinovic’s codefendants, Former Yugoslav Deputy Prime Minister Nikola Sainovic, Yugoslav Army General Nebojsa Pavkovic and Serbian police General Sreten Lukic, to 22 years’ imprisonment for crimes against humanity and violation of the laws or customs of war. Yugoslav Army General Vladimir Lazarevic and Chief of the General Staff Dragoljub Ojdanic were found guilty of aiding and abetting the commission of charges of

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deportation and forcible transfer of the ethnic Albanian population of Kosovo, and sentenced to 15 years’ imprisonment. The Chamber found that there was a broad campaign of violence against this population during the NATO air strikes in Yugoslavia between 24 March and early June 1999, causing the departure of at least 700,000 Kosovo Albanians from their homes. The campaign was conducted by Army and Interior Ministry police forces under the control of the Federal Republic of Yugoslavia and Serbian authorities, who were responsible for mass expulsions of Albanian civilian Kosovars as well as incidents of killings, sexual assault and the intentional destruction of mosques. Milutinovic was acquitted of all charges. The Chamber found that the Prosecution had not proved that he made a significant contribution to the joint criminal enterprise, nor that he had actual control over the actions of the Yugoslav Army and of the Interior Ministry police forces. ‘In fact, it was Milosevic, sometimes termed the “Supreme Commander”, who exercised actual command authority over the Yugoslav Army during the NATO campaign.24 Some observers saw the acquittal as evidence of the independence, impartiality and fairness of the Tribunal. Some felt that the acquittal was wrong, as Milutinovic had participated in the meetings during which the criminal enterprise in Kosovo had been planned, and he had de jure if not de facto authority on the Police. Others thought it was a blow to prosecutors. Serbs contrasted the convictions with the acquittal and accused the judges of double standards adding to anti-Hague sentiments in Serbia.25 Among the senior military leaders, Bosnian Serb Major General Rasdislav Krstic (Case IT-98-33) was arrested by the multinational Stabilisation Force (SFOR) on 2 December 1998 and transferred to the Tribunal on 3 December 1998. He was first indicted on 30 October 1998 for genocide, crimes against humanity and violations of the laws or customs of war based on his alleged role in the events of Srebrenica in July to November 1995. The final indictment of 27 October 1999 contained additional charges of deportation or inhumane acts (forcible transfer), crimes against humanity. On 7 December 1998 and on 25 November 1999, he pleaded not guilty to all charges. On 2 August 2001, the Trial Chamber sentenced him to 46 years in jail, a sentence reduced to 35 years by the Appeals Chamber on 19 April 2004. He is serving his sentence in the United Kingdom It was the first sentence for genocide given by the Tribunal. The Bosnian Serb Major General Stanislas Galic was indicted on 26 March 1999 under seal,26 made public upon his arrest by the multinational Stabilisation Force (SFOR) on 20 December 1999. He was

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transferred to the Tribunal on 21 December 1999. Galic had conducted a campaign of sniping and shelling attacks on the city of Sarajevo with the primary aim of spreading terror among the city’s civilian population. He was charged with murder and inhumane acts other than murder (crimes against humanity), unlawfully inflicting terror upon civilians and attacks on civilians (violations of the laws and customs of war). The Trial Chamber sentenced him to 20 years’ imprisonment on 5 December 2003. An Appeals Chamber judgment increased the sentence to life imprisonment on 30 November 2006. Vice Admiral Miodrag Jokic (Case IT- 01- 42/1) surrendered on 12 November 2001 and was transferred to the Tribunal on the same day. He was Commander of the 9th Military Naval Sector of the Yugoslav Army, which was responsible for attacking Dubrovnik. His indictment (under seal) of 27 February 2001 was made public on 2 October 2001, and amended twice. He was charged with murder, cruel treatment, attacks on civilians, devastation not justified by military necessity, unlawful attacks on civilian objects, and destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, and historic monuments (violations of the laws or customs of war). Jokic pleaded guilty to all charges and was sentenced to seven years’ imprisonment on 18 March 2004. The sentence was reaffirmed by the Appeals Chamber on 30 August 2005. He was transferred to Denmark to serve his sentence. He was granted early release on 2 September 2008. Croatian cases Croatian General Tihomir Blaskic (Case IT-95-14), at the time the most senior military leader in the Tribunal’s custody, voluntarily surrendered to the Tribunal on 1 April 1996. He held the rank of Colonel in the Croatian Defence Council (HVO) and became commander of the HVO in the Central Bosnian Operative Zone on 27 June 1992. He was promoted to the rank of General and appointed Commander of the HVO in early August 2004. His initial indictment was issued on 10 November 1995 with five other co-accused – Dario Kordic, Mario Cerkez, Zlatko Aleksovski, Ivan Santic and Pero Skopljak. Amendments to the indictment separated his indictment from those of others who were still at large. Charges related to his activities as Colonel during the period from January to April 1993, mainly in the Lasva Valley. Blaskic pleaded not guilty to all counts on 3 April and 4 December 1996. On 3 March 2000, the Trial Chamber convicted him of wilful killing, wilfully causing great suffering or serious injury to body or health, extensive

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destruction of property, taking civilians as hostages (grave breaches of the 1949 Geneva Conventions), devastation not justified by military necessity, unlawful attacks on civilians, cruel treatment (violation of the laws or customs of war), persecutions on political, racial or religious grounds, murder and inhumane acts (crimes against humanity). He was sentenced to 45 years’imprisonment. The Appeals Chamber found fault with most of the Trial Chamber’s reasoning and findings. In part, the Appeals Chamber found that the Trial Chamber erred in failing to consider the appellant’s real and sincere remorse as a mitigating factor, and in considering his discriminatory intent as an aggravating factor in light of his conviction for persecutions at the trial. On 29 July 2004, the Appeals Chamber reduced Blaskic’s sentence to 9 years’ imprisonment, subject to credit being given for the period spent in detention since 1 April 1996. Early release came into effect on 2 August 2004. The case of Gotovina et al. (Case IT- 06-90) involved three senior military officers, two of them also having important government functions. Ante Gotovina was Commander of the Split Military District of the Croatian Army (HV) from 9 October 1992 to March 1996, and promoted to the rank of Major General in May 1994. He was overall Commander of part of ‘Operation Storm’, a military offensive launched by Croatia with the objective of retaking the Krajina region. The operation lasted a few days in August 1995 and resulted in the exodus of about 200,000 Serbs from the Krajina region. For the Croats, this was a ‘glorious’ Operation and Gotovina was and still is a hero. Ivan Cermak was Assistant Minister of Defence in the Croatian Government from 1991 to 1993, and from August 1995 Commander of the Knin Garrison. He held the rank of Colonel General. Mladen Markac was Commander of the Special Police of the Ministry of the Interior of the Republic of Croatia from 18 February 1994, Assistant Minister of the Interior. Following Operation Storm, he held the rank of Colonel General. Both Cermak and Markac surrendered to the Tribunal on 11 March 2004. After a long period of hiding, with the support of the Croatian authorities, Gotovina was arrested in Spain on 7 December 2005. The trial commenced on 11 March 2008. The amended indictment of 12 March 2008 alleged that Gotovina, Cermak, Markac and others, including President Franjo Tudman, participated in a joint criminal enterprise, the common purpose of which was the permanent removal of the Serb population from the Krajina region by force, fear or threat of force, persecution, forced displacement, transfer and deportation, appropriation and destruction of property or other means. Gotovina, Cermak and Markac were charged with crimes against humanity and

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violations of the laws or customs of war. The trial was ongoing in August 2010. Unlike Milosevic, the nationalist President of Croatia, Franjo Tudman, was not prosecuted or indicted by the Tribunal. He died in office on 11 December 1999.27 Shortly before his death (on 18 October 1999), he said that Croatia would not extradite any Croatian generals who might be indicted for war crimes to the Tribunal in The Hague.28 Bosnian Muslim cases General Rasim Delic (Case IT- 04- 83) was the most senior Bosnian Muslim officer convicted by the Tribunal since its creation. From 8 June 1993, he was Commander of the Main Staff of the Army of Bosnia- Herzegovina. Delic surrendered to the Tribunal on 28 February 2005. His indictment of 15 February 2005 was unsealed on 24 February 2005, and amended on 14 July 2006. Delic was charged with murder, cruel treatment and rape (violations of the laws or customs of war). On 3 March 2005, he pleaded not guilty to all charges. On 26 February 2008, the Trial Chamber acquitted Delic of the charge of rape as a violation of the laws or customs of war, due to the alleged failure of the accused to prevent and/or punish crimes committed by his subordinates. In its judgment of 15 September 2008, the Tribunal convicted Delic, on the basis of superior criminal responsibility with cruel treatment, in relation to the events in Livade and Kamenica Camp (cruel treatment of Bosnian Serbs and Croats) in July and August 1995 (violations of the laws or customs of war). He was acquitted of charges on all other counts, and sentenced to three years’ imprisonment. 29 Both Croats and Serbs in Bosnia denounced the verdict as an ‘example of double standards’ and a ‘shamefully mild punishment’. According to the International Herald Tribune (2008), the judges said that they had taken into account the fact that Delic helped negotiate several peace deals, including the Dayton agreement. General Sefer Halilovic (Case IT- 01- 48) was the Deputy Commander of the Supreme Command Staff of the Army of Bosnia and Herzegovina and chief of the Supreme Command Staff of the Army, head of an inspection team to command and coordinate the ‘Neretva-93’ operation. He surrendered to the Tribunal on 25 September 2001. His indictment of 12 September 2001 was made public on 25 September 2001. He was charged on the basis of superior criminal responsibility with murder (violations of the laws or customs of war). Halilovic pleaded not guilty to all charges.

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On 16 November 2005, the Trial Chamber found Halilovic not guilty, a judgment affirmed by the Appeals Chamber on 16 October 2007, confirming his acquittal. In short, the Appeals Chamber found that Halilovic did not have the required degree of ‘effective control’ over the perpetrators (who had committed murders in Grabovica and Uzdol) to establish his superior responsibility under Article 7(3) of the Statute. The joint Kosovar cases Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj (Case IT- 04- 84) were initially indicted by the Tribunal on 4 March 2005, an indictment later amended twice. The three indictees surrendered to the Tribunal on 9 March 2005. The charges against them, as alleged co-perpetrators in a joint criminal enterprise, were persecutions (harassment, torture, deportation or forcible transfer of civilians, murders, rape – crimes against humanity) and cruel treatment, murder, torture, rape (violations of the laws or customs of war). Crimes were addressed against Serb civilians, Kosovar Albanians, Roma and other civilians who were, or were perceived as, collaborators of the Serbian Forces. They all pleaded not guilty to the charges. Haradinaj was Commander of the Kosovo Liberation Army (KLA) in an operational zone, Balaj was a member of the KLA and Commander of the ‘Black Eagles’. Brahimaj, also a member of the KLA, was subordinate to, and worked closely with, Haradinaj. On 12 October 2005, Trial Chamber II ordered, by a majority, that Haradinaj ‘may appear in public and engage in public political activities to the extent which UNMIK finds would be important for a positive development of the political and security situation in Kosovo ...’. This decision, mixing political and security concerns with justice, had been denied by the Tribunal to other prominent indictees; in 1996, Radovan Karadzic had been banned from taking part in political activities. The prosecution had opposed Haradinaj’s temporary release on these terms. In its judgment of 3 April 2008, the Trial Chamber found that a large number of alleged crimes were committed by KLA soldiers or persons affiliated with the KLA. Considering both the direct and circumstantial evidence, the Chamber was not convinced beyond a reasonable doubt that the three accused participated in a joint criminal enterprise. Haradinaj and Balaj were found not guilty on all counts of the indictment and released. Brahimaj was found guilty on the basis of individual criminal responsibility for cruel treatment and torture (violations of the laws or customs of war) and sentenced to six years’ imprisonment. The Prosecutor has appealed against the acquittals of Haradinaj and Balaj.

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Haradinaj’s prosecution and trial had been the theatre of a serious struggle between the Tribunal’s Prosecutor, Carla Del Ponte, who insisted that justice be done, and UN officials of the United Nations Mission in Kosovo (UNMIK), for whom the main priority was peacekeeping and political stability. Haradinaj had been appointed Prime Minister of the UN-administered Kosovo three months before his indictment, and was considered a war hero by the Albanian Kosovars. The head of UNMIK, Soren Jessen-Petersen sided publicly with Haradinaj after the indictment, calling him ‘a close partner and friend’.30 Pressures and death threats had been exercised on witnesses who then declined to appear before the Tribunal. Serbian War Crimes Prosecutor Vladimir Vukcevic claimed that ‘nine witnesses linked to the Haradinaj case have been killed in the 2003–2007 period. One survived an assassination attempt’.31 The United States refused to cooperate with the Tribunal and withdrew any evidence which they may have had.32 A cited reason was that he was a close American ally, the ‘key US military and intelligence asset in Kosovo during the civil war and NATO bombing campaign that followed’.33 For the Serbs, Haradinaj’s acquittal was deemed a gross injustice, undermining the Hague process. In a part reversal, on 21 July 2010, the Appeals Chamber found that in the context of the serious witness intimidation that formed the context of the trial, it was clear that the Trial Chamber seriously erred in failing to take adequate measures to secure the testimony of certain witnesses; this error undermined the fairness of the proceedings and resulted in a miscarriage of justice. The Appeals Chamber quashed the Trial Chamber’s decisions to: (a) acquit Haradinaj and Balaj of participating in a joint criminal enterprise (JCE) under two counts of the Indictment; (b) acquit Brahimaj of participation in a JCE to commit crimes at the KLA headquarters and the prison in Jablanica/ Jabllanice under four counts of the Indictment; (c) acquit Haradinaj, Balaj and Brahimaj of individual criminal responsibility under two counts of the Indictment; and (d) acquit Brahimaj of individual criminal responsibility under one count of the Indictment. The Appeals Chamber ordered that Haradinaj, Balaj and Brahimaj be retried on these counts.34 Mr Haradinaj’s deputy in his political party said that this decision was ‘very bad news’ for Kosovo, while Serbia’s deputy war crimes prosecutor welcomed the decision, calling it a ‘big victory’ for prosecutors.35

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Political tensions between Kosovo and Serbia were not abated by the Advisory Opinion given by the International Court of Justice one day later, on 22 July 2010. The Court was ‘of the opinion that the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law’.36 While the Advisory Opinion gave some satisfaction to the Kosovo leaders, analysts were more cautious. James Ker-Lindsay from the London School of Economics said, in part, said that the ‘ruling steered clear of saying that the State of Kosovo was legal under international law ... It has essentially said that Kosovo’s legitimacy will be conferred by the countries that recognize it rather than by the court’.37 The Serbian government said on 23 July that it will never recognize Kosovo as a sovereign state.38 Prosecuting NATO? The Serbian and Yugoslav government offensive in Kosovo began on 20 March 1999. NATO bombing in the Federal Republic of Yugoslavia started on 24 March 1999. During this period, Yugoslav forces launched unprecedented attacks on civilians, including extra-judicial executions and sexual violence, the use of civilians as human shields, and forced the expulsion of more than 850,000 ethnic Albanians from Kosovo. Estimates of civilians killed by Yugoslav forces during the Kosovo war range from 3,368 to 10,000. Civilians killed by KLA forces are estimated at close to 1,000. The withdrawal of Serbian and Yugoslav forces from Kosovo and the cessation of the NATO bombing campaign on 12 June 1999 ended the state of armed conflict in Kosovo. Besides investigations concerning alleged crimes committed by the Yugoslav and Serbian forces and the Kosovo Liberation Army, and consistent with its mandate to investigate all sides, on 14 May 1999, the then Prosecutor, Louise Arbour, formed an internal committee to assess the allegations that senior political and military figures from NATO countries committed serious violations of international humanitarian law during the campaign, and to determine whether the Tribunal should commence investigations. In a report made public on 8 June 2000,39 the committee concluded: ... If one accepts the figures in this compilation of approximately 495 civilians killed and 820 civilians wounded in documented instances, there is simply no evidence of the necessary crime base for charges of genocide or crimes against humanity. (para. 90) ... NATO has admitted that mistakes did occur during the bombing campaign; errors of judgment may also have occurred. Selection of

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certain objectives for attack may be subject to legal debate. On the basis of the information reviewed, however, the committee is of the opinion that neither an in- depth investigation related to the bombing campaign as a whole nor investigations related to specific incidents are justified. In all cases, either the law is not sufficiently clear, or investigations are unlikely to result in the acquisition of sufficient evidence to substantiate charges against high level accused or against lower accused for particularly heinous offences. The committee then recommended that no investigation be commenced by the Office of the Prosecutor in relation to the NATO bombing campaign or incidents occurring during the campaign. In its report of 2001, Human Rights Watch disagreed ‘slightly’ with the previous committee’s findings.40 While the organization found no evidence that NATO committed war crimes, it submitted that NATO violated international humanitarian law by taking insufficient precautions to identify the presence of civilians when attacking convoys and mobile targets. NATO’s use of cluster bombs was also criticized: between 24 March and 7 May 1999, more than 1,500 cluster bombs were dropped over Kosovo and the rest of Yugoslavia. In mid-May 1999, the White House quietly ordered the Pentagon to restrict the use of cluster bombs. Amnesty International had a different position; in June 2000, it accused NATO of committing serious violations of the rules of war, unlawful killings and – in the case of the bombing of Serbia’s television headquarters in Belgrade – a war crime. In a statement of 13 May 1999,41 Louise Arbour said, in part, that she accepted the assurances given by NATO leaders that they intended to conduct their operations in the FRY in full compliance with international humanitarian law. She added that by engaging in military operations in Kosovo under the jurisdictional competence of ICTY, NATO leaders had affirmed their confidence in the Tribunal. On 17 May 1999, Jamie Shea, NATO spokesperson, set the matter straight. He said that ‘when Justice Arbour starts her investigation, she will because we will allow her to ... NATO is a friend of the Tribunal ... NATO countries are those that have provided the finances to set up the Tribunal ... I am certain that when Justice Arbour goes to Kosovo and looks at the facts she will be indicting people of Yugoslav nationality, and I don’t anticipate any others at this stage’.42 In other words, NATO controls the Tribunal, which should only prosecute Yugoslav indictees, and not NATO leaders and officials.

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Carla Del Ponte succeeded Louise Arbour in September 1999 as Chief Prosecutor and faced the same political problems and pressures. As reported by Moghalu,43 at a press conference Del Ponte asserted her duty to hold NATO accountable should evidence of crimes be confirmed: ‘If I am not willing to do that, then I am not in the right place, I must give up my mission’. Faced with opposition and strong discontent from the United States and NATO officials, Del Ponte retreated. On 30 December 1999, she issued a public statement saying that ‘NATO is not under investigation by the Office of the Prosecutor’, and that ‘There is no formal inquiry into the actions of NATO during the conflict in Kosovo’.44 In an address to the Security Council on 2 June 2000, Del Ponte announced her decision not to open a full-fledged criminal investigation into NATO’s air campaign. In her memoirs, she wrote: No one in NATO ever pressured me to refrain from investigating the bombing campaign or from investigating a prosecution based upon it. But I quickly concluded that it was impossible to investigate NATO, because NATO and its member states would not cooperate with us. They would not provide us access to the files and documents. Over and above this, however, I understood that I had collided with the edge of the political universe in which the tribunal was allowed to function.45

Completion strategy Both the ICTY and the ICTR were set up as temporary, not permanent, courts. It was therefore not unexpected that the Security Council, which had created the Tribunals, would ask them to conclude their work by a set date. The United States was particularly insistent in asking the Tribunals for an ‘end-game’, bolstering its demands with allegations of excessive costs, mismanagement and even corruption. The United Kingdom and France supported the United States The Europeans were then focusing on the newly- created International Criminal Court and seemed to lose interest in the ‘costly and ineffective’ tribunals.46 What was meant by ‘completion of the Tribunal’s work’? It was necessary for the Tribunal and members of the Security Council to agree on a workable completion strategy, and to give clear guidelines to the Tribunal as to its priorities. A statement of the President of the Security Council of 23 July 200247 endorsed the ICTY’s strategy for completing investigations by the end

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of 2004, all trial activities at first instance by the end of 2008 and all of its work in 2010,48 by concentrating on the prosecution and trial of the most senior leaders suspected of being most responsible for crimes within the ICTY’s jurisdiction, rather than on minor actors, and transferring cases involving those who may not bear this level of responsibility to competent national jurisdictions, as appropriate, as well as the strengthening of the capacity of such jurisdictions. In resolution 1503 of 28 August 2003, the Security Council reaffirmed the strategy and noted that the essential prerequisite to achieving these objectives was the expeditious establishment under the auspices of the High Representative in Bosnia and Herzegovina49 and early functioning of a special Chamber within the State Court of Bosnia and Herzegovina and the subsequent referral by the ICTY of cases of lower- or intermediaterank accused to the Chamber. Resolution 1534 of 26 March 2004 again confirmed the strategy. According to an assessment by the President of the Tribunal of 12 November 2009, all trials were set to be completed by mid-2011, appeal cases should be completed in 2013 and the Karadzic case should be disposed of in 2014, including appeals.50 The referral of cases of intermediate and lower-ranking accused to competent national jurisdictions (Rule 11 bis) This Rule, by reference to resolution 1534 of the Security Council (2004), allows the Tribunal to refer a case to the authorities of a state for referral to a court for trial within that state, under certain conditions (see Presentation 2.2). As stated in President Pocar’s report of 2007,51 the referrals of cases involving intermediate- and lower-ranking accused to competent national jurisdictions pursuant to Rule 11 bis has had a substantial impact on the overall workload of the Tribunal. By mid-August 2009, 13 accused had been transferred to national jurisdictions. Requests for referral to Bosnia and Herzegovina concerning four accused were denied by the ICTY Referral Bench or by the ICTY Appeals Chamber.52 The war crimes chamber of the court of Bosnia and Herzegovina The majority of cases concerned crimes committed in Bosnia and Herzegovina. The Section for War Crimes of the Court of Bosnia and Herzegovina, or War Crimes Chamber, was inaugurated in March 2005. Its mandate includes trying a limited number of cases of alleged mid- and lower-level perpetrators referred to it by the ICTY. It also has jurisdiction

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Presentation 2.2 Rule 11 bis, Referral of the indictment to another court (adopted 12 November 1997, revised 30 September 2002) – (extracts) (A) After an indictment has been confirmed and prior to the commencement of trial, irrespective of whether or not the accused is in the custody of the Tribunal, the president may appoint a bench of three Permanent Judges selected from the Trial Chambers (hereinafter referred to as the “Referral Bench”), which solely and exclusively shall determine whether the case should be referred to the authorities of a State: (i) in whose territory the crime was committed; or (ii) in which the accused was arrested; or (Amended 10 June 2004) (iii) having jurisdiction and being willing and adequately prepared to accept such a case (Amended 10 June 2004) so that those authorities should forthwith refer the case to the appropriate court for trial within that State. (Revised 20 Sept 2002, amended 11 Feb 2005) (B) The Referral Bench may order such referral proprio motu or at the request of the Prosecutor, after having given to the Prosecutor and, where applicable, the accused, the opportunity to be heard and after being satisfied that the accused will receive a fair trial and that the death penalty will not be imposed or carried out. (Revised 30 Sept 2002, amended 11 Feb 2005) (C) In determining whether to refer the case in accordance with paragraph (A), the Referral Bench shall, in accordance with Security Council resolution 1534 (2004), consider the gravity of the crimes charged and the level of responsibility of the accused. (Revised 30 Sept 2002, amended 28 July 2004, amended 11 Feb 2005) (D) Where an order is issued pursuant to this Rule: (i) the accused, if in the custody of the Tribunal, shall be handed over to the authorities of the State concerned; (ii) the Referral Bench may order that protective measures for certain witnesses or victims remain in force; (Amended 11 Feb 2005) (iii) the Prosecutor shall provide to the authorities of the State concerned all of the information relating to the case which the Prosecutor considers appropriate and, in particular, the material supporting the indictment; (iv) the Prosecutor may send observers to monitor the proceedings in the national courts on her behalf. Source: ICTY Rules of Procedure and Evidence, IT/32/Rev. 38, 13 June 2006.

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to try war crimes cases initiated locally. The Chamber, together with the Organized Crime and General Crime Chambers, operates within the Criminal Division of the State Court of Bosnia. It is a domestic court operating under national law, but, unlike the Serbian Court, with an international participation decreasing in stages. Its war crimes panels each consist of two international judges and one national judge. Over a five-year transition period, the composition of the panels will change to two national judges and one international judge, and they will finally be exclusively composed of national judges. Similarly, the international component will be phased out from the Special Department for War Crimes of the Office of the Prosecutor of Bosnia and Herzegovina.53 Based on a mission of Human Rights Watch conducted in Sarajevo in September and October 2006, this organization acknowledged that the War Crimes Chamber had made significant progress and was playing an important role in bringing justice for the atrocities committed during the war. However there were concerns about a lack of transparency and inadequate outreach and communications efforts.54 The next judicial level to try cases of war crimes, crimes against humanity and genocide is that of Bosnia and Herzegovina’s cantonal and district courts. Another Human Rights Watch report issued in 2008 estimated that several thousand unresolved case files involving very serious crimes committed during the 1992–1995 war remained to be tried before these local courts. HRW wrote that these courts face serious challenges in their efforts to try these cases and that a sustained commitment by local authorities, as well as substantial international support, is needed to address the large backlog of cases.55 In October 2008, the Parliamentary Assembly of the Council of Europe, in a resolution regarding the rule of law in Bosnia and Herzegovina, noted ‘progress made in the field of judicial reform’ but also some remaining problems that are ‘the poor material working conditions of the courts and the lack of consistency in judicial practice as between the [judicial] entities’.56 Croatian courts In Croatia, specially designated war crimes departments were established in the County Courts of Zagreb, Osijek, Rijeka and Split. According to a report of 4 February 2008 by four Croatian NGOs, the majority of the 28 war crimes trials that took place in Croatia in 2007 met standards of fairness (International Justice Tribune, 2008). At the end of a mission to Croatia in April 2008, Irene Khan, Secretary- General of Amnesty International, commended the recent progress achieved by

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Croatia to address impunity for war crimes. However, she pointed out that ‘major gaps remain in how the authorities are tackling war crimes, particularly those allegedly committed by the Croatian Army and police during the 1991–1995 conflict. Unevenness in how the principle that “war crimes have no nationality” is observed across the country – and ambiguities in how this message is conveyed by some of those in positions of power can make justice look partial, not impartial’.57 Serb war crimes chamber In Serbia, a War Crimes Prosecutor’s Office was created as well as a War Crimes Chamber within the Belgrade District Court. The Chamber consists of two panels of three judges each and two investigative judges. The law of 2003 also established a specialized war crimes investigation service within the Interior Ministry to act on requests of the Prosecutor for war crimes. Between 2004 and 2008, indictments were issued in six cases, and three trials were completed – not including the case of Vladimir Kovacevic (Case IT- 01- 42/2), referred by the ICTY to the Republic of Serbia in March 2007. In a Human Rights Watch briefing paper of June 2007, Sara Darehshori, senior counsel in HRW’s International Justice Programme, wrote that Serbia’s War Crimes Chamber had made significant progress in domestic prosecutions but it has a long way to go: ‘The fact that most of the Chamber’s cases involve the prosecution of Serbs for the killing of non-Serbs is an important achievement in itself’. ‘However, a series of Serbia’s Supreme Court reversals, an acquittal and a five-year sentence in the Scorpion case may undermine the willingness of victims and witnesses to come forward and testify in Serbia’. The Serbian government must improve its support for the Chamber.58 Legacy issues As the Tribunal winds down, and eventually closes, a number of difficult issues will need to be discussed and resolved by its creator, the Security Council, and particularly its permanent members, in close cooperation with the Tribunal. These also apply to the International Criminal Tribunal for Rwanda, with a few differences (see Chapter 3). Whatever solutions are proposed and agreed upon, they should take into account the rights of all parties – defendants and suspected criminals still at large, accused serving their sentences, the victims’ rights to justice, and, more generally, these solutions should not compromise the fight against impunity for serious violations of international humanitarian and human rights law, or negatively affect the development and public image of international

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criminal justice through ill-thought-out and hasty resolutions. Cost considerations should not prevail over fair justice. The following analysis and suggestions summarize some of these issues given in more detail by Oosthuizen and Schaeffer59 in their article in The Hague Justice Journal, which refers to the ICTY, the ICTR and the Special Court for Sierra Leone, courts due to close in the next few years. The authors show that a tribunal, and particularly a criminal tribunal dealing with the life of defendants and of victims, cannot close down on a set date without dealing with the continuation of its work and decisions; residual functions have to be identified and decisions taken as to which authority will deal with those. The main areas where decisions are needed follow. Supervision, pardon and commutation of prison sentences These will have to be enforced beyond 2035. Conditions of imprisonment are governed by the enforcing state’s law. If a convicted person becomes eligible for pardon or commutation under the state’s law, the case is now referred to the ICTY President for a decision in consultation with other judges, the registrar and the Prosecutor. Which authority will deal with these issues when the Tribunal closes? Review of earlier convictions Evidence of the innocence of convicted persons may be discovered at any time. The right to have a conviction reviewed is a fundamental human right. Again, what authority will exercise this review? Protection and support of victims and witnesses The authority and capacity to provide both pre- closure and post- closure protection and support to victims and witnesses will be needed for decades. Referral of cases to national jurisdictions, revocation of referrals and deferrals of national proceedings under Rule 11 bis To this author, residual functions of referrals under Rule 11 bis would not be needed in these cases, as the closing of the ICTY means that any new cases would be tried by competent national jurisdictions, without intervention by an international court. Residual trials Residual mechanisms must be able to press national and international authorities to apprehend at-large accused, detain, prosecute and try

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them fairly and expeditiously and supervise the enforcement of any sentence. Management, preservation and use of records and materials The ICTY and other temporary international courts have vast amounts of public and confidential records, evidence, data and other materials. Arrangements will have to be made for access to these materials under set conditions in a safe location. Oosthuizen and Schaeffer suggest that the residual mechanisms should be practical, effective and vested with the necessary legal authority. The authority of the ICTY (and of the ICTR) based on Chapter VII Security Council resolutions should be retained in these mechanisms. The same authority (power) should be given to any external entity to which residual functions may be delegated or transferred, such as the authority to issue binding residual orders to states, organizations or individuals. The mechanisms should have sufficient sources of funding and be cost- efficient.

Conclusion The tribunal’s achievements The International Criminal Tribunal for the Former Yugoslavia is a real international court, and not a victor’s tribunal as were the Nuremberg and Tokyo Tribunals. On 7 May 1997, Trial Chamber II, in rendering its ‘Opinion and Judgment’ on the Tadic case, pointed out that this judgment is ‘the first determination of individual guilt or innocence in connection with serious violations of international humanitarian law by an international tribunal (...). The international military tribunals at Nuremberg and Tokyo, ... , were multinational in nature, representing only part of the world community’.60 In its decision of 2 October 1995, the Appeals Chamber concluded that the Tribunal was properly established by the Security Council and dismissed Tadic’s challenge to the Tribunal’s assertion of primacy over national courts. State sovereignty must give way in the face of offences that ‘do not affect the interests of one State alone but shock the conscience of mankind’.61 Its ‘production’ is impressive, in terms of the number of indictments, trials, appeals and judgments. Through pressures by its Prosecutors on governments, calls to public opinion, and pressures by the European Union making adhesion to the Union conditional on candidate countries’ cooperation with the Tribunal, and with the help of human rights NGOs, the Tribunal has obtained the arrest and custody of major civilian

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and military leaders – including former President Slobovan Milosevic and Bosnian Serb leader Radovan Karadzic, a number of generals, with the glaring exception of Ratko Mladic, the Bosnian Serb Commander mainly responsible for the Srebrenica massacre. The number of voluntary surrenders and the number of accused pleading guilty have reinforced the credibility of the Tribunal. The Tribunal has filled a critical void that no national courts were prepared, qualified or willing to fill during and in the aftermath of the conflict. On 31 March 2010, the Serbian Parliament ‘strongly condemned the crime committed against the Bosnian Muslim population of Srebrenica in July 1995, as determined by the International Court of Justice (ICJ) ruling’. The resolution, however, avoided the term ‘genocide’ although the massacre had been defined as genocide by the Tribunal and the ICJ.62 The Tribunal has pioneered the creation of procedural rules for an international court composed of judges who speak different languages and come from different legal cultures; the ICTY Rules of Procedure and Evidence reflect a mix of the common law adversarial mode of trial and the civil law inquisitorial mode practised on the European continent. The Tribunal has also produced a protocol for the protection of witnesses. The ICTY itself lists a number of ‘core achievements’ due to its creation and work:63 ‘Spreading the shift from impunity of leaders to accountability’, confirming the historical precedent of the Nuremberg Tribunal, – ‘establishing the facts’, in part through admissions of guilt from a number of accused – ‘bringing justice to thousands of victims and giving them a voice’ and ‘strengthening the rule of law’ by giving support and offering training to judiciaries in the Former Yugoslavia and promoting the creation of specialized war crimes courts monitoring their work to prevent arbitrary arrest of individuals for war crimes. From the Nuremberg precedent, the Tribunal has developed a substantial corpus of coherent international law on war crimes, crimes against humanity and genocide, which national courts could not do. This includes the innovative decisions regarding the status and definition of rape, sexual violence and sexual enslavement as crimes of war and crimes against humanity when committed in the context of a widespread campaign against civilians. The Tribunal has expanded upon the legal elements of the crime of grave breaches of the Geneva Conventions of 1949 by further defining the test of overall control; – it has identified a general prohibition of torture in international law. The Furundzija judgment (IT-95-17/1) provides a definition of torture under international humanitarian law. In this regard, the Trial Chamber found that the prohibition of torture has

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attained the status of jus cogens, a peremptory norm of international law from which no derogation is permitted. In consequence, torture may not be be covered by a statute of limitations, and must not be excluded from extradition under any political offence exemption.64 For Pejic,65 ‘the ICTY has clarified and developed key concepts of international humanitarian law and made an invaluable contribution to softening the distinction between the legal regimes applicable to international and non-international armed conflict’. The Tadic Jurisdiction Decision66 was ‘the first judgment rendered by an international tribunal confirming, in unequivocal terms, the criminal character of war crimes committed in [internal armed conflicts]’. Alleged failings of the tribunal A fierce critic of ad hoc International Tribunals, including the ICTY, is none other than Ralph Zacklin, then Assistant Secretary- General for Legal Affairs in the UN secretariat, writing in his own capacity in 2004 and exposing the failings of the UN’s own ‘creatures’.67 For Zacklin, these tribunals are ‘unwieldy instruments, with a cumbersome bureaucratic structure’. Their structural deficiency (notwithstanding that their Statutes were drafted with the assistance of the UN Legal Affairs Department) ‘has caused insuperable administrative and managerial difficulties for both the General Assembly and the Security Council. Victims have the perception that the ICTY is too remote and is unable to promote reconciliation. The ad hoc tribunals, including the ICTY, have been ‘too costly, too inefficient and too ineffective. As mechanisms for dealing with justice in post-conflict societies, they exemplify an approach that is no longer politically or financially viable’. The ICTY has indeed been criticized for being too slow, for its lengthy trials and for being too costly. A slow beginning and lengthy trials Gabrielle Kirk McDonald,68 a former judge, then President of the ICTY (1993–2001) recalls that during the first several years, the Tribunal operated in ‘survival mode’: I often heard it said that the Tribunal was a ‘fig leaf’ – an expression of the inability or unwillingness of the international community to end the horrific violence. Some doubted the UN had sufficient will for the Tribunal to succeed. Some even suggested that failure was the preferred outcome. Certainly the way that the budgetary requests were treated reasonably allowed one to conclude that there was not an abundance of enthusiasm in New York about the Tribunal.

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Besides the initial lack of political and financial support from the UN and from some of the Security Council permanent members, building a new tribunal ‘from scratch’, with only the Nuremberg Military Tribunal as a precedent, was no easy task. The Tribunal, set in The Hague, had no premises, no means of investigating the crimes, no rules to guide the proceedings, no way to reach and protect witnesses and no place to detain persons charged with these crimes. The Tribunal had no police, and only a few staff members. The conflict was still ongoing. Even after the Dayton Peace Agreements ended the war in 1995, NATO delayed and resisted arresting alleged war criminals (Patrick, 2008). The trial of Milosevic lasted for more than four years and ended inconclusively with his death. The length of some of the trials may be explained by the requirements of fair justice and due process, the need for the Prosecutor to amend indictments and the complex procedures fully used by defence lawyers. The prosecutors need to obtain and present reliable evidence and to call often reluctant or fearful witnesses, to demonstrate that atrocities were committed, that they are shown to be within the definition of the Statute and to link these with an individual accused. The defence presents its own evidence and arguments to rebut the charges. Appeals, initiated by either or both the defence and the prosecution, extend the duration of trials. Trials could be shortened by reducing the number of charges. However, the calls for shorter trials need to be balanced with the right of the victims to see that justice is being done for all crimes in which an accused allegedly participated. Claude Jorda, former President of the ICTY and former Chair of the Pre-Trial Division of the ICC,69 felt that the issue of trial duration is essential for the credibility of international criminal justice:70 ‘In the end, time is on the accused’s side’. For him, a trial should never last more than 18 months, including the preliminary phase, the trial and the appeal. This would seem to be a reasonable and desirable target, but it should remain flexible. High costs In his 2004 Report to the Security Council,71 the UN Secretary- General admitted that the two International Criminal Tribunals for the Former Yugoslavia and for Rwanda had grown into large institutions, with more than 2,000 posts between them and a combined annual budget exceeding a quarter of a billion dollars, equivalent to more than 15 per cent of the organization’s regular budget. Why the high costs? The cases dealt with by the tribunals involve multiple defendants, hundreds of witnesses and wide-ranging investigations.

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The costs of translating documents and simultaneous interpretation into several languages at hearings represent half of the budgets. The tribunals must manage and finance their own detention centers and pay for defence fees, if justified. They must ensure the security of the trials, call for witnesses and pay for their travel and other expenses. Staffing costs of international judges, prosecutors and other personnel are also high. Supporters of international justice say that ‘justice is not cheap’, in the words of Carla Del Ponte, the former Chief Prosecutor of the Tribunals. Paul van Zyl, Director of Country Programmes at the International Center for Transitional Justice told IRIN, the humanitarian news and analysis reports produced by the UN Office for the Coordination of Humanitarian Affairs (OCHA): If you compare dollar for dollar the amount that it costs to convict the most senior people before the ICTY, with what it costs to convict for example a Mafia boss in the United States or the prosecution of Timothy McVeigh, the Oklahoma City bomber, the amounts are comparable’.72 The costs of war, in comparison with judicial costs, are at a level higher by multiples. For instance, the war in Iraq has been estimated at costing the United States up to $230 million per day, that is, almost the annual budget of the ICTY. Not included are the costs of the killings and wounding of military personnel and civilians, physical destruction of cities, industrial and commercial enterprises, human suffering and long legacies of hatred and desire for revenge. Crimes being prosecuted at international criminal tribunals include charges of genocide, crimes against humanity, torture and rape applied to thousands or hundreds of thousands of victims. Should a different, and cheaper, level of justice be applied to those in comparison with ‘home’ criminals? An argument often heard against the high costs of international justice is that money would be better spent on development of poor countries. The counterargument is that money invested in global justice would not necessarily be made available for this purpose, or for states’ infrastructure, health, policing or even compensation for victims. Less expensive alternatives have been applied through voluntary contributions by governments or other entities for other tribunals, such as the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia, with their own financing problems and limitations (see Chapter 5 and 6).

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A political mandate? Moghalu73 affirms that the real mandate of the ICTY is political, ‘not just an abstract legal one’, which explains why charges of war crimes leveled at the NATO bombing campaign in Kosovo were ultimately dismissed by Del Ponte. In fact, the Tribunal is a genuine judiciary body, created by a political organ, the Security Council. Its creation was a political decision, not a conscious gesture to revive the concept of international criminal justice pioneered by the Nuremberg Tribunal. It was motivated by the disarray of the Council’s members faced with continuous killings, detention and torture, rape and ethnic cleansing, who were unwilling to intervene militarily in the conflict. It was originally an alibi, a visible gesture to counteract widespread criticisms aroused by the mediatized atrocities. At the same time, the Tribunal’s creators did not expect or hope that their ‘creature’ would survive and become effective, in terms of judging, through fair procedures, and sentencing a number of high-level political and military leaders. The reality is that the Tribunal was mainly created by Western democratic countries, on which it is largely dependent for its financing, for legal support and for obtaining custody of indictees. Their power was shown in the case of the NATO bombing campaign. It is clear that the decision of the Prosecutor to reject an investigation has been caused by the political pressures of NATO countries. It is unfortunate that ICTY judges have not been called upon to decide whether allegations of war crimes committed by NATO forces should be prosecuted, following a fair and open investigation of all relevant facts. International criminal tribunals are living organisms, and prosecutors and judges are, like national prosecutors and judges, subject to internal and external pressures. Their competence is not in question, but their independence depends in part on their own integrity, on their moral courage, their concern for victims and their devotion to the ideal of international law, and in part on a balance between the ideals of justice and the necessity to make compromises in the interest of ensuring the survival of these new bodies. In times of high intensity political pressures, their best allies are a few, small, democratic, independent-minded countries and the human rights and humanitarian non-governmental organizations.

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3 The International Criminal Tribunal for Rwanda

Following the establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in May 1993, the Security Council created a second international criminal court in November 1994, the International Criminal Tribunal for Rwanda (ICTR). The new Tribunal was also brought about by a major humanitarian crisis which, as with the Yugoslav wars, the ‘international community’ (essentially the permanent members of the Security Council) was unwilling to prevent or stop before large casualties and immense suffering had occurred. As for the ICTY, by its resolution (Preamble of resolution 955), the Security Council had determined that the situation in Rwanda – the commission of genocide and other serious violations of international humanitarian law – constituted a threat to international peace and security, justifying the creation of the Tribunal by reference to Chapter VII of the United Nations Charter. Both Tribunals are ad hoc and temporary institutions, due to be closed when their programmes are completed. In spite of their considerable achievements, both Tribunals were attacked for applying one-sided, victors’ justice: for the ICTY, the ‘victors’ were the influential Western countries and NATO; for the Rwanda Tribunal, the ‘victor’ was the new Government of Rwanda headed by Paul Kagame, which prevented the Tribunal from investigating crimes committed by the Rwandan Patriotic Army. Both Tribunals were also criticized for being slow and costly, and, as for the Rwanda Tribunal, for being inefficient and corrupt.

The origin: the genocide in Rwanda The genocide, the mass elimination of the Tutsi minority in Rwanda together with the killing of moderate Hutu, started on 12 April 1994. It 85

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had been triggered on 6 April by the crash of the jet plane carrying the President of Rwanda, Juvénal Habyarimana, and his colleague, President Cyprien Ntariyamira, of Burundi. All aboard were killed, including several senior members of Habyarimana’s staff and the French air crew. The genocide ended on 18 July with the victory of the Rwandan Patriotic Front (RPF), originally based in Uganda and grouping together exiled Tutsi and dissident Hutu, and the formation of a new government, replacing the interim Hutu government.1 In a population of seven million before the genocide, the mass killings have caused the violent death of approximately 800,000 Rwandans – women, children and men – mostly Tutsi but also including ‘moderate’ Hutus; over three- quarters of the population registered as Tutsi were killed. Victims were treated with sadistic cruelty and suffered long unbearable agony. Thousands more were raped, tortured and maimed for life. About two million, mostly Hutu, were then displaced internally and another two million fled as refugees to neighbouring countries. Following the plane crash of 6 April 1994, ‘Hutu Power’ took control in Rwanda through the Hutu-led interim government of Rwanda. Colonel Theoneste Bagosora, former Director of Cabinet in the Ministry of Defence, is deemed to have been the leader of the genocide; he has been detained by the Tribunal since January 1997. Jean Kambanda, the Prime Minister during the genocide, accepted his responsibility at his trial four years later when he pleaded guilty to genocide. Not only had the genocide been planned in advance, but he admitted that ‘there was in Rwanda in 1994 a widespread and systematic attack against the civilian population of Tutsi, the purpose of which was to exterminate them’. Mass killings of hundreds of thousands occurred in Rwanda, including women and children, old and young, who were pursued and killed at places where they sought refuge: prefectures, commune offices, schools, churches and stadiums.2 All Hutu authorities were involved in the genocide. The elaborate governing structure in Rwanda implemented the genocide with remarkable efficiency, assisted by the Rwandan tradition of passive acceptance of authority. At the United Nations, neither the Secretariat, from the Secretary- General down, nor the Security Council took any effective action to prevent or stop the genocide. The Security Council’s incredible and irresponsible decision, during the genocide, was to reduce the size of the UN Mission from 2500 soldiers to 270.3 The UN Secretariat’s insistence on being ‘neutral’ between the killers and their victims amounted to appeasement, as in Bosnia.

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On 14 April 2000, members of the Security Council acknowledged the responsibility of the UN in its inability to stop the genocide. They agreed with a finding of the Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda (or Carlsson Report) issued on 15 December 1999 which stated that:4 The failure of the United Nations to prevent, and subsequently, to stop the genocide in Rwanda was a failure by the United Nations system as a whole. The fundamental failure was the lack of resources and political commitment devoted to developments in Rwanda and to the United Nations presence there. There was a persistent lack of political will by Member States to act, or to act with enough assertiveness. This lack of political will by Member States affected the response by the Secretariat and decision-making by the Security Council, but was also evident in the recurrent difficulties to get the necessary troops for the United Nations Assistance Mission for Rwanda (UNAMIR). Finally, although UNAMIR suffered from a chronic lack of resources and political priority, it must also be said that serious mistakes were made with those resources which were at the disposal of the United Nations. The OAU Report of May 2000 found that the silence of the organization and of a large majority of African heads of state constituted a shocking moral failure.5

The creation of the tribunal On 7 April 1994, the day after the plane crash, the President of the Security Council wrote that the Council was deeply disturbed by this ‘tragic incident’ and ‘the ensuing violence’ which it condemned, in particular the attacks against UN personnel. It appealed to all Rwandans and to all parties to desist from any further acts or threats of violence.6 On 13 April, the representative of the Rwandan Patriotic Front (RPF), led by Paul Kagame, wrote to the President of the Council stating that a ‘crime of genocide’ had been committed against Rwandans in the presence of a UN peacekeeping force. He called on the Council to establish a UN war crimes tribunal and apprehend persons responsible for the atrocities. Continued massacres were again condemned by the Security Council in resolution 912 of 21 April, and in the statement of the President of the Council of 30 April. The original draft of the latter statement specified ‘genocide’, a word which was proscribed by

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the U.S. administration with support from the United Kingdom and China.7 Mentioning ‘genocide’ might have shown publicly that Security Council members were in breach of the Genocide Convention, whose article I prescribes that Contracting Parties should ‘undertake to prevent and punish’. The United States had ratified the Convention on 25 November 1988.8 As with the Yugoslavia Tribunal, the establishment of the Rwanda Tribunal was preceded by a Commission of Experts. The Commission, created in July 1994, reported on 4 October that individuals on both sides of the armed conflict in Rwanda during the period 6 April to 15 July 1994 had perpetrated serious breaches of international humanitarian law and crimes against humanity, and that mass exterminations perpetrated by Hutu elements in a concerted, planned, systematic and methodical way constituted genocide within the meaning of Article II of the Genocide Convention.9 The Commission recommended that the Security Council amend the Statute of the Yugoslav Tribunal to ensure that its jurisdiction covered crimes committed in Rwanda during the conflict which began on 6 April 1994.10 While Yugoslavia had opposed the creation of the ICTY, the Tutsidominated Rwandan government proposed, again, the creation of an international tribunal by letter to the President of the Security Council dated 24 September 1994. On 6 October, the President of Rwanda, Pasteur Bizimungu, urged the UN to establish an international tribunal in his country quickly to bring those responsible for genocide to justice. An international presence would ensure an exemplary justice which would be seen to be completely impartial and fair. The government believed that it was impossible to build a state of law and arrive at true national reconciliation without eradicating the culture of impunity which had characterized Rwandan society.11 However, in the end, Rwanda voted against resolution 955 of 8 November 1994, drafted under the lead of the United States, by which the Security Council established the Tribunal.12 Rwanda’s main objection was that the Tribunal’s Statute ruled out capital punishment, which was provided for in the Rwandan penal code. As a consequence, leaders who designed, planned and implemented the genocide could escape the death penalty, while lowerrank perpetrators ‘would be subjected to the harshness of [the death] sentence’. Other objections related to the temporal jurisdiction of the Tribunal, considered too restrictive, and to its composition and structure: the Tribunal should have its own Appeals Chamber and Prosecutor and its seat should be in Rwanda. These objections and proposals were dismissed by the Security Council.

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The statute of the tribunal Resolution 955 defines as the sole purpose of the establishment of the Tribunal the prosecution of ‘persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994’. The Security Council expected that its establishment, as for the Yugoslav Tribunal, would contribute to the restoration and maintenance of peace. For the Rwanda Tribunal only, an additional expectation was to contribute to the process of national reconciliation. The jurisdiction of the Tribunal extends to genocide, crimes against humanity and violations of Article 3 common to the Geneva Conventions and of Additional Protocol II. Like the ICTY, it has jurisdiction over ‘natural persons’ and has primacy over the national courts of all States. The Tribunal’s geographical site is in neighbouring Arusha, Tanzania. Structure As for the ICTY, the organs of the ICTR are the Chambers, the Prosecutor and the Registry. The original Statute established two Trial Chambers and an Appeals Chamber, composed of 11 judges: three serve in each of the Trial Chambers, and five serve in the Appeals Chamber, which is shared with the ICTY. On 30 April 1998, a Third Trial Chamber was created by resolution 1165 of the Security Council. As a result, the number of judges was increased from 11 to 14. Three judges sit in each of the Trial Chambers and five judges sit in the Appeals Chamber. On 30 November 2000, by resolution 1329, the Security Council decided unanimously to increase the number of permanent judges to sixteen by the election of two additional judges to the ICTR. Seven of the permanent judges are members of the Appeals Chamber: for each appeal, the Appeals Chamber is composed of five of its members. This decision should enable the two Tribunals to expedite the conclusion of their work by 2010, as decided by the Security Council. It was also intended to redress the absence of representation by ICTR judges in the Appeals Chamber. The ICTR judges did not, then, request the provision of ad litem judges for their Tribunal, as they were confident that they could complete a substantial number of the 36 outstanding cases by 2003. This optimistic forecast did not come true. Following a request by the Tribunal on 9 July 2001, the

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Security Council authorized, on 14 August 2002, by resolution 1431, the creation of a pool of 18 ad litem judges for the ICTR, in order to increase the Tribunal’s judicial capacity. The current President of the Tribunal is Judge C. M. D. Byron (Saint Kitts and Nevis), appointed to that post on 21 May 2007. The Statute of the Tribunal prescribed that the Prosecutor of the ICTY also serve as the Prosecutor of the ICTR (Article 15.3). Resolution 1503 of 20 August 2003 amended this article by creating a separate position of Prosecutor for the ICTR. The status and functions of the ICTR Prosecutor are similar to those of the ICTY Prosecutor, mutatis mutandis. Hassan Bubacar Jallow (Gambia) was appointed to that position on 15 September 2003 (Security Council resolution 1505). The current Registrar is A. Dieng (Senegal), appointed on 1 March 2001. The status and functions of the ICTR Registry are similar to those of the ICTY Registry, mutatis mutandis. Budget and staffing As for the ICTY Tribunal, the expenses of the ICTR are borne by the regular budget of the United Nations, thus providing the Tribunal with an assured income, subject to the approval of the General Assembly. The Tribunal’s budget has increased from year to year, as shown below, until the biennium for 2008–2009 (net in U.S. dollars): Table 3.1 International criminal tribunal for Rwanda: budgets 1996 1997 1998 1999 2000–2001 2002–2003 2004–2005 2006–2007 2008–2009 2010–2011

2,4 million 43,2 million 59 million 75 million 182,7 million 177,739,400 231,506,500 269,758,400 247,466,600 227,246,500

Source: ICTR, ‘General Information, Budget and Staf f ’, ht t p://69.94.11.53/E NGLISH/geninfo/index. htm, retrieved 2 September 2010, and prior ‘General Information’ for previous years.

The General Assembly authorized 693 staff posts for 2010, and 628 for 2011, with 80 nationalities represented.13

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Allegations of mismanagement and corruption Mismanagement was initially a serious problem for the ICTR, not shared by the ICTY. A report by the UN Office of Internal Oversight Services (OIOS), issued on 6 February 1997, found that the Tribunal was suffering from serious operational deficiencies which existed from its inception. In the Registry, not a single administrative service functioned effectively.14 The Office of the Prosecutor had administrative, leadership and operational problems. Relations between the Registry and the Office of the Prosecutor were tense. These difficulties were caused or exacerbated by the recruitment of unqualified or inexperienced staff. Senior officials in the UN headquarters’ Department of Administration and Management and in the Office of Legal Affairs had failed to bear responsibility for the effectiveness of the Tribunal on the misperception of respect for the independence of the Tribunal. In fact, it appeared that the ICTY in The Hague had been more “nurtured” by the UN Office of Legal Affairs in New York than the ICTR in Arusha. Rumours of chronic corruption, nepotism and systematic discrimination against non-Africans by the Tribunal’s Deputy Prosecutor, Honoré Rakotomanana, of Madagascar, and its Registrar, Andronico Adede, of Kenya, were not confirmed in the report. However, on 26 February 1997, the UN Secretary- General accepted the resignation of both officials. Bernard Muna (Cameroon) was appointed as Deputy Prosecutor and Agwu Okali (Nigeria) as the new Registrar. The chiefs of personnel, finance and administration were also replaced. A Deputy Registrar was appointed.15 Another OIOS report issued on 23 September 1999 showed that the Tribunal had satisfactorily implemented a number of previous recommendations and made improvements in financial management and in filling vacant positions. However, improvements were still needed in various administrative areas. OIOS recommended that the legal adviser to the Registrar should be reassigned because of his involvement in the exchange of private funds with defence counsels. The Chief Finance Officer had violated rules and personally interfered in the procurement process, with no evidence of personal benefit, in obtaining goods and services for the Tribunal.16 A UN report of 1 February 2001 reviewed allegations of fee-splitting between some defence counsels and their clients. The Tribunal was requested to institute a more rigorous screening process to ensure that legal aid given to the accused is not abused.17 On 14 May 2002, the President of the Tribunal confirmed the Registrar’s decision to dismiss defence lawyer Andrew McCartan (Scotland) over financial dishonesty.18

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Another counsel, Jean Yaovi Degli (Togo), was dismissed on 26 October 2004 for having committed fraud in the amount of $300,000, and having employed as co- counsel an unqualified person, Sylvia Olympia (France).19 In a letter of 12 September 2005, ICTR detainees accused Pierre Duclos (Canada), an investigator of the Tribunal of collecting false testimonies, and Melinda Pollard (USA) and Bongani Dyani (South Africa), employed by the Office of the Prosecutor in spite of challengeable backgrounds.20

Achievements The Tribunal was established in November 1994. Its first trial started in January 1997, following the arrival of the first accused in Arusha in May 1996. From 1995 to 1999, only six judgments, involving seven accused persons, were rendered. The pace accelerated in 2003, when five judgments were rendered, involving eight cases. The status of cases, as of April 2010 was as follows: ● ● ●

● ● ●

Awaiting trial: 2 Cases in progress: 24 Completed cases: 34, including 8 acquitted, and 7 released after completing sentence Pending appeals: 8 Accused at large: 11 Cases transferred to national jurisdiction: 221

Selected cases22 The ICTR rendered its first judgment on 2 September 1998 in the case of Jean-Paul Akayesu, former bourgmestre (mayor) of Taba, (Case ICTR-96A-T). He was found guilty of genocide, direct and public incitement to commit genocide and crimes against humanity (extermination, murder, torture, rape and other inhumane acts). For the first time, the Genocide Convention of 1948 was interpreted by an international tribunal, which formally confirmed that the 1994 massacres were a genocide. The Chamber defined the crime of rape [a]s a physical invasion of sexual nature, committed on a person under circumstances which are coercive. Sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact ... Threats,

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intimidation, extortion and other forms of duress which prey on fear or desperation could be coercion. The Court held that sexual violence was an ‘integral’ part of the process of destruction of the Tutsi ethnic group. On 2 October 1998, the accused was given three life terms for genocide, incitement to commit genocide and crimes against humanity relating to extermination. He was also sentenced to 15 years each on four separate counts of crimes against humanity related to murder and rape and ten years for separate counts of crimes against humanity related to torture and other inhumane acts. On 1 June 2001, the Appeals Chamber dismissed appeals by the defence and affirmed decisions of the Trial Chamber.23 The Tribunal judged and sentenced Jean Kambanda, Rwanda’s Prime Minister and Head of the interim government during the genocide (Case ICTR-97-23-A). He pleaded guilty to charges of genocide and crimes against humanity and was sentenced to life imprisonment on 4 September 1998. His appeal was dismissed on 19 October 2000. It was the first time that an accused person acknowledged his guilt for the crime of genocide before an international criminal tribunal. It was the first time that a head of government was convicted for this crime. A number of ministers of the interim Hutu government, two prefects (senior regional administrators), military personnel, bourgmestres (mayors), businessmen, journalists, a doctor, a pastor, two priests and a musician have also been tried.

Rwanda’s relations with the tribunal These relations have ranged from open hostility on the part of the Rwandan government, to an uneasy rapport. The new Rwandan government headed by Paul Kagame took power from the genocidal interim Hutu government in July 1994. The creation of the Tribunal by the Security Council outside of Rwanda, in Arusha, without the death penalty, upset the government, which had different views. The Tribunal started in a climate of general hostility towards the UN, because of its inaction during the genocide, with periodic criticism of the Tribunal actions and judgments. In 1997, the Rwandan government firmly criticized the Tribunal, and particularly its Prosecutor, Louise Arbour (whose judiciary experience in Canada was labelled as ‘leaving much to be desired’), and requested the designation of a Prosecutor exclusively in charge of Rwanda; in its Statute, the ICTY Prosecutor served as Prosecutor for the ICTR until a

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separate position for the ICTR Prosecutor was created in 2003. A 1997 report by the UN Office of Internal Oversight Services (OIOS) had already identified a number of serious operational deficiencies.24 The Rwandan government criticized the ineffectiveness of the Prosecutor’s office, the lack of qualifications or experience of members of the staff, the very disastrous performance of the investigations department, serious internal divisions and tensions within the Tribunal, ad hoc investigations and indictments and the fact that after two years of work, only one trial had started and that the majority of indicted suspects had been low level functionaries and small-time businessmen. Too much time and too many resources were wasted to carry out investigations abroad and not in Rwanda. The government concluded that the Tribunal should cease its policy of hostility towards the government of Rwanda.25 A core problem for Rwanda is the independent nature of the international Tribunal. The ICTR was established by the Security Council and given prosecution powers under Chapter VII of the UN Charter. It is composed of independent judges, an independent Prosecutor who ‘shall not seek or receive instructions from any Government or from any other source (Art. 15 of Statute). Acting under Chapter VII of the UN Charter, the Security Council decided that all States ‘shall cooperate fully with the International Tribunal’ (resolution 955). The Tribunal has ‘primacy over the national courts of all States’ (Art. 8.2 of Statute). For its part, the Rwandan government has sovereignty over its territory and its population, and has a direct interest in prosecutions and judgments concerning its nationals tried by the Tribunal. The government considers that the only mandate of the Tribunal is to identify, investigate, prosecute and try those responsible for the genocide, and that it should not involve any individuals alleged to be responsible for massacres allegedly committed by the Rwanda Patriotic Army (Tutsi) against the defeated Hutus. The Tribunal, in turn, needs the cooperation of the Rwandan government in the arrest of indictees on its territory, free and full access to Rwandan documentation relevant to cases and the availability of witnesses in Rwanda to testify in Arusha. The potential and real conflict lies between the formal independent status of the Tribunal and its dependence on the necessary cooperation of the Rwandan government to enable the Tribunal to carry out its work. As will be seen, the Rwandan government has played on this dependence by exerting political influence on the Tribunal judges and on its Prosecutor.

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The Tribunal decision in the case of Barayagwiza caused great tensions between the government and the Tribunal, and between the Tribunal’s Prosecutor and judges, and raised fundamental questions about the Tribunal’s independence. The Tribunal faced a choice: either prosecute and condemn an accused indicted for genocide, to fulfil its mandate and to satisfy the Rwandan government and the victims, as well as international public opinion, or apply a strictly legalistic approach in which procedural rules prevail over substantive charges. The case of Jean-Bosco Barayagwiza Three of the accused, Ferdinand Nahimana, Hassan Ngeze and Jean-Bosco Barayagwiza, were tried jointly. Barayagwiza held the post of Director of Political Affairs in the Ministry of Foreign Affairs of the interim government. He was a founder of Radio-Télévision libre des Mille Collines (RTLM), created in 1993, the ‘hate radio’ which propagated hatred against the Tutsi and promoted their extermination, and a founder of the Coalition pour la défence de la République, a group of Hutu extremists also promoting the killing of Tutsi civilians. Barayagwiza was arrested and placed in detention in Cameroon in April 1996, in response to separate international arrest and extradition requests by the Rwandan and Belgian governments in 1994.26 He was charged on counts of genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, complicity in genocide and crimes against humanity (murder and persecution). He was additionally charged with superior responsibility in respect to all counts except conspiracy to commit genocide, and serious violations of Article 3 common to the Geneva Conventions of 1949 and of Additional Protocol II of 1977. On 23 October 1997, a judge of the ICTR confirmed the indictment against Barayagwiza and directed the Registrar to serve the Tribunal’s warrant of arrest and order for surrender of the accused on the Cameroon government (Case ICTR-97-19-I). The accused was transferred to Arusha on 19 November 1997. On 24 February 1998, he filed a motion for the nullification of his arrest and detention. On 17 November 1998, Trial Chamber II upheld the Prosecutor’s arguments and ruled that the accused’s provisional detention was justified. The Appeals Chamber’s subsequent decision of 3 November 1999 caused fury in Rwanda and serious problems for the Tribunal.27 The Chamber found that the period of provisional detention was ‘impermissibly lengthy’. The Appellant’s right to be promptly charged was

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violated as well as his right to an initial appearance. The Prosecutor failed in her duty to diligently prosecute this case (paras. 100, 101 of Decision). While recognizing that the crimes for which the Appellant was charged were very serious, his fundamental rights were repeatedly violated: To allow the Appellant to be tried on the charges for which he was belatedly indicted would be a travesty of justice. Nothing less than the integrity of the Tribunal is at stake in this case. Loss of confidence in the Tribunal, as a court valuing human rights of all individuals – including those charged with unthinkable crimes – would be among the most serious consequences of allowing the Appellant to stand trial in the face of such violations of his rights. As difficult as this conclusion may be for some to accept, it is the proper role of an independent judiciary to halt this prosecution, so that no further injustice results. (para. 112) The Appeals Chamber unanimously dismissed the indictment with prejudice to the Prosecutor and directed the immediate release of the Appellant. By a vote of four to one, it directed the Registrar to make the necessary arrangements for the delivery of the Appellant to the authorities of Cameroon. The Rwandan authorities did not accept this decision and retaliated against the Tribunal. They suspended their cooperation with the Tribunal, and refused a visa for the Tribunal’s Prosecutor, Carla Del Ponte, to enter Rwanda. She then emphasized that the Tribunal was dependent on Rwanda’s help to prosecute nearly 40 suspects in detention: ‘Without Rwanda I can do nothing at all’. As a condition for cooperation, Rwanda demanded a reversal of the Appeals Chamber’s decision.28 On 25 November 1999, the Appeals Chamber issued an Order staying execution of the dismissal Decision of 3 November, following requests for review from the Appellant and from the Prosecutor. In a hearing on 22 February 2000, Del Ponte told the appellate judges, in an appeal to face the political facts of life, that ‘whether we like it or not, we must come to terms with the reality that our ability to continue our investigations depends on Rwanda’. Without Rwanda’s help, ‘we might as well open the doors to the prison. It is my hope that Barayagwiza will not be the one to decide the fate of this Tribunal’.29 The new Decision of the Appeals Chamber was rendered on 31 March 2000 (ICTR-97-19-AR72). The Prosecutor pleaded, in part, that

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‘the extreme measure of dismissal of the indictment with prejudice to the Prosecutor is not proportionate to the alleged violations of the Appellant’s rights and is contrary to the mandate of the Tribunal to promote national reconciliation in Rwanda by conducting public trials on the merits’. She stated that the Tribunal must take into account rules of law, the rights of the accused and, particularly, the interests of justice required by the victims and the international community as a whole (para. 22 of Decision). The Chamber noted that, during the hearing on 22 February 2000 in Arusha, Del Ponte stated: ‘The government of Rwanda reacted very seriously in a tough manner to the decision of 3 November 1999’. Later, the Attorney General of Rwanda, appearing as representative of the Rwandan government, in his submissions as amicus curiae to the Chamber, openly threatened the non- cooperation of the peoples of Rwanda with the Tribunal if faced with an unfavourable Decision by the Appeals Chamber on the Motion for Review. As part of its Decision, The Appeals Chamber stressed that the Tribunal is an independent body, whose decisions are based solely on justice and law. If its decision in any case should be followed by non- cooperation, that consequence would be a matter for the Security Council. (para. 34) In its Conclusion, the Chamber confirmed that the Appellant’s rights were violated, and that all violations demand a remedy. However, the violations suffered by the Appellant and the omissions of the Prosecutor are not the same as those which emerged from the facts on which the Decision is founded. Accordingly, the remedy ordered by the Chamber in the Decision, which consisted in the dismissal of the indictment and the release of the Appellant, must be altered. (para. 74) The Chamber then rejected the application of the Appellant to be released and decided that the remedy for the violation of his rights would be fixed at the time of judgment at first instance as follows: (a) If the Appellant is found not guilty, he shall receive financial compensation; (b) If the Appellant is found guilty, his sentence shall be reduced to take account of the violation of his rights. (para. 75)

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On 3 December 2003, Trial Chamber I found Barayagwiza guilty of conspiracy to commit genocide, of genocide and of direct and public incitement to commit genocide; but not guilty of complicity in genocide; guilty of crimes against humanity (extermination, persecution); not guilty of crimes against humanity (murder) and not guilty of serious violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II. The Chamber considered that the appropriate sentence for the Appellant was imprisonment for the remainder of his life. However, taking into account the violations of his rights, the Chamber sentenced the Appellant to 35 years’ imprisonment, less credit for time served (Case ICTR-99-52-T). On 28 November 2007, the Appeals Chamber reversed several findings of guilt, affirmed others and substituted the prison sentence of 35 years for a prison term of 32 years subject to credit for time spent in custody (ICTR-99-52-A). Rwanda had reinstituted its cooperation with the Tribunal in February 2000. Prosecuting the victors? The Special Rapporteur of the UN Commission on Human Rights on the situation of human rights in Rwanda, René Degni Segui, confirmed in May 1994 (before the end of the genocide) that a genocide against the Tutsi had occurred. In the areas controlled by the (Tutsi-led) Rwandan Patriotic Forces (RPF), he wrote that there was no eyewitness evidence to accept the charge made by the Hutu interim government that the RPF had massacred several thousand civilians. What was certain, however, was that the RPF had been guilty of summary executions. Alleged ‘acts such as murder, political assassination, execution of hostages and other inhuman acts committed against the civilian population or unarmed soldiers by the armed forces of the two parties to the conflict constitute war crimes ...’ Among the perpetrators of crimes, he felt that ‘some responsibility can be apportioned immediately to ... RPF organs, particularly those in charge of its military activities’. 30 The United Nations Impartial Commission of Experts concluded in its Report31 that both sides committed crimes during the period from 6 April to 15 July 1994: (a) Individuals from both sides to the armed conflict have perpetrated serious breaches of international humanitarian law, in particular of obligations set forth in Article 3 common to the

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four Geneva Conventions of 12 August 1949 and in Protocol II additional to the Geneva Conventions and relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977; (b) Individuals from both sides to the armed conflict have perpetrated crimes against humanity in Rwanda; (c) Acts of genocide against the Tutsi goup were perpetrated by Hutu elements in a concerted, planned, systematic and methodical way. These acts of mass extermination against the Tutsi group as such constitute genocide within the meaning of Article II of the Convention on the Prevention and Punishment of the Crime of Genocide. The Commission has not uncovered any evidence to indicate that Tutsi elements perpetrated acts committed with the intent to destroy the Hutu ethnic group as such. The Statute of the Tribunal does not restrict its competence to Hutu perpetrators of the genocide carried out in 1994 against the Tutsi group; it has the ‘power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan Citizens responsible for genocide and other violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994 ...’ (Article 1). According to its mandate, it should identify, investigate, prosecute and try alleged perpetrators of both sides to the conflict, both Hutu and Tutsi. However, by 2008, no Tutsi political or military leader had been indicted, arrested or tried by the Tribunal for crimes allegedly committed by them against Hutu civilians in 1994. According to a UNHCR report produced by Robert Gersony in October 1994, between April and August 1994 the RPF killed between 25,000 and 45,000 Hutu civilians. Apparently the motive was to revenge killings of Tutsi as well as to eliminate the Hutu political and social elite to avoid future opposition to the RPF. The report was withdrawn by the UN.32 According to Cruvellier,33 the first Prosecutor, Richard Goldstone, appointed in 1994, did nothing about the issue of prosecuting RPF leaders. His successor, Louise Arbour, who replaced him in 1997, more tactfully but belatedly admitted not having wanted to take the risk. She is said to have ordered her assistant to stop the prosecution of Kagame for the assassination of Habyarimana.34 Carla Del Ponte, in place since 1999, started ‘special investigations’ in 2000. In 2003, she announced that she would soon begin prosecutions

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of members of Kagame’s government. In her memoirs, Del Ponte states: The Rwandan Patriotic Front’s victory ended the genocide, and brought Paul Kagame and other Tutsi leaders into power in Rwanda. But RPF troops had also committed massive crimes against humanity, killing some civilians during military action and executing many more after fighting with the Rwandan army had ended. In some areas, Tutsi troops killed unarmed women and children after luring them with promises of food or transportation to other areas. In particular, she refers to the killing by RPF soldiers of the archbishop of Kigali, two bishops, an abbot, nine priests and three girls on 5 June 1994. One priest managed to flee.35 The Rwandan government, with U.S. support, wanted the Tribunal to stop these investigations. They wanted that all findings of the ICTR Prosecution be referred to Rwandan courts that would be solely in charge of investigations and possible prosecution. In May 2003, Del Ponte rejected these proposals.36 On 7 August 2003, four human rights groups37 wrote to the Security Council stating, in part, that [in] making changes to improve the efficiency of the ICTR, the Security Council must take great care to safeguard the independence and impartiality of the tribunal. In particular, the Security Council must ensure that any changes do not undermine the ICTR’s efforts to prosecute charges of war crimes and crimes against humanity against members of the Rwandan Patriotic Army (RPA).38 According to press reports,39 Rwanda had won support from the United States and the United Kingdom to separate Del Ponte from the ICTR, in order to block several pending indictments of the Rwandan government’s members. On 28 August 2003, the Security Council created a new position of Prosecutor for the ICTR – until then the Prosecutor for the ICTY also served as Prosecutor for the ICTR – by amending Article 15 of the Statute of the ICTR. On 4 September 2003, the Security Council appointed Hassan Bubacar Jallow (Gambia) to the new position, for a four-year term from 15 September. At the same time, Del Ponte was appointed as Prosecutor for the ICTY (only) also for a four-year term.40 While past experience showed that the ICTR had suffered from lack of attention

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on the part of past Prosecutors who had given more of their time and interest to the ICTY than to the ICTR, the motivation for separating the two functions in 2003 appeared to be more linked to political considerations than to rational concerns of effectiveness. On 4 June 2008, Prosecutor Jallow said, before the Security Council, among other issues, that he had been able to establish a prima facie case that on 5 June 1994, RPF soldiers killed some thirteen clergymen, including five bishops, and two other civilians, at the Kabgayi Parish in Gitarama. The Rwanda Prosecutor General had informed him of his decision to soon indict and prosecute four serving senior military officers of the RPA, with murder and complicity to murder as war crimes. Recalling that Rwanda shares concurrent jurisdiction with the ICTR over such offences, Jallow had decided to hold in abeyance further action on his part on the clear understanding that any such prosecutions in and by Rwanda should be effective, expeditious, fair and open to the public.41 His office would also monitor these proceedings.42 In a ‘Letter from ICTR Detainees to the UN Secretary- General Ban Ki Moon and the ICTR President’ of 29 June 2008, on the subject of ‘Denunciation of the obstruction of justice by the ICTR Prosecutor’, the signatories denounced the omission of other cases concerning hundreds of thousands of civilians massacred by RPF soldiers, depriving the ICTR judges of the possibility to hear cases about crimes committed by RPF members at Kabgayi and elsewhere in Rwanda in 1994. They accused the Prosecutor of conducting a discriminatory prosecution with the objective of shielding RPF military from international justice, knowing that President Kagame has consistently said that RPF officers never committed the crimes of which they are accused. The letter also referred to a press conference of 18 June 2008, during which Kagame stated that the judges should not put the blame on the RPA military who might have committed crimes during the war. He maintained that if the judges think that they have the power to do so, they should instead ask him to answer for them because all of them were under his command.43 The position of the Rwandan government had already been made clear in a statement delivered to an April 2008 meeting of the African Union’s ministers of justice and attorneys with the title: ‘The Issue of “Universal Jurisdiction” Where Foreign Judges Allocate Themselves the Duty and Responsibility to Take Over, Control and Dominate Judicial Process in Independent Sovereign States for the Purpose of Political Gain’. The statement included the accusation that ‘foreign judges seek to recolonize Africa through a form of ‘judicial coup d’état’ under the guise of ‘judicial independence’ and ‘universal jurisdiction’.44

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Completion strategy As noted in the previous chapter on the ICTY, both the ICTY and the ICTR were established as temporary courts, and both were called upon, by resolution of the Security Council 1503 (para. 7) of 28 August 2003, to ‘take all possible measures to complete investigations by the end of 2004, to complete all trial activities at first instance by the end of 2008 and to complete all work in 2010 (the Completion Strategies). By the same resolution, the ICTR was urged to formalize a detailed strategy, modelled on the ICTY Completion Strategy, in order to achieve the completion target time set. Security Council resolution 1534 of 26 March 2004 was more specific. It asked the ICTR (and the ICTY) to concentrate on the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the Tribunal. The Prosecutor should also review the caseload of the Tribunal in order to determine which cases should be proceeded with and which should be transferred to competent national jurisdictions. Problems arose with regard to referrals of cases to national courts, one of the key elements of the Completion Strategy. No African state volunteered to accept such referrals, probably on unspoken political and security grounds. Only France, Belgium and the Netherlands have accepted ICTR referrals. On 20 February 2008, France accepted the referral of the priest Wenceslas Munyeshyaka and the former Prefect Laurent Bucyibaruta by the ICTR. They will be judged by French courts.45 In three other cases, a Trial Chamber denied the Prosecutor’s request for a transfer to Rwandan courts, not being satisfied that, on referral, the accused’s rights to an independent tribunal and to obtain the attendance and examination of witnesses would be guaranteed. In two of these cases, the accused might face life imprisonment in isolation without adequate safeguard of his right not to be subjected to cruel, inhuman and degrading punishment. In another case, at the Prosecutor’s request, a Trial Chamber revoked the referral of an accused to the Netherlands, as a result of a Dutch District Court decision finding that it had no jurisdiction in a case involving a Rwandan accused of genocide allegedly committed in Rwanda in 1994.46 Rwanda had removed a major obstacle to transfers of cases from the ICTR to its own courts by abolishing the death penalty in July 2007. However, serious doubts remained as to the fairness of Rwandan justice. Both Human Rights Watch and Amnesty International oppose transfers to Rwanda courts. A report by Human Rights Watch released on 23 July 2008 states that the Rwandan government has made technical

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improvements in the delivery of justice but that there are ‘continuing areas of concern, including the susceptibility of judges to pressure from members of the executive branch and other powerful persons, and the failure to assure basic fair trial standards – including the presumption of innocence, the right to present witnesses in one’s own defence, and the right to protection from double jeopardy’.47 William Schabas, Director of the Irish Center for Human Rights disagreed with the position of HRW. He said, during a conference in Brussels in July 2008, that ‘Everything is not perfect in Rwanda’, but ‘we must show more respect towards national courts’.48 In his address to the UN General Assembly of 13 October 2008, the President of the ICTR wrote that the task of complying with the Completion Strategy had been ‘daunting’. By December 2009, the Trial Chambers will be required to deliver judgments against 38 accused. This was likely to increase dramatically the workload of the Appeals Chamber. A supplementary budget to retain staff will be required for the trials planned for 2009. On 12 June 2009, speaking to the ICTR staff in Arusha, the President of the Tribunal said that the Appeal Chamber expected to continue its work until mid-2013, thus well beyond the 2010 completion target. He said that the Security Council was aware that the workload of the Tribunal would go beyond 2010.49 Legacy issues These have been discussed in Chapter 2. As they apply equally to both the ICTY and the ICTR Tribunals, they are not repeated here.

Conclusion The tribunal’s achievements In his address to the General Assembly of 13 October 2008,50 Judge Dennis Byron, President of the ICTR, gave a rather rosy picture of these achievements, as in the following excerpts: But, today, whatever system is employed to measure the success of the venture, there can be no doubt that peace has been restored and maintained in Rwanda, that there is a credible and ongoing process of national reconciliation, that many of the violations have been addressed and that some have been effectively redressed. Of course work remains to be done, and circumstances have given the Tribunal new tasks. But there can be no doubt that the Tribunal has been

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a central and stabilising instrument that has made major and lasting contributions to the establishment of international justice, peace and reconciliation that currently prevail in the region. Among the most basic and most important of the Tribunal’s achievements has been the accumulation of an indisputable historical record, including testimony of witnesses, testimony of victims, testimony of accused, documentary evidence, video recordings and audio recordings. This record was invaluable to the Appeals Chamber when it discredited and rejected the theory that genocide and widespread or systematic attacks against civil population had not actually occurred in Rwanda in 1994. ... The Tribunal has also fostered national compliance with international obligations in the human rights sphere. For example, Rwanda has already abolished death penalty in order to facilitate the transfer of cases to its jurisdiction. The referral proceedings have also put the spotlight on other countries that need to adopt domestic legislation implementing the human rights treaties and conventions to which they are parties. Indeed, the Tribunal has achieved much under taxing circumstances; it has judged and is judging most of the ministers of the interim government in office during the genocide, and a number of other persons directly involved in the planning and implementation of the genocide. However, its work has been slow and costly, and is still incomplete. Among the reasons for the Tribunal’s initial slow pace are: its relative isolation in a small African country; the need to build from nothing a working international court; initial lack of support from African and European governments; lack of assistance from UN headquarters; serious management problems; lack of interest by the international media; the hiring of incompetent or corrupt staff and the neglect by the successive Prosecutors common to both Tribunals who gave priority to the ICTY. The restoration of peace cannot be attributed to the Tribunal; peace was the outcome of the military victory of the Rwanda Patriotic Forces (RPF) over the Hutu forces, and is maintained by a strong Tutsi-led government which allows no political, ideological or social dissent. The RPF dominates and controls all levers of power: the government, the military and security services, the bureaucracy, the judiciary, the economy and the universities. The process of national reconciliation is a policy ‘imposed’ by the Kagame regime. The Tribunal has had no primary role in this matter and

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has no power or influence on the situation of Rwanda. Reconciliation is a political matter, not a judiciary, function. The conviction, trial and punishment of a few senior Hutu leaders, responsible for the genocide, provide a degree of reparation to Tutsi groups, victims and their relatives. However, the Tribunal has been unable to investigate war crimes and crimes against humanity allegedly committed by the Tutsi Rwandan Patriotic Army (RPA). Political pressures It has been shown that the Rwandan government has applied pressures, with the support of some Western governments, on the Tribunal’s prosecutors and judges in order to bend some of the Tribunal’s decisions to its own views. In doing so, the government has eroded the statutory independence and impartiality of the Tribunal, thus affecting its public and judicial image. The Rwandan government fought successfully to reverse the first Appeals Chamber decision to release Barayagwiza on procedural grounds. Aside from these pressures, the proven guilt of this Hutu extremist, propagandist of hate against Tutsi ‘cockroaches’ through radio broadcasts, promoting the killing of hundreds of thousands of civilians, should have prevented his extraordinary release, and should have prevailed over strictly judicial procedures. It appears to this author that the reversal of this decision, even if one can deplore governmental pressures supported by the then Prosecutor, was fair and equitable. Government pressures and obstruction have also been successful in preventing the Tribunal’s Prosecutors from identifying, investigating, prosecuting and trying RPA members against whom evidence of violations of international humanitarian law was or could be established. Such investigations were required in order to show that the Tribunal was not only prosecuting Hutu leaders who planned and carried out the genocide. The device of the last Prosecutor to refer a handful of RPA cases to Rwanda is an ineffective veil against a charge of ‘victors’ justice’. It has brought serious damage to the independence of the ICTR, by allowing the Rwandan government to ensure the impunity of the RPA leaders. The final straw was the removal of Carla Del Ponte from the post of Prosecutor of the ICTR, as demanded by the Rwandan government with support from the United States, for having dared investigate RPA violations.51 Preventing these investigations is comparable to the non-investigation by the ICTY of alleged NATO crimes. Political power – in one case, the power of NATO and NATO countries, the main creators and financiers

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of the ICTY, and, in the other, the power and sovereignty of the country which suffered from the genocide – prevailed over the principle of independence of the international tribunals. It is unfortunate that the Prosecutor was not allowed to carry out investigations of these cases, to be then submitted to a Trial Chamber to assess whether a prima facie case had been established by the Prosecutor. This leaves an unfinished taste to both Tribunals’ proceedings. In practice, one recognizes that both NATO and Rwanda would have made investigations difficult, or even impossible, but, at least, the Tribunals would then have publicly acknowledged the limits and obstacles placed in front of their work. International tribunals do not work in a political and social vacuum. When they have to submit to political pressures, the record should show the facts. In spite of the imperfections and failings of both the ICTY and the ICTR, the Tribunals have contributed to the erosion of the impunity of top leaders and to the verification and recording of historical facts. Following the victors’ justice of the Nuremberg and Tokyo Tribunals, they have made international criminal justice a reality, albeit an imperfect and temporary one. Their creation, functioning and jurisprudence have made an essential and significant contribution to the drafting of the Statute of the International Criminal Court. The experience slowly and, at times, painfully gained by the two Tribunals also constitutes an extended source of reference for the Prosecutors, judges and Registrar of the Court. The ICC will unavoidably face similar pitfalls and political obstacles to those experienced by the ICTY and the ICTR. The question is: how will the new court deal with these issues?

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Part II The Mixed National/International Courts

The International Criminal Tribunals for the Former Yugoslavia (ICTY, 1993) and for Rwanda (ICTR, 1994) were not adopted as ‘models’: no new ‘international criminal tribunals’ were established, with the major exception of the permanent International Criminal Court (see Chapters 8 and 9). The Security Council, suffering from ‘tribunals fatigue’, having faced slow trials and high costs from these Tribunals, had no intention of creating yet other tribunals in the same format. Government representatives and the UN Secretariat had heard praise but also many criticisms, in particular about the distance between the Tribunals and the local populations. When considering new conflict or post- conflict situations where calls for justice were made, a different approach was adopted. Hybrid, mixed national international tribunals were created, not by the Security Council itself, but by treaties, where both national and international criminal legislation was applied by a varying mix of national and international judges. The Special Panels for Serious Crimes for East Timor, now TimorLeste, were established in 2000 (Chapter 4), the Special Court for Sierra Leone was created in 2002 (Chapter 5) and the Extraordinary Chambers for Cambodia were instituted in 2004 (Chapter 6). The Special Tribunal for Lebanon was set up in 2007 (Chapter 7).

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4 Special Panels for Serious Crimes in East Timor – Now Timor-Leste

The ‘Serious Crimes Process’ in Timor-Leste, consisting of Special Panels and a Serious Crimes Unit, was established in 2000. This hybrid court involves both national and international justice elements: the Special Panels have two international judges and one Timorese judge. The Timor-Leste process operates within the domestic judicial system of Timor-Leste. The Panels are ‘localized’: they are positioned in the country where the crimes were committed. This case also involves the parallel creation of two Truth Commissions. The creation and work of the Timor-Leste Panels were faced with the hostility and obstruction of Indonesia, whose political and military leaders were responsible for the major crimes in East Timor. The longtime support of the United States to Indonesia increased when Indonesia became a major actor in the American ‘war against terrorism’ started after the attacks against the Twin Towers of 11 September 2001. The United Nations initially supported East Timor with General Assembly resolutions affirming the ‘inalienable right of the people of East Timor to self- determination and independence and the legitimacy of their struggle to achieve this right’, then in approving the Australian-led intervention of INTERFET, the creation of the Transitional Administration in East Timor and of the Special Panels for Serious Crimes. After the independence of Timor-Leste, the UN Security Council failed to apply pressure on Indonesia for the transfer of senior Indonesian officials indicted by the Serious Crimes Unit. The net result is that those mainly responsible for war crimes and crimes against humanity, for grave breaches of human rights and humanitarian law in East Timor are still enjoying impunity. 109

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Political and military context Timor-Leste was a Portuguese colony for almost 500 years. In the 1960s, the United Nations rejected Portugal’s claim on Timor-Leste and placed it on the list of non-self-governing territories under Chapter XI of the UN Charter.1 Following a coup in Portugal on 25 April 1974, a decolonization process began in Portuguese Timor which deteriorated into civil war between Timorese political parties, with some involvement from Indonesia, and the Portuguese administration withdrew. The Revolutionary Front for an Independent East Timor, FRETILIN, declared independence on 28 November 1975, which was followed by the Indonesian invasion of the territory on 7 December 1975, with the tacit agreement of the United States. The annexation of East Timor by Indonesia as its ‘27th Province’ in July 1976 was not recognized by the United Nations; the UN General Assembly rejected Indonesia’s claim that East Timor had been integrated into Indonesia in 1975 by resolution 3153 of 1 December 1976, affirming in part ‘the inalienable right of the people of East Timor to self determination and independence and the legitimacy of their struggle to achieve that right’.2 The invasion was the beginning of an almost 24-year occupation marked by extensive military brutality against a lightly armed resistance movement and the Timorese population. After the downfall of the Suharto regime in Indonesia in 1998, the new Indonesian President, B. J. Habibie, agreed in January 1999 to hold a popular consultation for the people of East Timor to decide between ‘special autonomy’ within Indonesia and full independence. Despite violence by local militias supported by the Indonesian military and police, in May 1999 a series of agreements were concluded between the UN, Indonesia and Portugal. Pursuant to these ‘May 5 Agreements’, the Indonesian government agreed, inter alia, to implement a fair and transparent ballot and to maintain public order and security before and during the consultation, an undertaking not respected by Indonesia. In the consultation held on 5 September 1999, 78.5 per cent of the voters rejected the autonomy option and chose independence. Militia violence escalated and only ended after the intervention of the Australian-led Intervention Force for East Timor (INTERFET) troops on 20 September 1999, as authorized by the UN Security Council (res. 1264).3 Under international pressure, Indonesia ceded control of TimorLeste to the UN on 27 September 1999. After the Indonesian withdrawal, by resolution 1272 of 25 October 1999, acting under Chapter VII of the UN Charter, the UN Security

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Council established the UN Transitional Administration in East Timor (UNTAET) endowing it with overall responsibility for the administration of East Timor, exercising all legislative and executive authority, including the administration of justice. A Transitional Administrator would be appointed by the Secretary- General, who would have the power to enact new laws and regulations and to amend, suspend or repeal existing ones. Cooperation between Indonesia, Portugal and UNTAET was important. The resolution condemned all violence and acts in support of violence in East Timor and demanded that those responsible for such violence be brought to justice. The UN thus acted as the government of Timor-Leste until elections were held. A constitution was drafted by a popularly elected Constituent Assembly, and, on 20 May 2002, the President of Republic of Timor-Leste declared the independence of the country. Timor-Leste was admitted to the UN as its one-hundred-ninety-first member state on 27 September 2002. UNTAET was then transformed into a smaller UN Mission of Support for East Timor (UNMISET), with a mandate expiring in May 2005, then replaced by the even smaller UN Office in Timor-Leste (UNOTIL) which closed in August 2006.4 The UN Integrated Mission in Timor-Leste (UNMIT) was established by the Security Council by resolution 1704 of 25 August 2006. Its mandate extended until 26 February 2011 (resolution 1912 (2010)).

Indonesian crimes Indonesian occupation of Timor-Leste from 1975 involved continuous violations of international human rights and humanitarian law, carried out by Indonesian military and police authorities, and Indonesiasupported Timorese militias, with the assent of, or as directed by, the Indonesian government. They ranged from torture of suspected resistance members and suspected supporters of independence, disappearances, confiscation of land for migrant settlers from other parts of Indonesia, rapes, forced marriages and forced sterilizations and general intimidation of the population through mass killings of civilians, including nuns. Two United Nations reports gave evidence of the serious crimes committed in Timor-Leste and of the involvement of the Indonesian armed forces and police in those crimes. The first report was submitted by a joint mission to East Timor undertaken by the Special Rapporteur of the Commission of Human Rights on extrajudicial, summary or arbitrary executions, the Special Rapporteur on the question of torture and the Special Rapporteur on violence against women, its causes and

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consequences, referred to the UN General Assembly on 10 December 1999.5 What is clear is that they [human rights crimes and violations perpetrated before and after the 30 August 1999 consultation] took place in the context of an attack against the East Timorese population that overwhelmingly supported independence from Indonesia. They include murder, torture, sexual violence, forcible transfer of population and other persecution and inhumane acts, including destruction of property. These have all been committed on a scale that is widespread or systematic or both ... there is already evidence that TNI [the Indonesian armed forces] was sufficiently involved in the operational activities of the militia, which for the most part were the direct perpetrators of the crimes, to incur the responsibility of the Government of Indonesia. What still remains to be determined is how much of TNI and to what level in the hierarchy there was active involvement, or at least, culpable toleration of the activities.6 The report of the International Commission of Inquiry on East Timor, established by the UN Secretary- General was submitted to the General Assembly and the Security Council on 31 January 2000.7 The Commission was to gather and compile systematically information on possible violations of human rights and acts which might constitute breaches of international humanitarian law committed in East Timor since January 1999. The Commission concluded that there were patterns of gross violations of human rights and breaches of humanitarian law which varied from time to time and took the form of systematic and widespread intimidation, humiliation and terror, destruction of property, violence against women and displacement of people. Patterns were also found relating the destruction of evidence and the involvement of the Indonesian Army (TNI) and the militias in the violations. Local and international staff of UNAMET, other humanitarian agencies, NGOs and journalists were also targeted by the militia and TNI. In 2006, the International Center for Transitional Justice confirmed these findings. Following the referendum of independence the TNI [Indonesian armed forces] and Timorese militias embarked in a scorched- earth policy, burning down Dili and other towns and

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killing hundreds, in addition to committing many other types of atrocities. This was a well-planned attack, involving all levels of [Indonesian] civil and military administration, that resulted in the displacement of more than 50 percent of the population (at least 400,000 people), many of whom were expelled to Indonesian West Timor. The violence left at least 1,300 people dead and many more raped or seriously injured, and resulted in a near total devastation of the territory’s property and infrastructure.8

Seeking justice The reports of the two Commissions mentioned above, the Special Rapporteurs of the Human Rights Commission and the UN Commission of Inquiry, both recommended the establishment of an international criminal tribunal, such as those created for the Former Yugoslavia and for Rwanda.9 However, this question was not pursued further. This was in part because of ‘tribunal fatigue’ of the Security Council, due to criticisms of the ICTY and ICTR over the slow pace and high costs of these tribunals and their perceived lack of results, – and, more decisively, the opposition of Indonesia’s political and military establishments to the creation of an independent international tribunal. The Indonesian ‘ad hoc human rights courts’ In response to international pressures following the 1999 atrocities, and in order to counter the threats to set up an international tribunal, Indonesian Law 26/2000 created permanent human rights courts in several cities with non-retroactive jurisdiction, and allowed ad hoc courts with retroactive jurisdiction to be created by presidential decree. With respect to East Timor, the Ad Hoc Human Rights Court was established on 23 April 2001 with jurisdiction limited to crimes committed in Suai, Liquiça and Dili in April and September 1999.10 According to a November 2004 report by the Coalition for International Justice,11 of the 33 individual perpetrators named in a report by Indonesia’s own Human Rights Commission released on 31 January 2000, many of the highest ranking officers were not charged [by the Ad Hoc Court]. Of the eighteen who were indicted, twelve were acquitted at the trial stage, four had their convictions reversed by decisions of the court of appeal in July 2004, and one, Abilio Soares, the last governor of East Timor and one of two East Timorese charged, had

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his conviction overturned by the Supreme Court on 5 November 2004. For the Coalition for International Justice, the Ad Hoc Human Rights Court has been a failure in every important respect, in part due to the lack of capacity of the Attorney General’s office, but mainly due to the Indonesian government’s lack of political will to pursue justice. Judges also varied considerably in competence and preparation. Intimidation of witnesses, judges and lawyers was a major problem during the trials. The ‘Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999’ appointed by the UN Secretary- General on 18 February 200512 has confirmed these assessments. The Commission concluded that the prosecutions before the Ad Hoc Court were manifestly inadequate, primarily owing to a lack of commitment on the part of the prosecution, as well as to the lack of expertise, experience and training in the subjectmatter, deficient investigations and inadequate presentation of inculpatory material at trial: ‘significantly, investigations and prosecutions were undertaken at a time when there was an evident lack of political will to prosecute the defendants and lack of material and moral support for these investigations ... The failure to investigate and prosecute the defendants in a credible manner has not achieved accountability of those who bear the greatest responsibility for serious violations’. Short notes concerning three accused deemed to be mainly responsible for the crimes committed in East Timor follow.13 Like others, they escaped retribution or were acquitted. General Wiranto was Commander in Chief of the Indonesian Army and Minister of Defence during the events in East Timor. He was relieved of these functions in February 2000 by President Abdurrahman Wahid. On 25 February 2003, Wiranto, together with seven other high-placed military and civilian personalities,14 was indicted by the Serious Crimes Unit in Dili. Based on the act of indictment, Wiranto and the other accused were charged with murder, deportation and persecution as crimes against humanity, being implicated through their superior responsibility. On 10 May 2004, the Special Panel for Serious Crimes issued an arrest warrant against Wiranto. However, the Indonesian authorities refused to cooperate with the Timorese courts. General Wiranto was a candidate in the Indonesian presidential elections in July 2004. On 6 May 2007, General Wiranto appeared before the Indonesia-Timor-Leste Commission of Truth and Friendship saying that charges that Indonesian troops committed gross rights violations during

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East Timor’s 1999 vote were ‘senseless and crazy’. He said that ‘there was no policy to attack civilians, there were no systematic plans, no genocide or crimes against humanity’ (Timor Leste News archive, 2007). Major- General Adam Damiri was in 1999 regional commander of the military region of which East Timor was a part. He is said to have played a central role in the spread of violence in the territory, and of having taken an active part in the organization of the pro-Indonesia militias by ensuring that they were trained, funded and given arms. On 1 July 2002, he was charged with crimes against humanity by the Ad Hoc Tribunal. The Prosecutor changed position on 5 June 2003 and demanded that the accused be acquitted for lack of sufficient evidence. The Tribunal rendered a guilty verdict on 5 August 2003 and sentenced him to three – years’ imprisonment. Damiri was acquitted on appeal on 5 August 2004. J. A. Osorio Soares was the Indonesian governor of East Timor in 1999. Charged with crimes against humanity by the Ad Hoc Tribunal, he was convicted by the First Chamber on 14 August 2002 and sentenced to three years in prison. He was acquitted on appeal by the Indonesian Supreme Court on 5 November 2004. The serious crimes process in Timor-Leste The serious crimes process in Timor-Leste was a hybrid system, insofar as it occurred within the domestic judicial system of the country, yet it was staffed with international judges, lawyers and investigators. The ‘Special Panels for Serious Crimes of the Dili District Court’ were established by UNTAET in 2000 to try cases of ‘serious criminal offences’ that had occurred in 1999, while national judges dealt with ‘ordinary crimes’.15 This creation was entirely the initiative of the international staff within the UN secretariat, without consultation with Timorese judicial personnel. The possibility of creating a hybrid court by treaty (as for the Special Court for Sierra Leone) did not occur as there was no national government with whom to contract. The creation of the Panels was accomplished by ‘national legislative action’, by means of Regulations of UNTAET.16 The Panels’ activities ran from 2002 until their closing in May 2005. Structure of the serious crimes process The structure of the serious crimes process had three elements:17 1. The judicial component was constituted by the Special Panels themselves. They were panels of judges within the Dili District Courts

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(DDC). Each panel was composed of two international judges, employed by the UN, and one Timorese judge. Appeals from the Panels were to the Court of Appeal, composed also of two international judges and one Timorese judge. 2. The prosecutorial component was constituted by the Serious Crimes Unit (SCU). The Unit was part of East Timor’s Office of the ProsecutorGeneral but it was funded and staffed by the UN. At its peak in 2002, the SCU consisted of 106 staff members, including 31 international staff members, sixteen UN volunteers, twenty UN police officers, twenty-nine national staff members, and ten national trainees. The SCU was under the institutional authority of the Prosecutor- General of East Timor, its head, the Deputy Prosecutor- General for Serious Crimes was responsible to the Prosecutor- General. These Deputies were all international staff appointed by the UN. They were responsible for the SCU prosecutorial strategy and the coordination of prosecutions on the basis of SCU investigations. They carried out these functions largely independently of external control. 3. The defense component was constituted by the Defense Lawyers’ Unit, responsible for coordination of and conduct of the defense of indictees. The Unit was not established by UNTAET regulation, but operated as an independent entity staffed by UN staff members. Jurisdiction The Special Panels had exclusive jurisdiction with respect to genocide, war crimes and crimes against humanity – murder, sexual offences and torture – if committed between 1 January and 25 October 1999. The Panels were also granted ‘universal’ jurisdiction with respect to genocide, war crimes, crimes against humanity and torture, that is, jurisdiction over these crimes regardless of where in the world such crimes were committed, or regardless of the nationality of the perpetrator or victim. The applicable law During UNTAET’s operation, the applicable law in East Timor was UNTAET Regulations, and any Indonesian legislation not in conflict with UNTAET legislation, Security Council resolution 1272 (1999) or internationally recognized human rights standards. Since East Timor’s independence on 20 May 2002, the hierarchy of applicable laws was: ●

international law, while any laws inconsistent with ratified and published international laws were invalid;

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UNTAET Regulations would continue to apply except where inconsistent with the Constitution of the Democratic Republic of TimorLeste or subsequent legislation; Indonesian laws would continue to apply if not inconsistent with Timor-Leste laws of UNTAET Regulations, and to the extent that they are consistent with accepted international human rights norms.

Funding The Serious Crimes Unit (SCU) and Special Panels were mainly funded from the general UN peacekeeping budget through UNTAET and UNMISET, based on assessed contributions and supplemented by voluntary contributions. For the period 2003–2005, the total operating costs of the SCU and Special Panels were $14,358,600. The Unit also received direct bilateral support by way of seconded posts from international NGOs (such as the Coalition for International Justice) and national governments (such as Australia and Norway).18 Achievements and failures The Serious Crimes Unit issued indictments against 440 defendants in respect to 572 of the approximately 1,400 murders committed in 1999.19 In all, 87 suspects were eventually brought to trial, 84 of whom were convicted. A large proportion of the many crimes within the SCU’s mandate have not been investigated adequately or at all, in large part due to time and resource constraints, which in turn limited indictment policy. At the early stages of its operations, the SCU decided to focus on the events of 1999, although its jurisdiction extended to all crimes committed since the Indonesian invasion and occupation in 1975. Early investigations were criticized for failing to focus on the systematic nature of the violations and the role played by the Indonesian military apparatus, treating them as individual criminal cases – the initial indictments included only domestic charges of murder – rather than crimes against humanity. Furthermore, a large number of the crimes committed in 1999 have not been investigated. A more important failure is that the SCU only convicted low-level Timorese offenders, and was not able to try the senior Indonesian political and military officials alleged to bear command responsibility for the crimes. At the closure of the SCU in May 2005, 339 of the 440 persons indicted by the SCU remained beyond Timorese jurisdiction, in Indonesia.20 The International Center for Transitional Justice21 confirmed that the greatest difficulty facing the SCU in its investigations was that the

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majority of its suspects were beyond its jurisdiction in Indonesia. A Memorandum of Understanding was agreed upon by UNTAET and the Indonesian government on 5 and 6 April 2000 for cooperation in legal, judicial and human rights–related matters. This stated, inter alia, that the parties would ensure that warrants of arrest would be enforced and the accused persons would be transferred to the SCU in Dili. This was not implemented as the Indonesian authorities later claimed that it had to go through national procedures to be ratified. The Memorandum was also limited to the period of the UN administration in Timor-Leste. In any case, the Indonesian authorities had no intention of having their senior political and military leaders tried in Dili. The attitude of the Timorese leaders Another political problem was the mixed support given by senior Timorese politicians to the SCU’s and Special Panels’ work. These politicians did not support the indictments charging senior Indonesian officials with crimes against humanity. On 25 February 2003, General Wiranto, together with seven other high-level military and civilian persons, was indicted by the Serious Crimes Unit. Details are given above on the cases of General Wiranto (not indicted by the Ad Hoc Tribunal), Major- General Damiri, Colonel Muis, Governor Soares, Lieutenant Colonel Sudrajat and Colonel Suratnam, who were indicted by the Ad Hoc Tribunal. Additionally, Major- General Z. A. Makarim and K. Syahnakri were indicted by the Serious Crimes Unit but not by the Ad Hoc Tribunal. They were all implicated through their superior responsibility. On 28 February 2003, the SCU issued another indictment for 48 Timorese and Indonesians charged with crimes against humanity in 1999, including East Timor police Chief Timbul Silaen and militia leader Enrico Guterres. Gutteres had already been indicted by the Ad Hoc Tribunal in May 2002. None was transferred to Dili for trial as Indonesia refused to cooperate with the SCU. Senior Timorese politicians felt that better relations with Indonesia were a higher priority than judging the 1999 crimes. The Timor-Leste leadership later became more explicitly obstructive to judicial moves, and seemed to disassociate themselves from the UN Serious Crimes process. Timor-Leste President Xanana Gusmao said on 28 February 2003 that he regretted that the ‘independent Serious Crimes Unit’ had indicted Wiranto, adding that it would harm the relationship between Timor-Leste and Indonesia, but noted that he could not intervene in the prosecution: ‘They did not inform me, it’s not Timor-Leste policy’. Gusmao called on the international community to take over the

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full responsibility of trying those accused of crimes against humanity in 1999, considering that it was not within the national interest of the Timor-Leste authorities to be involved in these cases.22 President Gusmao even met with General Wiranto in June 2004, to the dismay of human rights organizations. The Timorese General Prosecutor, who had first supported the SCU’s work, later presented a motion to the Court seeking to have the Wiranto indictment withdrawn; the motion was dismissed.23 The commission for reception, truth and reconciliation (CAVR, Portuguese acronym) The Timor-Leste Commission for Reception, Truth and Reconciliation was set up in 2001, in parallel to the Serious Crimes process, and functioned from 2002 until its dissolution in December 2005. It was an independent statutory authority led by seven East Timorese Commissioners and mandated by UNTAET regulation 2001/10 of 13 July 2001 with three main objectives: to investigate the facts about human rights violations committed in East Timor between 1974 and 1999; to help reintegrate perpetrators of less serious offences into their communities,24 and to recommend measures to prevent future abuses to the government. The Commission had a number of successful public hearings, took more than 7,000 statements from victims and presented its final report to President Gusmao in October 2005. He distributed it to the Timorese Parliament and Prime Minister in November, but did not release it publicly because of Indonesian pressures. The CAVR Report, titled ‘Chega’, the Portuguese for ‘no more, stop, enough’, addresses killings and disappearances, forced displacement and famine, detention and torture, violations of the laws of war, political trials, sexual violence, violations of the rights of the child and violations of economic and social rights.25 Among its findings, the report showed that the crimes committed in 1999 were far outweighed by those committed during the previous 24 years of occupation, and that there have been no adequate justice measures for the crimes against humanity committed in East Timor during that period. The result of this lack of justice is that impunity has become entrenched: Those who planned, ordered, committed and are responsible for the most serious human rights violations have not been brought to account, and in many cases have seen their military and civil careers flourish as a result of their activities.

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The report invokes the responsibility of the international community; the definitive approach to achieve justice ‘should hinge critically on the commitment of the international community, in particular the United Nations’. The Commission recommended, inter alia, that the Serious Crimes Unit and Special Panels have their mandates renewed and their resources increased in order to continue to investigate and try cases throughout the period 1975–1999. The renewal should be based on the condition that these bodies should depend directly on the UN and not on the nascent judicial system in Timor-Leste which is not prepared to deal with the technical and political challenges of the cases. Indonesian authorities should investigate and prosecute those institutions of the Indonesian Armed Forces and those in positions of command. The Commission also recommended that The United Nations and its relevant organs, in particular the Security Council, remains seized of the matter of justice for crimes against humanity in Timor-Leste for as long as necessary, and be prepared to institute an International Tribunal pursuant to Chapter VII of the UN Charter should other measures be deemed to have failed to deliver a sufficient measure of justice and Indonesia persists in the obstruction of justice. President Xanana Gusmao finally handed the Commission report to UN Secretary- General Kofi Annan on 21 January 2006. The commission of truth and friendship (CTF) On 21 December 2004, the governments of Timor-Leste and Indonesia announced that they had agreed on the formation of a Truth and Friendship Commission to look into the referendum-related violence of 1999. Jose Ramos-Horta, Foreign Minister for Timor-Leste – a Nobel Peace Prize winner – said that the work of the Commission ‘would finally close this chapter. We would hope and intend that this initiative would resolve once and for all the events of 1999’.26 According to its terms of reference, the objective of this new Commission is to establish ‘the conclusive truth’ as to what occurred in East Timor in 1999 and to prevent a recurrence of similar events’. Its mandate is limited to the period leading up to and immediately following the referendum. The Commission’s process will not lead to prosecution. Offenders who ‘cooperate fully in revealing the truth’ could be granted amnesty, that is, guaranteed immunity from future prosecution

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irrespective of the nature of their crimes. Persons ‘wrongly accused’ of human rights violations are to be ‘rehabilitated’. The Commission’s investigations will neither prejudice the work of the Special Panels for Serious Crimes nor recommend the establishment of any other judicial body. Unlike the Truth and Reconciliation Commission in South Africa, the CTF has no decision-making power, it can only make recommendations to the parliaments of Indonesia and Timor-Leste. Criticisms came from victims’ groups, human rights NGOs and from the UN. In its November 2004 report (53), the Coalition for International Justice felt that the proposed creation of this Commission ‘fell short of providing any meaningful justice, as reflected in the fact that victims’ groups roundly oppose it. Identifying the perpetrators of mass crimes, then saying that identification is their sole punishment, may only exacerbate the harms and anger’. Eduardo Gonzales of the International Center for Transitional Justice explained: ‘Comparative experience suggests that official truth-telling works better when placed within a comprehensive transitional justice strategy, as a complement – not as an alternative – to criminal justice, reparations and guarantees of non-recurrence’. In its report of 2005,27 the Commission of Experts found that there are provisions in the terms of reference of the Commission of Truth and Friendship that contradict international standards on denial of impunity for serious crimes ... and that a mechanism was lacking for compelling witnesses to tell the truth before the Commission ... However, the spirit of reconciliation and providing reparations in the other provisions of the terms of reference offer appropriate avenues for rebuilding the relationship between Indonesia and Timor-Leste. In a workshop held on 10 December 2005 by the Catholic Church in Timor-Leste, the Commission was pilloried because it was established without consultation. Jeff Kingston28 was told that the Commission was a doomed effort to promote collective amnesia, a deeply flawed process aimed at burying the past and heading off recourse to justice; only the Indonesian generals welcomed the Commission. A Presbyterian reverend argued that in dealing with crimes against humanity an international tribunal is needed; such problems cannot be resolved bilaterally through the Commission. In July 2007, Secretary- General Ban Ki Moon told UN officials not to testify before the Commission of Truth and Friendship unless the

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Commission scraps the possibility of granting amnesty to those responsible for serious crimes. The UN ‘cannot endorse or condone amnesties for genocide, crimes against humanity, war crimes or gross violations of human rights, nor should it do anything that might foster them’. Indonesia’s Foreign Minister Hassan Wirajuda has criticized Ban Ki Moon over his position: ‘The UN has to realise this is a reconciliation process and not a prosecutorial one ... We never forced Timor Leste to agree, but they realized it was important to solve our past problems without sacrificing our friendship and cooperation’. Timor-Leste President Jose Ramos-Horta hailed the Commission as an example for post- conflict reconciliation.29 A 2008 report by the International Center for Transitional Justice30 confirms that many criticisms from human rights groups were well founded: The CTF appears to have been established more out of concern to enhance bilateral diplomatic relationships than to contribute substantively to truthtelling or national reconciliation between the peoples of Timor-Leste and Indonesia. ... The CTF’s activities have largely been conducted in private ... The TOR’s [terms of reference] ambiguity and focus on alleged perpetrators provided a basis for poorly designed hearings that prioritized accused perpetrators’ accounts over those of victims and experts. Despite the fact that these accounts contradicted the findings of highly respected official investigations and commissions, they were presented without contradiction to the public and the media ... They [the hearings] provided an unbalanced platform for the denials of high-level accused persons ... This may have reinforced claims that legitimate doubts remain about the source and nature of the crimes committed in East Timor in 1999, or indeed about whether crimes were committed at all.

Conclusion Justice has not been served in Timor-Leste. Evidence of continuous violations of international human rights and international humanitarian law by Indonesia in East Timor since 1975, or since January 1999, has been established by two UN reports – the report of the Special Rapporteurs of the Commission of Human Rights (1999) and the report of the International Commission of Inquiry on East Timor (2000), by the CAVR report ‘Chega’ (2005) – and confirmed by many reports from human rights organizations. These reports gave evidence of the direct

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involvement of the Indonesian army, thus incurring the responsibility of the government of Indonesia. Indonesian justice failed to achieve accountability of those who bear the greatest responsibility for serious violations, and it failed to deliver justice for the victims of these violations. The jurisdiction of the Indonesian Ad Hoc Human Rights Tribunal was limited to violations which took place between April and September 1999, thus ignoring Indonesian crimes committed in its East Timorese province since 1975. Of the 33 individual perpetrators named in a report of Indonesia’s Human Rights Commission, many of the highest-ranking officers were not charged by the Indonesian Ad Hoc Human Rights Tribunal, only 18 were indicted and all were acquitted at trial, appeal or Supreme Court levels.31 Timor-Leste justice also failed. The body parallel to the Indonesian Ad Hoc Tribunal, the Serious Crimes Unit, a joint UN-East Timor process, limited its operations to crimes committed between 1 January and 25 October 1999, also ignoring Indonesian crimes committed in East Timor since 1975. The Timor-Leste government was unable (or unwilling) to secure the surrender of the main suspects, who were in Indonesia. The serious crime process was a success only with regard to its performance: it indicted almost 400 persons, it held 35 trials, and 48 persons were convicted and 2 acquitted. However, they were all low-level persons from Timor-Leste, while the senior Indonesian military and political personnel remained unpunished. These failures were due mainly to political obstruction on the part of Indonesia. The Indonesian government had no intention of having their high-level political and military leaders publicly prosecuted by independent prosecutors, tried by independent tribunals and potentially indicted and sentenced to imprisonment. The creation of the Ad Hoc Human Rights Tribunal was under close control of the government and its judgments ensured the impunity of the main Indonesian perpetrators. By its own political and military power and proximity to East Timor, Indonesia was able to stifle the weak efforts of the Serious Crimes process by rejecting any arrest warrant and extradition requests of indicted Indonesians. Indonesia was able to influence Timor-Leste leaders into giving preference to their need for friendly relationships between the big and the small country over seemingly abstract and potentially dangerous efforts to pursue justice. The Indonesian and Timor-Leste governments hampered the work of their respective courts in an effort to protect the powerful Indonesian

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perpetrators. The Timor-Leste leaders became convinced that national reconciliation within the country and reconciliation with Indonesia was the best or the only way ahead for the poor and small country, rather than calling for justice. The UN initiative to set up the Serious Crimes process as a joint UN/ Timorese process, was a second best to an international tribunal, a brave move but a doomed one in view of the asymmetrical position between Timor-Leste and Indonesia and the lack of political will by the permanent members of the Security Council to apply pressure on Indonesia. In its 2005 report,32 the Commission of Experts recommended that the Security Council adopt a resolution under Chapter VII of the UN Charter to create an ad hoc international criminal court for TimorLeste, to be located in a third state. If this recommendation was not retained, the Experts suggested that the Security Council may consider the possibility of utilizing the International Criminal Court as a vehicle for investigations and prosecutions of serious crimes committed in East Timor. Also in 2005, the Commission for Reception, Truth and Reconciliation in East Timor (CAVR) recommended that the Security Council be prepared to institute an International Tribunal under Chapter VII, if Indonesia persists in the obstruction of justice. The Coalition for International Justice, the Judicial System Monitoring Programme, and other NGOs33 also support this option. However, both Indonesia and Timor-Leste oppose this option, and there is no political will nor support in the Security Council to create another ad hoc international criminal tribunal which would focus on alleged Indonesian crimes. It is now clear that the serious crimes committed in East Timor will not be judged by an independent international court; reconciliation with Indonesia and international politics have prevailed over justice.

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5 The Special Court for Sierra Leone

The Special Court for Sierra Leone is a hybrid, national/international tribunal which has been more successful in its fight against impunity than the Timor-Leste Special Panels. These different bodies have similarities: they are both hybrid courts involving both national and international components and they are both composed of international and national judges. While the Timor-Leste Special Panels operate within the domestic judicial system of that country, the Sierra Leone Court is an autonomous judiciary body separate from the national court system of Sierra Leone. The Timor-Leste Panels and the Sierra Leone Court are both ‘localized’; they are positioned in the country where the crimes were committed. Whatever their legal and judiciary similarities, the differences between the two countries, their history, the political climate in which these bodies were created and the surrounding international and national context cannot be compared. The creation and work of the Timor-Leste Panels, initiated by the UN Secretariat, were hampered by the hostility and obstruction of Indonesia, which weakened the political support of both the Timor-Leste authorities and of the United Nations. As to Sierra Leone, its President asked the Security Council to set up an international tribunal; the Statute of the Sierra Leone Court was later accepted by the Sierra Leone government, with support by the UN Security Council, including the political and financial support of the United States and the United Kingdom, two permanent members of the Security Council. The Sierra Leone Special Court was established in April 2002. On completion of the trial of Charles Taylor, with a target date of 2011, the activities of the Court will come to an end. 125

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Sierra Leone: the context Since independence in 1961, Sierra Leone has suffered from corrupt and authoritarian governments, with periodic military coups. In 1991, fighters of the Revolutionary United Front (RUF), led by Foday Sankoh, launched a war from the east of the country near the border with Liberia to overthrow the government.1 Charles Taylor’s Liberia provided arms, troops and a safe haven for the fighters. With the support of the Military Observer Group (ECOMOG) of the Economic Community of West African States (ECOWAS), Sierra Leone’s army tried at first to defend the government, but, the following year, the army itself overthrew the government. From mid-1995 to January 1997, the government employed a private security force, Executive Outcomes, which provided security in Freetown and the surrounding areas.2 Despite the change of power, the RUF continued its attacks. Parliamentary and presidential elections were held in February 1996, and the army relinquished power to the winner, Alhaji Dr. Ahmed Tejan Kabbah. However, the RUF did not participate in the elections and did not recognize the results. The conflict continued. On 30 November 1996, in Abidjan, Ivory Coast, Foday Sankoh and President Kabbah signed a peace agreement which only brought a temporary cessation to active hostilities. In May 1997, President Kabbah was overthrown by the Armed Forces Revolutionary Council (AFRC) led by Johnny Paul Koroma. By March 1998, ECOMOG troops had restored President Kabbah to power with the assistance of another private military company, Sandline International. In June 1998, the Security Council established the UN Observer Mission in Sierra Leone (UNOMSIL). Unarmed UNOMSIL teams, under the protection of ECOMOG, documented reports of ongoing atrocities and human rights abuses committed against civilians. Fighting continued with the rebels gaining control of more than half the country. In January 1999, the RUF launched a massive attack on Freetown, followed by the recapture of the capital by the ECOMOG troops. In July 1999, President Kabbah and Sankoh, recently released from jail, signed the Lomé Agreement.3 Sankoh was granted a pardon and appointed chairman of the Truth and Reconciliation Commission for Sierra Leone (TRCSL). The Agreement also included an amnesty provision for all combatants. The Special Representative of the UN Secretary- General entered a reservation to the Lomé agreement, that the ‘United Nations holds the understanding that the amnesty provisions of the Peace Agreement shall

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not apply to international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law’. The UN Secretary- General recommended the creation of an Inquiry Commission on the atrocities committed during the civil war. On 20 August 1999, by resolution 1260, the Security Council welcomed the signing of the agreement, commended the Government of Sierra Leone for its courageous efforts to achieve peace and also the leadership of the RUF for taking this decisive step towards peace. Human Rights Watch and Amnesty International, however, denounced the amnesty provision in the agreement. HRW wrote to the Secretary- General: ‘Time and time again, the United Nations’ experience has shown that peace accords built on impunity are shaky and do not hold’.4 Foday Sankoh was captured by the Sierra Leone government on 17 May 2000, raising hopes for progress towards peace. However, fighting and atrocities continued in 2000 and 2001. In July 2000, British forces, not under UN control, quelled violence which had erupted the previous spring. In March 2001, the UN Security Council expressed its deep concern at the unequivocal and overwhelming evidence it had received that the Government of Liberia was actively supporting the RUF at all levels. The Council determined that the active support provided by the Government of Liberia for armed rebel groups in neighbouring countries, and in particular its support for the RUF in Sierra Leone, constituted a threat to international peace and security in the region. Acting under Chapter VII of the UN Charter, the Council demanded that the Government of Liberia immediately cease its support for the RUF in Sierra Leone and for other armed rebel groups in the region, expel all RUF members from Liberia, cease all financial and military support to the RUF, cease all direct or indirect import of Sierra Leone diamonds not controlled through the Certificate of Origin regime and take other measures as well.5 The RUF, AFRC, government forces and civilian militias such as the Civilian Defence Forces (CDF) and Taylor’s National Patriotic Front of Liberia used the same terror tactics. They practised amputations on victims irrespective of their age and child abduction, forcing boys to become soldiers and girls to be sex slaves. Boys were often drugged and girls suffered rape.6 From March 1991 to July 1999, the civil war created from one to two million refugees, fifty thousand deaths, five to ten thousand amputated persons, five to ten thousand women and girls raped and ten thousand children forcibly recruited as soldiers.7

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The creation of the court On 12 June 2000, President Kabbah asked the Security Council to set up an international tribunal on crimes against humanity to try Foday Sankoh and others, under a combination of domestic and international law. At the end of July, the United States submitted a draft resolution asking the Security Council to establish a special court which would try senior Sierra Leone nationals who bore the greatest responsibility for the most systematic and egregious criminal violations. The court would combine elements of Sierra Leonean and international law.8 On 14 August 2000, the Security Council adopted resolution 1315 which requested the Secretary- General to negotiate an agreement with the Government of Sierra Leone to create an independent special court. It recommended that its jurisdiction should include notably crimes against humanity, war crimes and other violations of international humanitarian law, as well as crimes under Sierra Leonean law committed within the territory of Sierra Leone. It recommended further that the court should have jurisdiction over persons who bear the greatest responsibility for these crimes, including those leaders who have committed these crimes and have threatened the establishment and implementation of the peace process in Sierra Leone. The resolution emphasized the importance of ensuring the impartiality and credibility of the process, in particular with regard to the judges and the prosecutors. The Secretary- General was requested to submit a report on the implementation of this resolution not later than 30 days following the adoption of the resolution. Under the influence of the United States and the United Kingdom, the mandate of the Court was not restricted to one party to the conflict, but included all sides. The ‘most responsible persons’ would be prosecuted regardless of whether they fought on the side of the ‘angels’ (the government forces) or the ‘demons’ (the rebels).9 Unlike the ICTY and the ICTR, which were established by resolutions of the Security Council and constituted as subsidiary organs of the United Nations, and unlike national courts established by law, the proposed Special Court was established by an Agreement between the United Nations and the Government of Sierra Leone; it was therefore a treaty-based sui generis court of mixed jurisdiction and composition. Its applicable law includes both international and Sierra Leonean law. As a treaty-based organ, the Special Court is not anchored to any existing system, such as the UN internal administrative law or national law of the seat of the Court. However, the United Nations has been involved

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in the creation of the Court and in its work – the UN Secretary- General appoints the Court’s Prosecutor and its Registrar, the latter being a UN staff member – and the United Nations has provided a one-time subsidy to its budget. The UN Secretariat is a member of the Court’s Management Committee. Regarding the financing of the Court, the Secretary- General’s view was that the only realistic solution was financing through assessed contributions of the United Nations. In a letter dated 22 December 2000 from the President of the Security Council to the Secretary- General,10 members of the Council opted for funding through voluntary contributions, thus rejecting implicitly the Secretary- General’s ‘realistic solution’. Should voluntary contributions be insufficient for the Court to implement its mandate, ‘the Secretary- General and the Security Council shall explore alternate means of financing the Special Court’. By a letter of 9 February 2001 to the UN Legal Counsel, the government of Sierra Leone expressed its willingness to accept the Statute and Agreement.11 On 16 January 2002, the United Nations and the government signed an Agreement setting up the Court.12 The Court is to function in accordance with its Statute, an annex to the Agreement forming an integral part of the Agreement. The Ratification Act was enacted in March 2002; the Presidential Assent was given on 29 March. The Special Court Agreement entered into force on 12 April 2002. The statute of the court Jurisdiction The Court has material jurisdiction over four sets of crimes, three international and one domestic: ● ●

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crimes against humanity; serious violations of article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977 (Art. 3); other serious violations of international humanitarian law, including conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities (Art. 4); crimes against specified Sierra Leonean Law: the abuse of girls under the Prevention of Cruelty to Children Act, 1926 (Cap. 31) and offences relating to the wanton destruction of property under the Malicious Damage Act, 1861 (Art. 5).

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The crime of genocide was not included because of the lack of evidence that killing was perpetrated in Sierra Leone ‘against an identified national, ethnic, racial or religious group with an intent to annihilate the group as such’. Grave breaches of the Geneva Conventions of 1948 were also excluded, largely because the conflict was seen as domestic and grave breaches apply only to international conflicts. The inclusion of domestic crimes in the Statute has been attributed to an attempt to legitimize and revitalize the Sierra Leone legal system – perhaps as a diplomatic gesture to Sierra Leone’s legal profession – and to ground the Court in the specific circumstances of the Sierra Leone conflict.13 The provisions concerning individual criminal responsibility are the same as in the Statutes of the ICTY and ICTR, except that individual criminal responsibility for the crimes against Sierra Leonean law will be determined in accordance with the respective laws of Sierra Leone (Art. 6). The Court has no jurisdiction over any person who was under the age of 15 at the time of the alleged commission of the crime (Art. 7). In the disposition of a case against a juvenile offender, a person between the ages of 15 and 18, the Court shall order such programmes as care guidance, community service orders, counselling, foster care, correctional, educational and vocational training programmes, approved schools and, as appropriate, any programmes of disarmament, demobilization and reintegration or programmes of child protection agencies. The Special Court and the national courts of Sierra Leone have concurrent jurisdiction. The Special Court has primacy over the national courts. At any stage of the procedure, the Special Court may formally request a national court to defer to its competence (Art. 8). However, as the Court was not created by the Security Council and thus not endowed with Chapter VII binding obligations, it has no judicial authority or power over courts outside Sierra Leone. An amnesty granted to any person falling within the jurisdiction of the Special Court in respect of the crimes referred to in articles 2 to 4 of the Statute will not be a bar to prosecution (Art. 10). Structure The structure of the Court is the same as that of the international tribunals: the Chambers, the Prosecutor and the Registry (Art. 11), but the national/international nature of the Court is reflected in the composition of the Chambers and in the fact that the international Prosecutor is assisted by a Sierre Leonean deputy.

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The Chambers are composed of not less than eight or more than eleven independent judges, serving as follows: ●

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three judges serve in the Trial Chamber, of whom one is a judge appointed by the government of Sierra Leone, and two appointed by the UN Secretary- General; five judges serve in the Appeals Chamber, of whom two judges are appointed by the government of Sierra Leone and three judges appointed by the Secretary- General; the judges of the Appeals Chamber and the judges of the Trial Chamber, respectively, elect a presiding judge. The presiding judge of the Appeals Chamber is the President of the Court (Art. 12). Justice Renate Winter (Austria) was elected as President on 30 May 2008. Judges should have the same qualifications as those of the ICTY and ICTR. They are independent in the performance of their functions. They are appointed for a four-year period, renewable (Art. 13); The Rules of Procedures and Evidence of the ICTR obtaining at the time of the establishment of the Special Court are applicable mutatis mutandis to the conduct of legal proceedings before this Court (Art. 14); The Prosecutor is responsible for the investigation and prosecution of persons who bear the greatest responsibility for serious violations of international humanitarian law and crimes under Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996. As with the international tribunals, the Prosecutor acts independently as a separate organ of the Special Court. The Prosecutor is appointed by the Secretary- General for a four-year term and is eligible for reappointment. He is assisted by a Sierra Leonean Deputy Prosecutor (Art. 15). Stephen J. Rapp (United States) was appointed as the third Prosecutor in December 2006. The Registry is responsible for the administration and servicing of the Special Court. The Registrar is appointed by the Secretary- General after consultation with the President of the Special Court. He or she is a UN staff member. He or she serves for a three-year term, renewable (Art. 16). Herman von Hebel (Netherlands) is Acting Registrar since March 2007.

Judgments The presumption of innocence of accused persons is affirmed (Art. 17). Judgments are rendered by a majority of the judges of the Trial Chamber or Appeals Chamber; they are delivered in public. They are accompanied

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by a reasoned opinion in writing, to which separate or dissenting opinions may be appended (Art. 18). The Trial Chamber imposes upon a convicted person, other than a juvenile offender, imprisonment for a specified number of years. In determining the terms of imprisonment, the Court will, as appropriate, have recourse to the practice regarding prison sentences in the ICTR and the national courts of Sierra Leone. In addition to imprisonment, the Trial Chamber may order the forfeiture of the property, proceeds and any assets acquired unlawfully or by criminal conduct, and their return to their rightful owner or to the State of Sierra Leone (Art. 19). The role of the Appeals Chamber is similar to that of the international tribunals (Article 20). Provisions for pardon or commutation of sentences are in Art. 23. The working language of the Court is English (Art. 24). Financing and staffing The total cost of operations from the Court’s inception in 2002 to December 2006 was $107,445,067. This amount is less than the budget for a single year of the ICTY or ICTR. Of this amount, approximately $77 million came from voluntary contributions from states. The United Nations, through a subvention grant, has contributed the remaining amount (Government of Canada, 2008). The completion budget for 2007–2009 has been approved by the Management Committee of the Court in an amount of $89,052,100. This covers the Court’s activities for this period and requirements for the liquidation process of all activities related to the Court. In 2007, the number of staff was 422, for both Freetown and The Hague (site of the Taylor trial). By the end of 2009, the Court was employing only 69 staff to implement the Court’s liquidation plan.14

Achievements The caseload of the Tribunal has been lighter than those of the ICTY and ICTR. The reason for this is that it was to exercise jurisdiction on ‘persons who bear the greatest responsibility for serious violations of humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone’ (Art. 1.1 of Statute). This enabled the Court to focus only on 13 accused persons, while the ICTY and ICTR indictments included many accused at lower levels.

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Thirteen indictments were issued by the Prosecutor in 2003. Two of those indictments were subsequently withdrawn in December 2003 due to the death of Foday Sankoh and Sam Bockarie. The indictments were joined in three trials of organized armed factions involving 11 indictees, besides the trial of Charles Taylor (see below). Ten were arrested and arraigned by the Court. Former coup leader Johnny Paul Koroma remains at large. The Case of the Armed Forces Revolutionary Council The Armed Forces Revolutionary Council, or AFRC, was founded by members of the Armed Forces of Sierra Leone who seized power from the elected government via a coup d’état in May 1997. It was then led by Johnny Paul Koroma, who invited the RUF to join AFRC. On 20 June 2007, Trial Chamber II delivered its judgment in Prosecutor vs. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, (Case SCSL-2004-16-T, A). The three accused were found criminally responsible for war crimes, crimes against humanity and other serious violations of International Humanitarian Law; these included rape and outrages on personal dignity, and sexual slavery. The Trial Chamber wrote, alia: ‘Brima, Kamara and Kanu have been found responsible for some of the most heinous, brutal and atrocious crimes ever recorded in human history. Innocent civilians – babies, children, men and women of all ages – were murdered by being shot, hacked to death, burned alive, beaten to death. Women and young girls were gang-raped to death’. The Trial Chamber convicted the accused on 11 out of 14 counts in the indictment and sentenced them to terms of imprisonment of 50, 45 and 50 years, respectively. On 22 February 2008, the Appeals Chamber dismissed the appeals of the convicted and affirmed the sentences. For the first time, a court has pronounced final convictions for the crimes of recruitment and use of child soldiers, for crimes of terrorism in a civil war and for sexual slavery as an outrage against human dignity. Additionally, while declining to enter convictions at the appeals level, the Chamber established that forced marriage is a crime under international law.15 The case of the Civil Defence Forces The Civil Defence Forces, or CDF, composed of traditional hunters, fought against RUF and AFRC at the call of the Sierra Leone government. On 7 August 2007, Trial Chamber II delivered its judgment in Prosecutor vs. Sam Hinga Norman, Moimina Fofana and Allieu Kondewa (Case SCSL- 04-14-T,A), convicting Fofana on four counts and Kondewa

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on five counts of an eight- count indictment, and sentencing them to a total term of imprisonment of six years and eight years respectively. Norman had died on 22 February 2007. Both men were convicted of war crimes involving acts of extreme violence. Witnesses had described barbaric crimes that included mutilations, killing of unarmed men, women and children. The Trial Chamber had reduced their sentences on the grounds that they had fought for a ‘legitimate cause’, that they had engaged in the conflict to secure democracy. On 28 May 2008, the Appeals Chamber rejected that part of the ruling and increased Fofana’s sentence from six to fifteen years, and Kondewa’s sentence from eight to twenty years. The Chamber, by a majority, held that the Trial Chamber had erred in considering political motives or fighting in a ‘just cause’ as mitigating factors in sentencing. A jurist of Human Rights Watch16 said, This decision rightly affirms that there is no excuse for attacking and mutilating civilians regardless of the purpose in fighting. The ruling reinforces the principle that all parties in a conflict must abide by the same rules and be subject to the same punishment. To do less would provide victims with unequal protection under the law depending on who their attackers are. The case of the Revolutionary United Front The Revolutionary United Front, or RUF, led by Foday Sankoh, was founded in 1989 in Libya, and was the initial rebel group fighting against the established government. The trial of the three former leaders of RUF, Issa Sesay, Morris Kallon and Augustine Gbao (Case SCSL- 04-15-T), opened on 5 July 2004. They were indicted for crimes against humanity, violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II and other violations of international humanitarian law, including: terrorizing the civilian population and collective punishments, unlawful killings, sexual and physical violence, use of child soldiers, abductions and forced labour, looting and burning and attacks on UNAMSIL personnel. On 25 February 2009, the former RUF leaders were found guilty by Trial Chamber I of war crimes and crimes against humanity. On 8 April 2009, the Trial Chamber sentenced Sesay to a term of imprisonment of 52 years, Kallon to a term of 40 years and Gbao to a term of 25 years. Upon delivery of these verdicts and sentences the judges of Trial Chamber I completed their service to the Court.

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On 2 October 2009, the Appeals Chamber, by a majority, upheld the convictions of the RUF leaders and their sentences.17 On 31 October 2009, the eight persons convicted by the Court were transferred from the Court’s detention facility in Freetown to Rwanda’s Mpanga prison under an agreement signed by the Rwandan government and Court in March 2009. The reason was that no facility in Sierra Leone meets the international standards for treatment of prisoners which are required for persons convicted by international tribunals.18 The RUF trial was the last of three Special Court trials held in Freetown. The trial of former President Charles Taylor is ongoing in The Hague. The trial of Charles Taylor On 3 March 2003, David M. Crane (United States), the first Prosecutor of the Court, signed a secret indictment and warrant of arrest charging Charles Taylor with crimes against humanity, violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II and other serious violations of International Humanitarian Law. Taylor is the second sitting head of state (President of Liberia), after Milosevic, and the first former African head of state to be indicted by an international criminal tribunal. The indictment accused Taylor of participation in the joint criminal enterprise of the RUF and the AFRC, which was to take any actions necessary to gain and exercise political power and control over Sierra Leone, in particular the diamond mining areas, and to destabilize the government of that country (Case SCSL- 03-I). The 17 counts of the indictment included: terrorizing the civilian population and collective punishments, unlawful killings, sexual and physical violence, use of child soldiers, abductions and forced labour, looting and burning and attacks on UNAMSIL personnel. The disclosure of the arrest warrant and indictment took place in early June 2003 when some West African heads of state, including Taylor, were meeting in Accra to negotiate a peaceful settlement to the Liberian conflict. Taylor dismissed the indictment as politically motivated, and, in the words of the Economist, ‘America, the Court’s biggest donor, was not amused’ by the (American) Prosecutor’s independent initiative, in the midst of ongoing negotiations (6 December 2003). Taylor resigned as head of state of Liberia in August 2003 and went into exile in Nigeria. The arrangement by which Nigeria offered him asylum was brokered by ECOWAS, the African Union, the United Nations and the United States.19

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Claimed immunity as head of state On 23 July 2003, Taylor’s counsel submitted a motion to quash his indictment and to set aside the warrant for his arrest on the grounds that, based on the judgment of the International Court of Justice in the Yerodia case,20 Taylor enjoyed absolute immunity from criminal prosecution because he was a serving head of state at the time he was indicted. He argued that exceptions from diplomatic immunities could only derive from such rules of international law as Security Council resolutions under Chapter VII of the UN Charter. As the Court did not have Chapter VII powers, judicial orders from the Special Court have (only) the quality of judicial orders from a national court. On 31 May 2004, the Appeals Chamber of the Special Court dismissed this motion.21 The Chamber first determined, on the basis of an analysis of its constitutive instruments, that it is an international criminal court established under international law and that the lack of Chapter VII powers does not affect the Special Court jurisdiction over heads of state. After a careful consideration of international jurisprudence, the Chamber said that the principle seemed now established that the sovereign equality of states does not prevent a head of state from being prosecuted before an international criminal tribunal or court. The Appeals Chamber found that Article 6.2 of the Court’s Statute22 is not in conflict with any peremptory norm of general international law and its provisions must be given effect by the Court. ‘We hold that the official position of the Applicant as an incumbent Head of State at the time when these criminal proceedings were initiated against him is not a bar to his prosecution by this Court. The Applicant was and is subject to criminal proceedings before the Special Court for Sierra Leone’.23 For the Chamber, customary international law permits international criminal tribunals to indict serving heads of state. The prosecution cited the example of the International Criminal Court which does not have Chapter VII powers but, under Article 27, denies immunity to heads of state from criminal responsibility.24 Moghalu argues that ‘The decision of the Special Court conferring on itself jurisdiction to indict Charles Taylor while he was a sitting head of state is not in accordance with international law, strictly interpreted’. This decision has created a legal controversy. Moghalu then submits that ‘war crimes justice is political justice’ and that ‘indicting Charles Taylor probably hastened his resignation from office and exile, just as the indictment of Slobovan Milosevic quickened his political defenestration in Serbia and subsequent arrest and trial in The Hague’.25

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Taylor’s arrest and transfer On 11 November 2005, the Security Council decided that the mandate of the UN Mission in Liberia (UNMIL) would include the additional element providing for the apprehension and detention of former President Charles Taylor in the event of his return to Liberia and his transferral or the facilitation of his transfer to Sierra Leone for prosecution before the Special Court for Sierra Leone (Resolution 1638). In March 2006, Ellen Johnson Sirleaf, elected President of Liberia on 11 November 2005, formally requested that Nigeria hand over Taylor for trial at the Special Court. Nigeria was under sustained political pressure, mainly from the United States to arrest Taylor and transfer him to Liberia, a major turnabout for the United States. Taylor tried to escape from Nigeria but was arrested on 29 March. He was transported to Liberia where he was handed over to the UN peacekeeping mission, who flew him to Sierra Leone. Taylor was then notified of the 11 counts of his indictment, reduced from the original 17. He pleaded innocent to all counts. Considering that the continued presence of Taylor in the region was an impediment to stability and a threat to the peace of Liberia and Sierra Leone and to international peace and security in the region, the Special Court and Sierra Leone obtained the agreement of the Netherlands and the International Criminal Court in The Hague for a panel of the Special Court to hold the trial in a courtroom of the ICC. Resolution 1688 of the Security Council endorsed the agreement, all costs incurred being expenses of the Special Court. The trial opened in The Hague on 4 June 2007 but was postponed four times on various grounds: Taylor claimed to be indigent, unable to pay for high defence costs, he fired one lawyer and the Court experienced funding shortages. Taylor then boycotted the opening of the trial. The trial started again on 7 January 2008. To secure convictions, the Prosecutor must link Taylor to the rebel groups in Sierra Leone. He must also prove that the rebel groups committed these crimes in each of the places alleged in the indictment and document the seriousness of the crimes. The Prosecution closed its case on 27 February 2009. On 4 May 2009, the Trial Chamber dismissed a Defence motion for a judgment on acquittal, ruling that there is evidence capable of sustaining a conviction on all 11 counts of the Indictment. The Taylor defence began in mid-2009 and the case may be completed by 2011.

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Other issues Amnesty provided by the Lomé peace agreement The Appeals Chamber decided on 13 March 2004 that the amnesty granted under Article IX of the Lomé Peace Agreement does not bar the prosecution before the Special Court of an accused for international crimes committed before July 1999. The Defence for Morris Kallon and Brima Bazzy Kamara had filed preliminary motions arguing that the government of Sierra Leone was bound to observe the amnesty by this Agreement between the government and the RUF. The Defence submitted that the Court should not assert jurisdiction over crimes committed prior to July 1999 when the amnesty was granted and that it would be an abuse of process to allow the prosecution of any of the alleged crimes predating the Lomé Agreement. The Appeals Chamber found that the Lomé Agreement created rights and obligations that are to be regulated by the domestic laws of Sierra Leone. Consequently, whether it is binding on the government of Sierra Leone or not does not affect the prosecution of an accused in an international tribunal for international crimes. The Chamber held that the general amnesty granted in the 1999 Lomé Agreement was ‘ineffective’ in preventing international courts, such as the Special Court, or foreign courts from prosecuting crimes against humanity and war crimes. The Chamber added that the ‘interpretative declaration appended by the Secretary- General’s representative at the signing of the Lomé Agreement is in accordance with international law and is sufficient indication of the limits of the Amnesty granted by the Agreement’; the UN Secretary- General had instructed his Special Representative in Sierra Leone to append to his signature of the peace agreement an explicit proviso that the amnesty ‘shall not apply to international crimes of genocide, crimes against humanity and other serious violations of international humanitarian law’.26 The Chamber further found that Article 10 of the Court’s Statute is valid, as it is an express statutory limitation on the discretion of the Court to decline jurisdiction on the sole ground that an amnesty has been granted to a defendant. Moreover, the Appeals Chamber concluded that an international tribunal, such as the Special Court, cannot be deprived of jurisdiction to prosecute an offender by the grant of an amnesty. For these reasons, the preliminary motions were dismissed.27

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The practice of child recruitment In re Prosecutor v. Sam Hinga Norman, a Preliminary Motion raised the question as to whether the crime as defined in Article 4(c) of the Statute was recognized as a crime entailing individual criminal responsibility under customary international law at the time of the acts alleged in the indictments against the accused which date back to November 1996. Article 4(c) includes among the ‘serious violations of international law’ giving power to the Court to prosecute persons who have committed such a crime: ‘Conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities’. The Court, in a majority decision rendered on 31 May 2004, dismissed the Preliminary Motion.28 It argued that the protection of children is one of the fundamental guarantees articulated in Additional Protocol II and reflected in the Special Court Statute. As can be verified in numerous reports of various human rights organizations, the practice of child recruitment ‘bears the most atrocious consequences for the children’. Serious violations of fundamental guarantees lead to individual criminal liability. Therefore the recruitment of children was already a crime by the time of the adoption of 1998 Rome Statute for the ICC, which codified and ensured the effective implementation of an existing customary norm relating to child recruitment rather than forming a new one. For the Court majority, a norm need not be expressly stated in an international convention for it to crystallize as a crime under customary international law. The Court majority concluded that child recruitment was criminalized before it was explicitly set out in treaty law and certainly by the time frame relevant to the indictments; the principle of legality and the principle of specificity were both upheld. In his Dissenting Opinion, Justice Robertson was ‘in no doubt that the crime of non-forcible enlistment did not enter international criminal law until the Rome Treaty’.29 Consequently, he ‘would grant a declaration to the effect that the Applicant must not be prosecuted for any offence of enlistment, under 4(c), alleged to have been committed before the end of July 1998’.

The completion strategy The Special Court first presented a Completion Strategy to the Management Committee in 2005. Updated versions were submitted in the following years.

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The AFRC and the CDF cases were completed in 2008. With the completion of the RUF trial judgment in 2009, Trial Chamber I has ceased to exist. With the completion of Taylor’s Trial judgment and his potential appeal judgment in 2011, the activities of the Special Court will then come to an end.30 Residual issues These issues are similar, mutatis mutandis, to those reviewed in Chapter 2, on the International Criminal Tribunal for the Former Yugoslavia. They include the possible trial of Johnny Paul Koroma if arrested, sentencing issues and provisional release of persons serving their sentences, witness protection, archives, outreach after 2009 and a site project. Discussions have taken place with the ICTY and the ICTR to see if there is room for cooperation on some of these issues. The truth and reconciliation commission and the special court The Peace Agreement signed in Lomé on 7 July 1999 between the Government of Sierra Leone and the RUF provided for, inter alia, the establishment of a Truth and Reconciliation Commission (TRC).31 The Report of the Secretary- General on the Establishment of a Special Court for Sierra Leone of 4 October 2000 recognized that relationship and cooperation arrangements would be required between the Prosecutor and the Commission, including the use of the Commission as an alternative to prosecution, and the prosecution of juveniles in particular.32 In February 2000, the Sierra Leone Parliament adopted the Truth and Reconciliation Commission Act 2000. This Act mandated the TRC to compile an impartial historical record of violations of human rights and international humanitarian law related to armed conflict, address impunity, respond to the needs of victims, promote healing and reconciliation and prevent a repetition of abuses.33 To this end, the TRC has engaged in taking statements, public hearings and research and investigations, with the goal of completing a final report with recommendations to the government on institutional reforms intended to address these objectives. The Commission is a mixed body, composed of four Sierra Leonean members while another three members are internationals put forward by the UN High Commissioner for Human Rights. The Commission started work in 2002 and its Final Report was released in October 2004.34 In January 2003, it released an analysis of the first 1,300 statements, which included reports of 200 cases of rape or sexual violence and more than 1,000 killings. Approximately 10 per cent of the reported cases involved child perpetrators. The statements

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identified 3,000 victims who had suffered approximately 4,000 violations, including abduction, amputation, killing, torture, rape and other sexual abuse and looting. By August 2003, it had taken more than 8,000 statements from victims, witnesses and perpetrators. Ex- combatants from all sides generally supported the Commission’s work. Hayner reported that ‘an unprecedented number of perpetrators came forward to the TRC: more than 13 per cent of the 8000 individual statements were directly from perpetrators, and approximately a third of those who appeared in hearings admitted to their own wrongs, often in great detail’. In 2004, the Commission began a reconciliation programme, working with the Inter-Religious Council, a Sierra Leonean NGO. The TRC and the Special Court were established separately as independent bodies and their relationship was not clarified in the TRC Act nor in the Agreement and Statute of the Court, except for the provision in Article 15.5 of the Statute, which prescribes that ‘In the prosecution of juvenile offenders, the Prosecutor shall ensure that the child-rehabilitation programme is not placed at risk and that, where appropriate, resort should be had to alternative truth and reconciliation mechanisms, to the extent of their availability’. Areas of tension between the Special Court and the Commission occurred in the sharing of information and of resources and in the treatment of specific cases. As the Commission commenced its work, the Prosecutor of the Court made clear that he would not use any information that was given or submitted to the TRC in the Court’s criminal investigations. In 2003, the Commission requested access to four persons who were held in the Court’s detention. The Court decided that any meetings with the detainees by representatives of the Commission would have to be tape-recorded and monitored by a Court representative, a condition that the Commission found unacceptable. A further request to hold a public hearing with those detainees who wished to appear was also turned down in two separate opinions by the Court. For the International Center for Transitional Justice,35 the Commission has held a ‘critically important role in the mix of accountability and reconciliation measures that hopefully will move the country forward’. In January 2008, the Sierra Leone National Commission for Social Action was designated by the government to implement the recommendations of the Commission, particularly as regards reparations. However, NGOs criticize the government for the long delay in the implementation of these recommendations, which include not only a reparation programme, but also an official apology to the victims of sexual violence36 (Justice in Perspective, 2007).

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Conclusion The Sierra Leone Special Court assumed the same mantle as that of the Nuremberg Trial, then of the International Criminal Tribunals of the 1990s, that of ensuring that leaders and other perpetrators of crimes should be tried, and, if found guilty, sentenced. In contrast with the international tribunals, the new Court was designed on a different, more economical, model. First, it had a narrowly focused mandate founded on a strategy of prosecutions limited to ‘persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law’, that is, the leaders. Second, justice was to be carried out in the country where the crimes were committed – the Taylor trial being a later exception to this principle. Third, the Court was not composed only of international judges, but of a mix of both Sierra Leonean and international judges, whose jurisdiction included both international and national law. Fourth, the Court’s budget was tightly controlled on the basis of voluntary contributions. Fifth, the Court was not created by the UN Security Council under Chapter VII, but by a bilateral treaty between the UN and the government of Sierra Leone, although the UN has played an important role through its Secretary- General, its Office of Legal Affairs and the loan of UN staff, including the call for an occasional financial subvention. Another innovation was the specific provisions applying to persons between the ages of 15 and 18 at the time of the alleged commission of a crime, with emphasis on rehabilitation, reintegration and education in preference to detention. The Court is a small judicial body, closer to the government and population of the country where crimes were committed. More than 50 per cent of the Court’s staff were from Sierra Leone, including prosecution and legal staff, prison guards and security officers. The primary role of the Court, that of investigating, prosecuting and judging those most responsible for the conflict-related atrocities, is being fulfilled. The surviving leaders of the three groups selected by the Court have been tried and have received stern sentences for their crimes. The Taylor trial is still ongoing at the time of this writing. The Court has issued some significant judgments. It was the first international court to rule that a national amnesty does not apply to the prosecution of international crimes, and is the first to adjudicate the limitations of immunity by a head of state before an international criminal court. The Court was the first to enter convictions for the forcible recruitment and use of child soldiers, for acts of terrorism in a

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non-international armed conflict and for the crime of attacks on UN peacekeepers. The Court also pronounced the first- ever convictions on the charge of sexual slavery and for the crime of forced marriage as a crime against humanity (Special Court for Sierra Leone, 2009). Sierra Leone is also the first country where there was both a Truth and Reconciliation Commission and a criminal Court at the same time. In spite of a few disputes on their relationship, each has played its own role. For Crane,37 the first Prosecutor of the Court, [h]aving a truth commission concurrent to the investigations and indictments of war criminals allows the citizenry to tell their story officially to the commission. The likelihood that citizens will actually testify before the Court was remote. I considered the Truth and Reconciliation Commission a key partner in calming and assuring the citizens of the country that the complete story would be told and that truth and justice would prevail. The Court’s outreach programme is generally considered as a success. It has a head office in Freetown and regional offices throughout the country. With the support of an NGO network, over 2,000 events were held in 2007, including town hall meetings, video screenings and school visits. In a survey of 10,000 people, 91 per cent of the respondents said that the Court was contributing to peace and reconciliation in Sierra Leone.38 A ‘political’ court? There was no ‘victors’ justice’; the groups of indictees included government supporters and rebels. The Special Court has not been faced with, nor has it succumbed to, the same political pressures applied to the ICTY and the ICTR; there was no NATO impunity as forced upon the ICTY, nor impunity for the Kosovo leader Haradinaj, as judged by the same tribunal, nor impunity for the Tutsi-led Rwandan Patriotic Army leaders, as experienced by the ICTR. The creation of the Court was initiated by the Sierra Leone government which supported its activities, in contrast with the constant tensions between the Rwandan government and the ICTR. Western governments, particularly the United States and the United Kingdom, have supported the Court politically and financially, but have not interfered politically in the judiciary activities of the Court. Prosecutor Crane’s initiative to serve the previously sealed indictment and arrest warrant on Charles Taylor during a meeting of African leaders in Accra in June 2003 was an act of independence on

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his part and on the part of the Court, similar to the public indictment of Milosevic by Louise Arbour in May 1999. The subsequent arrest of Charles Taylor was due to a large extent to pressures from the United States on Nigeria and Liberia, but the trial itself is run by the Court without any obvious or direct political interference. Inversely, Crane39 deplored the ‘international indifference’ towards West Africa, which ‘challenges the Special Court politically and financially’: after initial voluntary contributions, ‘the political will to donate to a war crimes tribunal waned’. In this author’s view, this raises serious questions as to the viability of funding a criminal tribunal only through voluntary contributions. The Special Court for Sierra Leone has made strides in the slow and difficult combat against impunity of those most responsible for grave violations of international humanitarian law. In the words of Crane,40 ‘it has shown to the international community that international justice can be fairly, efficiently and effectively delivered to a war-torn part of the world in a way that allows the people to see that the rule of law is more powerful than the rule of the gun’.

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6 The Extraordinary Chambers in the Courts of Cambodia

The first hearing of this Cambodian court, a hybrid national/international tribunal set-up in 2004, was held in Phnom Penh on 17 February 2009. The accused was Kaing Guek Eav, alias ‘Duch’, indicted for crimes against humanity and grave breaches of the Geneva Conventions of 1949, in addition to the offences of homicide and torture under Cambodian criminal law. His crimes, and generally those of the Khmer Rouge regime, caused the deaths of 1.7 million Cambodians – out of a population of 7.3 to 7.9 million in 1975 – in the period from 1975 to 1978, through torture, starvation, diseases and massacres. It took 25 years after the event to create the court, and 30 years to start the trial of one of the Khmer Rouge leaders. The reasons for such an extraordinary delay in judging this genocide, committed by Cambodians against Cambodians, are all political.

Brief historical background The Khmer Rouge took over the country in April 1975 from the Lon Nol government, which was supported by the United States. The new leaders ordered the evacuation of the cities, causing a gigantic exodus of more than 2 million people, with thousands of deaths. Hospitals, schools, factories and monasteries were closed and all individual rights and freedoms abolished. The ‘old society’, the bourgeoisie, the ‘corrupt city dwellers’ and educated people had to be eliminated to leave only a young fanatic class of revolutionaries. Chiefs of cooperatives and soldiers had full powers to punish and kill. Identified members of the condemned groups were subject to deportation, torture, massacres, starvation and uncared-for diseases, leading to more deaths.1 145

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The well-hidden genocide committed by the Khmer Rouge leaders and their indoctrinated followers was a product of ill- conceived, autistic Marxism and Maoism, mixed with feelings of national pride, economic self-sufficiency, rejection of foreign imperialism, hatred of the Vietnamese and a spirit of revolutionary violence. In December 1978, the Vietnamese army intervened, meeting no resistance except from the retreating Khmer Rouge forces, which took refuge in forest sanctuaries along the Thai border. On January 6, 1979, Phnom Penh fell and Saloth Sar, alias Pol Pot, the Khmer Rouge senior leader was deposed. A pro-Vietnamese government was installed in Phnom Penh as the People’s Republic of Kampuchea, and was soon recognized by Vietnam, Laos and the USSR and her allies. Pol Pot retreated into Thailand with the remnants of his Khmer Rouge army and began a guerrilla war against a succession of Cambodian governments lasting over the next 17 years. After a series of internal power struggles in the 1990s, he finally lost control of the Khmer Rouge. Pol Pot was tried on 23 July 1997 in Anlong Veng in the north of Cambodia by a small Khmer Rouge group and condemned to life imprisonment. In an interview with an American journalist on 15 October 1997, Pol Pot said that he had no regrets; his conscience was clear. In April 1998, 73-year- old Pol Pot died of an apparent heart attack following his arrest by his own group, before he could be brought to trial by a national or an international tribunal for the events of 1975 to 1979. 2 The United States, China and Thailand – all enemies of Vietnam – continued to support and send arms to the Khmer Rouge. The United States was still grieving from its defeat in the Vietnam war, China was opposed to the Soviet-supported Vietnam, both China, Thailand and other countries in Asia feared the political and military expansion of Vietnam. The Khmer Rouge continued to represent Kampuchea in the United Nations, the Vietnamese intervention being condemned as ‘aggression’. In 1991, the Paris Conference on Cambodia adopted the ‘Agreements on a Comprehensive Political Settlement of the Cambodia Conflict’, whose signatories invited the Security Council to create the United Nations Transitional Authority in Cambodia (UNTAC). UNTAC3 was to deal with the four competing factions of Cambodia, including the genocidal Khmer Rouge Party of Democratic Kampuchea. In spite of Khmer Rouge harassment, refusal to disarm and refusal to participate in the UN- organized elections, these elections were held in May 1993 with a high voter participation. This was the beginning of the final loss of power and influence of the Khmer Rouge, which accelerated with

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defections from the Pol Pot core group, and the death of Pol Pot himself in April 1998. The Cambodian government is headed by Hun Sen, Prime Minister since 1985. A former member of the Communist Party and of the Khmer Rouge, Hun Sen fled to Vietnam to join troops opposed to the Khmer Rouge regime. He returned to Cambodia in 1979 as Minister of Foreign Affairs and became Prime Minister in 1985. He refused to cede power in 1993 when the Funcinpec party, headed by Prince Norodom Ranariddh, won the election which led to a coalition government, before he ousted Prince Ranariddh in 1997. Hun Sen’s Cambodian People’s Party won the general elections of 1998 and 2003.

Creation of the courts In a letter dated 21 June 19974 addressed to the UN Secretary- General, Prince Norodom Ranariddh, Cambodia’s First Prime Minister and Hun Sen, Second Prime Minister, asked for the assistance of the UN and the international community in bringing to justice those persons responsible for the genocide and crimes against humanity during the rule of the Khmer Rouge from 1975 to 1979.5 In September 1996, King Norodom Sihanouk conferred pardon on Ieng Sary, at the request of the two Prime Ministers. Ieng Sary, the former Deputy Prime Minister and Minister of Foreign Affairs of Democratic Kampuchea, asserted that he was not involved in the genocide. He said: ‘I have no regrets, because this was not my responsibility’.6 On 12 December 1997, the UN General Assembly endorsed the comments of the UN Special Representative of the Secretary- General for human rights in Cambodia that the most serious human rights violations in Cambodia in recent history had been committed by the Khmer Rouge and that their crimes, including the taking and killing of hostages, continued to the present.7 It noted with concern that no Khmer Rouge leader had been brought to account for his crimes. It requested the Secretary- General to examine the request by the Cambodian authorities for assistance in responding to past serious violations of Cambodian and international law, including the possibility of the appointment, by the Secretary- General, of a group of experts to evaluate the existing evidence and propose further measures as a means of bringing about national reconciliation, strengthening democracy and addressing the issue of individual accountability. On 25 December 1998, two senior Khmer Rouge leaders, Khieu Samphan, former head of state of the Khmer Rouge, and Nuon Chea,

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main ideologist and the person responsible for security, surrendered to the Hun Sen government. They said they were ‘very sorry’ not only for the human lives lost during the war, but also for ‘the loss of animal lives’. They rejected any personal responsibility.8 Hun Sen said that they should be welcomed ‘with bouquets of flowers, not with prisons and handcuffs’. A trial would only open old wounds and lead to possible instability: ‘We should dig a hole and bury the past and look ahead to the 21st century with a clean slate’.9 In 1998, the UN Secretary- General appointed an expert group with the following mandate: (1) to evaluate the existing evidence with a view to determining the nature of the crimes committed by Khmer Rouge leaders in the years 1975–1979; (2) to assess the feasibility of their apprehension; and (3) to explore legal options for bringing them to justice before an international or national jurisdiction. The group submitted its report to the Secretary- General on 22 February 1999.10 The Group of Experts considered that the crimes committed by Khmer Rouge leaders from 1975 to 1979 included crimes against humanity, genocide, war crimes, forced labour, torture and crimes against internationally protected persons, as well as crimes under Cambodian law. It recommended that trials be confined to ‘those persons most responsible for the most serious violations of human rights in Cambodia ... includ[ing] senior leaders with responsibility over the abuses as well as those at lower levels who are directly implicated in the most serious atrocities’. The Group also recommended that the only suitable option was to create an ad hoc international tribunal, controlled and administered by the United Nations. It noted the prevalence of corruption and political influence over the judiciary, and concluded that Cambodia’s system fell short of international standards of criminal justice required by the 1966 International Covenant on Civil and Political Rights (para. 129). Cambodia rejected this option. According to a UN plan issued in August 1999, a joint tribunal would have a majority of international judges, either five judges, two of them Cambodians, or seven judges, three of them Cambodians. The UN Secretary- General would select an independent prosecutor and the international judges. The UN had thus abandoned the earlier proposal of a fully international tribunal, such as the International Criminal Tribunals for the Former Yugoslavia and for Rwanda. In October, Hun Sen endorsed a U.S. initiative reversing the proportions of Cambodian and international judges: three Cambodian judges and two UNappointed judges. At least one of the international judges would have to agree with any verdict passed by the tribunal.

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In January 2001, the Cambodian General Assembly approved the creation of the tribunal. In another concession to Hun Sen, the General Assembly specified that only ‘those persons who are most responsible’ could face the tribunal. On 10 August 2001, King Norodom Sihanouk promulgated the law creating the special joint court, a Cambodian court with an international character. The Cambodian government and the UN would still have to agree to the terms of a memorandum of understanding. However, the UN secretariat found that the law had serious shortcomings and, following long and fruitless negotiations with the Cambodian government, in February 2002 the UN SecretaryGeneral concluded that he was no longer in a position to continue these negotiations. On 18 December 2002, the UN General Assembly11 requested the Secretary- General to resume negotiations, without delay, to conclude an agreement with the government of Cambodia, based on previous negotiations on the establishment of the Extraordinary Chambers in the Courts of Cambodia for the prosecution of crimes committed during the period of Democratic Kampuchea, recommending that the Chambers should have personal jurisdiction over the senior leaders of Democratic Kampuchea and those who were most responsible for those crimes. In his report of 31 March 2003 to the General Assembly,12 the Secretary- General recalled the terms of General Assembly Resolution No. 57/225, also adopted on 18 December 2002, on the ‘Situation of human rights in Cambodia’, which (in part) noted ‘with concern the continued problems related to the rule of law and the functioning of the judiciary resulting from, inter alia, corruption and interference by the executive with the independence of the judiciary’ (para. 13). He also recalled his experience in the previous negotiations when the government of Cambodia had ‘exhibited a lack of urgency, together with an absence of the active and positive commitment to the process that would be essential when it came to implementing any agreement and to establishing the Extraordinary Chambers, making them operational and ensuring their sustained operation’ (para. 14). In submitting the ‘Draft Agreement between the United Nations and the Royal Government of Cambodia concerning the prosecution under Cambodian Law of crimes committed during the period of Democratic Kampuchea’ to the General Assembly dated 17 March 2003, the Secretary- General still said that he would have very much preferred that the Agreement provided for both the Extraordinary Chambers to be composed of a majority of international judges (para. 29).

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By 28 March 2003, the Cambodian Cabinet had already approved the Draft Agreement. On 13 May 2003, the General Assembly approved by consensus the Draft Agreement, and also decided that the expenses of the Extraordinary Chambers to be defrayed by the UN would be borne by voluntary contributions, not by the UN regular budget.13 The sequence of Cambodia Laws and Agreement is listed in Presentation 6.1. Presentation 6.1 Laws and the agreement on the establishment of extraordinary chambers in the courts of Cambodia 10 August 2001: Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Cambodia (Kram NS/RKM/0801/12); 6 June 2003: Agreement between the United Nations and the Royal Government of Cambodia concerning the prosecution under Cambodian Law of crimes committed during the period of Democratic Kampuchea, Annex to A/RES/57/228B, 13 May 2003; 19 October 2004: Law approving the Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea (Kram NS/ RKM/1004/004); 27 October 2004: Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, with inclusion of amendments (Kram NS/ RKM/1004/006). 29 April 2005: The Agreement between the United Nations and the Government of Cambodia entered into force. Source: United Nations Resolutions and Cambodia’s Official Constitutive Documents, in ‘Resources on the Extraordinary Chambers in the Courts of Cambodia’, www.ridi.org/boyle/oddcldoj/odcldojdocs.htm

The law of 27 October 200414 The Law establishes a hybrid national-international court within the judiciary system of Cambodia with a majority of Cambodian judges, and a subordination of the Secretary- General of the United Nations to the Cambodian judiciary authorities (i.e. the Cambodian government) for the appointments of both judges and prosecutors and for the appointment of the president in both Chambers. Decisions by the Trial Chamber and the Supreme Court Chamber require the agreement of one

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foreign judge in addition to votes of national judges. Non- Cambodian judges and other officials are called ‘foreign’ rather than ‘international’, which might have given them a better standing versus ‘national’ judges. The Director of the Office of Administration is Cambodian. The main, complex, features of the Law are summarized as follows: Extraordinary Chambers are established in the Cambodian court structure to bring to trial senior leaders of the Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian laws related to crimes, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979 (Art. 1 and 2). The site of the Chambers is in Phnom Penh, the nation’s capital. Jurisdiction The Chambers have jurisdiction over crimes both under national and international humanitarian law: ●

●

●

●

crimes of homicide, torture and religious persecution set forth in the 1956 Cambodian Penal Code (Art. 3 new); crimes of genocide as defined in the 1948 United Nations Genocide Convention, crimes against humanity – murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecution on political, racial, and religious grounds; other inhumane acts, grave breaches of the 1949 Geneva Conventions (Art. 4–6); suspects most responsible for the destruction of cultural property during armed conflict pursuant to the 1954 Hague Convention for Protection of Cultural Property in the Event of Armed Conflict (Art. 7); and suspects most responsible for crimes against internationally protected persons pursuant to the Vienna Convention of 1961 on Diplomatic Relations (Art. 8).

Chambers and judges The Trial Chamber is composed of three Cambodian judges, with one as President, and two foreign judges. The Supreme Court Chamber, serving as both appellate chamber and final instance, is composed of four Cambodian judges with one as President, and three foreign judges (Art. 9 new). It decides on appeals made by the accused, the victims or the Co-Prosecutors against a decision of the Trial Chamber (Art. 36 new).

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The Supreme Council of the Magistracy appoints at least seven Cambodian judges and reserve judges, and appoints the President of each Chamber. The Secretary- General of the United Nations submits a list of not less than seven candidates for foreign judges from which the Supreme Council of the Magistracy appoints five sitting judges and at least two reserve judges. All judges ‘shall be independent in the performance of their functions, and shall not accept or seek any instructions from any government or any source’ (Art. 10 new and 11 new). Failing unanimity, a decision by the Trial Chamber requires the affirmative vote of at least four judges, and a decision of the Supreme Court Chamber requires the affirmative vote of at least five judges, thus requiring the agreement of one foreign judge. When there is no unanimity, the decisions of the Chambers are to contain the opinions of the majority and of the minority (Art. 14 new). Co-Prosecutors Indictments are the responsibility of one Cambodian and one foreign prosecutor working together. They have the right to appeal the verdict of the Trial Chamber. The Supreme Council of the Magistracy appoints Cambodian prosecutors and reserve prosecutors. In an appointment process similar to that of the Chamber judges, the Council appoints one foreign prosecutor and one reserve prosecutor from a list of at least two candidates submitted by the Secretary- General of the United Nations. They may be assisted by deputy prosecutors appointed in the same way. The Prosecutors’ independence is also guaranteed by the Law (Art. 16, 17 and 18 new, 19). In the event of a disagreement between the two prosecutors, one or both may request that the difference be settled by a Pre-Trial Chamber of five judges, appointed in the same way as judges of the other Chambers. A decision of the Pre-Trial Chamber, not subject to appeal, requires the affirmative vote of at least four judges. If there is no majority, the ‘prosecution shall proceed’ without specifying how this will happen (Art. 20, 21 and 22 new). Investigations All investigations are the joint responsibility of two investigating judges, one Cambodian and a foreign judge, appointed as heretofore. Disagreements between the two judges are to be settled by the Pre-Trial Chamber as for disagreements between the two prosecutors. The Co-Investigating Judges conduct investigations on the basis of information obtained from any institution, including the government,

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UN organs and NGOs. They have the power to question suspects and victims and to collect evidence; they may issue an order requesting the Co-Prosecutors also to interrogate the witnesses. Suspects are entitled to the assistance of counsel of their own choosing (Art. 23 and 24 new, 25, 26). Individual responsibility Any suspect who planned, instigated, ordered, aided and abetted or committed the crimes referred to above is individually responsible for the crime. The position or rank of any suspect does not relieve such person of criminal responsibility or mitigate punishment. Any criminal acts committed by a subordinate does not relieve the superior of personal criminal responsibility if the superior had effective command and control or authority and control over the subordinate, and the superior knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators (Art. 29). Office of administration This Office, called Registrar in the other international or hybrid courts, supervises the staff of the judges and prosecutors, and has, again, a Cambodian Director and a foreign Deputy Director. The Cambodian Director is responsible for the management of the Office of Administration, except in matters subject to UN rules and procedures. The foreign Deputy Director is appointed by the Secretary- General of the United Nations and ‘assigned’ by the Government of Cambodia. He is responsible for the recruitment and administration of all international staff, and he administers the resources provided through the UN Trust Fund (Art. 31 new). Trial proceedings The Chambers of the trial court ensure that trials are fair and expeditious and are conducted with full respect for the rights of the accused and the protection of victims and witnesses, in accordance with international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights. The Court will provide for the protection of victims and witnesses. Such protection includes, but is not limited to, the conduct of in camera proceedings and the protection of the victim’s identity (Art. 33 new).

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Trials are public and open to representatives of foreign States, of the Secretary- General of the United Nations, of the media and of national and international NGOs, unless in exceptional circumstances the proceedings are closed for good cause when publicity would prejudice the interests of justice (Art. 34 new). The accused is presumed innocent as long as the court has not given its definitive judgment (Art. 35 new). The Chamber of the Supreme Court decides on appeals made by the accused, the victims or the Co-Prosecutors against a decision of the trial court. Decisions are final on both issues of law and fact, and the case is not returned to the trial court (Art. 36 new). Penalties Penalties are limited to imprisonment. Sentences for crimes as provided in articles 3, 4, 5, 6, 7 and 8 are for prison terms from five years to life imprisonment. In addition to imprisonment, the Trial Chamber may order the confiscation of personal property, money and real property acquired unlawfully or by criminal conduct. The confiscated property is returned to the State. The Cambodian government will not request amnesty or pardon for any person investigated for or convicted of crimes referred to in Articles 3, 4, 5, 6, 7 and 8 of this law (Art. 38, 39, 40 new). Finances The expenses of all Cambodian Chambers’ officials and staff are borne by the Cambodian budget. The expenses of all foreign officials and staff are borne by the United Nations. Additional contributions may be obtained from other voluntary funds (Art. 44 new). Completion The Extraordinary Chambers will automatically dissolve following the definitive conclusion of the proceedings (Art. 47). Victims Rule 12 of the Internal Rules of the Extraordinary Chambers in the Courts of Cambodia (ECCC) of 5 September 2008 (Rev. 2), ‘The Victims Unit’, provides that a Victims Unit will be established in the Office of Administration. Rule 23 of the same Rules, ‘Civil Party Action by Victims’ has given considerable rights to victims. Victims and victims’ associations have the right to participate in ECCC proceedings against suspects by supporting the prosecution. Victims are allowed to seek

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collective and moral reparations. The right to take ‘civil action’ may be exercised by victims of a crime within the jurisdiction of the ECCC, without any distinction based on criteria such as current residence or nationality. To be admissible, the injury must be physical, material or psychological, and the direct consequence of the offence. When admitted as a Civil Party, the victim becomes a party to the criminal proceedings. The Civil Party can no longer be questioned as a witness; he/she may only be questioned as an accused person. The Civil Party may be represented by a national lawyer or a foreign lawyer in collaboration with a national lawyer. A group of Civil Parties may be represented by a common lawyer. Subject to Article 39 of the ECCC Law, the Chambers may award only collective and moral reparations to Civil Parties. These are awarded against, and are borne by, the convicted person. Such awards may be an order to publish the judgment in news or other media at the expense of the convicted person, an order to fund any non-profit activity or service intended for the benefit of victims or other forms of reparation.15 The role of victims at the ECCC has been described as a groundbreaking development, the first time that victims have participated to such an extent in an international or hybrid criminal tribunal.16 It is based on the French model of ‘parties civiles’, who are parties to criminal cases, besides the State Prosecutor. There are costs associated with this development, including the establishment of the Victims’ Unit and the increased length of court proceedings to allow the participation of Civil Parties. The participation of victims has been criticized by lawyers concerned for the rights of the accused and the preservation of the presumption of innocence. In February 2010, the Chief of the Defence Support Section raised a serious concern with respect to the rights of the accused. Each defence team consists of only four lawyers, facing a total of at least forty lawyers representing civil party interests in support of the prosecution, plus about ten lawyers from the Office of the Prosecutors. He rightly said that ‘Such a considerable imbalance in resources can only serve to undermine the equality of arms and, therefore, the fairness of the proceedings’.17 Funding and staffing In August 2001, when the Law on the Establishment of the ECCC was promulgated, and the Agreement between the UN and Cambodia was ratified, the UN Secretary- General appealed for international assistance,

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as the General Assembly had decided that the expenses of the ECCC would be met by voluntary contributions. The proposed budget for an initial three-year operation was $56.3 million, with two parts: $43 million budget for the UN, and $13.3 million financed by the government’s own resources, direct bilateral contributions and international contributions. Following a re- evaluation, the additional funding requirements for 2005–2009 amount to $44.1 million, consisting of $38.3 million for the United Nations and $5.8 million for the ECCC.18 The major contributing countries are Australia, Germany, France, the United Kingdom and the United States. The European Commission has contributed approximately $1.5 million to support the Cambodian part of the ECCC, to be spent on personnel costs. The approved budget for 2010–2011 amounts to $87.1 million. Staffing for 2009 includes 160 UN staff and 321 Cambodian staff.19

A slow process The first Law on the Establishment of the Chambers was adopted by Cambodia on 10 August 2001. The Agreement between Cambodia and the United Nations was adopted on 6 June 2003, but the Law approving the Agreement was only adopted on 19 October 2004, and the Law on the Amendments to the Law on the Establishment of the Chambers, on 27 October 2004. The Agreement between the UN and Cambodia entered into force on 29 April 2005, following a Pledging Conference in New York on 28 March. In March 2006, the Secretary- General of the UN nominated international judges and other senior officials of the Extraordinary Chambers to prosecute Khmer Rouge crimes in Cambodia. On 7 May 2006, the King of Cambodia appointed judges, co-investigating judges and coprosecutors, both Cambodian and foreign. On 5 July 2006, 17 Cambodian judges and 8 foreign jurists took their oaths. Before the chief monk, the local judges invoked ‘the angels and the spirits of the forest and the souls of the former kings of Cambodia’ to ‘punish us, destroy us, our lives and our property’ if they betrayed their oaths. Nicolas Michel, the UN Under- Secretary- General for Legal Affairs said: ‘The time for justice has finally arrived’ (Berger, 2006). Finally, on 18 July 2007, the Prosecutors communicated their introductory submission to the investigating judges of the Chamber on five suspects to be judged for genocide, war crimes and crimes against humanity. They were suspected of having ‘committed, aided and

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abetted, or borne superior responsibility’ for 25 separate ‘acts of murder, torture, forcible transfer, unlawful detention, forced labour, and religious, political, and ethnic persecutions’. Although their names remained officially confidential before arrest, observers cited: Duch, Nuon Chea, Ieng Sary, Khieu Samphan and Ieng Thirith.20

The death of Ta Mok Chhit Choen, alias Ta Mok, called ‘The Butcher’, was one of Pol Pot’s closest lieutenants and was deemed to have played a central role in implementing the Khmer Rouge execution policies.21 A member of the Central Committee of the Cambodian Communist Party, he became notorious for slave labour, torture and executions. Ta Mok was arrested on 6 March 1999. To the end, Ta Mok remained unrepentant. In a public statement he said: ‘Please inform the world that I have never killed anyone during that period. As the military commander, I had the responsibility to construct the dam, road bridge, gutter and reservoir for irrigation, to plant rice, to breed poultry in the farm’. On 22 February 2002, he was indicted for crimes against humanity. He died in detention on 21 July 2006 at the age of 82.

The first trial Kaing Guek Eav (Case No. 001/18- 07-2007/ECCC-TC), known as Duch, was Director of the S21/Tuol Sleng detention, torture and killing center. At least 15,000 persons, including women and children, were brought to this former high school, where they were tortured into making false confessions of complicity with the CIA or with Vietnam, and in giving names of other ‘accomplices’. They were then executed. Duch is said to have kept detailed notes of his work, which could be used as evidence. Duch converted to Christianity in 1996. He was detained in a Cambodian military prison from May 1999, and, in July 2007, he was the first suspect to be provisionally detained by the Co- Investigating Judges of the ECCC. On 8 August 2008, the ECCC officially indicted Duch for crimes against humanity, grave breaches of the 1949 Geneva Conventions, homicide and torture pursuant to the 1956 Penal Code. His trial opened on 17 February 2009. On 26 and 27 February 2009, a visit was organized by the Co- Investigating Judges to the S-21 center. Duch apologized to his victims, affirming that he had blindly obeyed his superiors’ orders. 22 At the end of his trial, he blamed the Khmer Rouge leaders for the killings and asked for his

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release. Prosecutors sought a 40-year prison sentence. He was sentenced by the Trial Chamber on 26 July 2010 to 35 years in jail. On 16 August 2010, the Co- Prosecutors filed a Notice of Appeal against this judgment, considering that the sentence gave insufficient weight to the gravity of his crimes and his role and willing participation in those crimes. 23

The second trial The second trial (Case File No.002/19- 09-2007/ECCC-PTC) involves the four surviving suspects: Ieng Sary, Ieng Thirith, Nuon Chea and Khieu Samphan, They are all charged with crimes against humanity, grave breaches of the 1949 Geneva Conventions, genocide, homicide and torture and religious persecution. They all denied responsibility for these crimes. Kim Trang, alias Ieng Sary, born either in 1922 or 1925, was the former Deputy Prime Minister and Minister of Foreign Affairs of Democratic Kampuchea, and known as Brother No. 3. He is considered to be the person who carried out Pol Pot’s most atrocious campaigns, notably the massive purges within the Khmer Rouge movement, the execution of expatriates lured into returning to Cambodia and the massacre of intellectuals. After the fall of the regime in 1979, Ieng Sary disappeared with Pol Pot. He was found guilty, in absentia, by the People’s Revolutionary Tribunal and, on 19 July 1979, he was sentenced to death. In August 1996, Deputy Prime Minister Hun Sen granted Ieng Sary amnesty, and King Sihanouk pardoned him by Royal Decree on 14 September 1996. In August 1996, Ieng Sary joined the government of Phnom Penh with 10,000 of his followers. On 12 November 2007, Ieng Sary was arrested, together with his wife, Ieng Thirith, on a warrant issued by the Co-Investigating Judges of the Chamber, charging him with war crimes and crimes against humanity.24 After surrendering in 1996, Ieng Sary denied committing any crimes, blaming everything on his brother-in-law, Pol Pot. ‘Do I have any remorse?’ he himself asked publicly. ‘No, I have no regrets, because this was not my responsibility.’25 Ieng Sary’s health was deteriorating in 2009. Ieng Thirith, born in 1932, was Minister of Foreign Affairs in the Democratic Kampuchea, known as ‘Brother No. 4’, and head of the Red Cross of the country. Her older sister became the wife of Pol Pot.

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Arrested on 12 November 2007, the prosecutors stated that she was believed to have participated in the ‘planning, direction, coordination and ordering widespread purges ... and the unlawful killing of or murder of staff members within the Ministry of Social Affairs’. She allegedly had a sizeable influence on the Khmer Rouge leadership, notably on the massive purges of the movement. The warrant charges her with crimes against humanity. On 23 February 2009, Ieng Thirith told the ECCC that she had had no role in the mass killings, as she had only had humanitarian functions (reconstructing hospitals destroyed before 1975), and warned that those who accused her of murder would be ‘cursed to the seventh level of hell’.26 Nuon Chea (Case No. 002/19- 09-2007/ECCC-PTC), known as Brother No. 2, Pol Pot’s deputy, was finally arrested on 19 September 2007, at age 82, after living quietly in the countryside for many years with his whereabouts known to the Cambodian authorities. He is described as ‘one of the cruellest’ of the Khmer Rouge leaders. He has consistently denied any responsibility for the regime’s mass crimes. He said: ‘I was president of the National Assembly and had nothing to do with the operation of the government’ (Henry, 2007). On 8 February 2008, a survivor accused him of having murdered her family, and of having imprisoned her in ‘inhumane conditions’ when she was seven.27 Khieu Samphan was the former President of Democratic Kampuchea. He represented Kampuchea at the International Conference on Cambodia in Paris, in July and August 1989. He surrendered to the Cambodian government in December 1998, while living in Païlin, in the west of Cambodia where many Khmer Rouge took refuge. On 14 November 2007, at the age of 76, Khieu Samphan was hospitalized, then arrested on 19 November and transferred to the Chamber on the same date. On 30 December 2004, he had recognized in several interviews that there had been a genocide but said that ‘he never conspired with any senior Khmer Rouge leaders to kill the people of Cambodia ... Within the regime, I was only a leader in name’. When he surrendered in 1998, he urged Cambodians to “let bygones be bygones’.28 On 16 August 2010, the Co-Prosecutors requested the indictment of Nuon Chea, Ieng Sary, Khieu Samphan and Ieng Thirith for the crimes of genocide, crimes against humanity, grave breaches of the Geneva Conventions and violations of the 1956 Cambodian Penal Code. The charges are supported by over 2,800 evidentiary documents, including statements from witnesses, charged persons and experts.29 The trials are expected to extend until at least 2011.

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Problems faced by the courts The slow birth of the ECCC was due essentially to the political reluctance of Cambodian leaders, and of governments of other concerned countries, to allow its creation. Once Cambodian leaders decided to ask for UN assistance in creating a tribunal, they went into long negotiations with the organization in order to prevent the creation of an independent international tribunal, and to ensure that a mixed tribunal would be part of the Cambodian system of justice, that is, under the influence of the Cambodian government. Technical problems arose as to the appropriate mix of civil law (Cambodian law inherited from the French colonial administration) and common law, which was also a delaying factor. Once set up, the ECCC promptly faced criticisms concerning its structure, management problems and allegations of corruption. Criticisms and allegations Two independent reports have substantiated these charges and allegations. At the request of the United Nations, Kevin St. Louis, Chief of Administration of the International Criminal Court for the Former Yugoslavia (ICTY) and Robin Vincent, former Acting Deputy Registrar of the ICTY and former Registrar of the Sierra Leone Court conducted an assessment of operations at the UN Branch of the ECCC. Their confidential June 2007 report was not made public, but leaked to the news media.30 For the experts, the divided structure of the court – the dual Cambodian/international set-up of leading posts – ‘serves only to constantly hinder, frequently confuse and certainly frustrate the efforts of a number of staff on both sides of the operations’. They said that they could see no good reason why the court had been set up as such ‘save for possibly a sense that the division was in place to protect the “sovereignty” of the National Staff side’: a correct assumption. They called for merging administrative functions and for stronger judicial and administrative leadership, citing ‘considerable frustration’ among international staff, which they feared had so corroded morale that key staffers would continue to leave. The report cited wide-ranging concerns about witness protection, document management, victim support, oversight of the detention facility and public affairs. The second report, dated 4 June 2007, was commissioned by UNDP in response to hiring concerns raised late in 2006.31 UNDP refused to share the audit results for months; ignoring calls for transparency, the UNDP representative said that such silence was a matter of policy, and

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was necessary to give all parties to the audit the confidence to speak openly in their final report. Finally, the ECCC released the report findings, together with its rebuttals, on 2 October 2007. Among its main findings: ●

● ●

● ● ●

A project board set up in June 2006 was chaired by ECCC, and included UNDP, UNDESA, the European Commission and other donors. Its role was to oversee and monitor the activities of ECCC. The auditors found that chairing the board put ECCC in a conflictof-interest situation. The board had not met between June 2006 and June 2007; Concern was expressed about high salary scales for ECCC staff; Cambodian staff were hired without meeting the minimum job requirements; There was an unjustified excess in staffing level in the 2007 budget; International staff were not involved in staff management process; The auditors were faced with access restrictions to personnel files of 28 staff, four having received high salary increases without justification being given.

The auditors’ recommendations to UNDP were drastic: ‘If the Cambodian side does not agree to the essential measures that are, from UNDP perspective, necessary to ensure the integrity and success of the project, then serious considerations should be given to withdrawing from participation in the project altogether ... [and] taking into account the serious lapses in the recruitment process to- date, all the recruitments of staff made by ECCC to- date should be nullified and a new recruitment exercise launched with clearly established procedures under the close supervision of UNDP ...’ ECCC’s reply was equally blunt. These recommendations (to UNDP Cambodia) were completely out of proportion to the issues raised in the report. These recommendations are unacceptable and non-negotiable to the Cambodian side as to implement them would essentially mean the re-negotiation of the entire basis and character of the ECCC as a national court with international participation and assistance, already agreed in an international treaty between the Royal Government of Cambodia and the United Nations, and approved by the Cambodian National Assembly and the UNGA [General Assembly] respectively – or is tantamount to internationalizing the ECCC.

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The ECCC recalled that there are distinct and agreed roles for both the national and international sides of this ‘Extraordinary Chamber’: all Cambodian staff are appointed by the Royal Government of Cambodia. ECCC had protested against the decision of carrying out this audit, a unilateral UNDP operation, without consultation with the government. ECCC concluded that most of the observations and findings of the audit criticizing the operations of the ECCC Human Resources Management section reveal misunderstandings or minor irregularities.32 The report of the ECCC Special Human Resources Management Review of 26 March 2008 was more positive.33 In conclusion the review was able to show that a robust Human Resource system has been developed to effectively support the judicial process and to minimize the risk of questionable practices occurring in the future. Promoting zero tolerance for non- compliance with the Code of Conduct will further improve the performance and strengthen the positive reputation of the ECCC. Some positive but limited changes in the Human Resources area of the ECCC have taken place. However, there is no legal nor political prospect for changing the dual structure of the courts, a ground for disagreements between national and international officials, and another reason for delays. Corruption charges The two reports did not deal with specific corruption charges. In June 2008, Cambodian staff brought to the UN specific complaints of corruption. These followed a call by the watchdog Open Society Justice Initiative (an international NGO) for an investigation into allegations that ECCC Cambodian staff had to pay kickbacks in exchange for their jobs. A confidential UN report of August 2008 found merits in these complaints and asked the Government to investigate. These charges have been denied by the Government, saying that there is no evidence to back them. Indeed, fearing reprisals, Cambodians working for the Court have resisted reporting corruption to Cambodian officials. On 23 February 2009, an agreement was reached by the UN and the Government involving parallel domestic and international mechanisms to investigate corruption – in the same way as the dual structure of the ECCC created a parallel structure of leadership. This plan has

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been criticized by the Open Society Justice Initiative on the grounds that the plan prohibits Cambodian staff from reporting possible wrongdoing to an independent body of the UN and instead forces them to file complaints with Cambodian ethics monitors who report directly to the Government. By requiring that recommendations for acting on complaints must be agreed to by a joint UN- Cambodian committee, the plan allows either side to block an inquiry. The NGO has recommended that in case of a disagreement in the joint UN- Cambodia committee, the issue should be submitted to an independent body for a binding decision.34 The Cambodian Director of the Office of Administration said on 25 April 2008 that ‘the ECCC has suffered considerable damage, including to the morale of the staff, on this issue over the past eighteen months following certain broad-brush allegations that were raised in late 2006 and early 2007. These included recruitment of unqualified staff, excessive salaries and supposed kickbacks by judges and other officials in return for appointment at the ECCC. The national judges had issued a strong rebuttal to all charges on 8 March 2007’.35 On the kickback allegations, the crux of the Court’s credibility, Hall determined that there was no political will at the Tribunal or in the UN to launch any genuine and thorough investigation: ‘The UN may be reluctant to press this matter, fearing Prime Minister Hun Sen would pull the plug on the tribunal rather than permit an independent and thorough investigation that might implicate individuals within his government’.36 Cambodia’s reluctance to try the Khmer Rouge leaders Cambodian governments have been reluctant to start judicial proceedings against the Khmer Rouge leaders. While the Pol Pot regime fell on 6 January 1979, the two Prime Ministers of Cambodia asked for UN assistance in bringing to justice those responsible for genocide and crimes against humanity only in June 1997. Initial negotiations between the UN and Cambodia on the creation of a court lasted two and a half years and ended without any agreement. At the request of the UN General Assembly (Res.57/228), the Secretary- General resumed negotiations in January 2003 but the Cambodian delegation firmly rejected his proposals. Among those rejected: ●

●

that there should be one prosecutor and one investigative judge, instead of two prosecutors and two investigating judges; that a majority of judges should be international personnel;

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that both the prosecutor and the investigative judge should be international.

The position of the Secretary- General was based on the finding of the General Assembly in its resolution 57/225 that there are continued problems related to the rule of law and the functioning of the judiciary in Cambodia resulting from interference by the executive with the independence of the judiciary. In his reports, the Secretary- General’s Special Representative for human rights in Cambodia has consistently found there to be little respect on the part of Cambodian courts for the most elementary features of the right to a fair trial. Consequently, he was trying to ensure that the impartiality and independence of the future Chambers and the integrity and credibility of their proceedings were fully guaranteed. He failed to obtain these guarantees, as the Chambers are Cambodian Chambers within the Cambodian justice system without effective control by international personnel. The Secretary- General was faced constantly with the lack of urgency and the lack of commitment on the part of the Government.37 Why this long delay in calling the perpetrators of the genocide to justice, why the stalling on the part of Hun Sen? Hun Sen has been a government minister since 1979 and Prime Minister since 1997. His reluctance may be explained in part by the fact that he served the Khmer Rouge during their regime, although not in a leadership role, and he might fear that an independent tribunal would recall this part of his career. Another more important reason is that Cambodian governments tried to incite Khmer Rouge leaders and their followers to rejoin them, by offering pardons and integration in the regular Cambodian army, in order to stop the long Khmer Rouge fighting after 1979; reconciliation and civil peace prevailed over justice and retribution. The formal reason for fighting against the creation of an international tribunal, or of a mixed national/international tribunal with prevailing power to the international personnel, was and still is to ‘protect the sovereignty’ of the country against these ‘foreigners’. Cambodian interference with the chambers Several incidents have shown the opposition or obstruction by Hun Sen’s government to the work of the Chambers. In May 2006, Hun Sen himself attacked human rights groups who called into question Cambodia’s choice of judges to sit in the Chambers. These groups were

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not happy with the choice of Ney Thol, an army general and President of Cambodia’s military court, who has a record of denying the right for lawyers of the accused to call their own witnesses and to cross- examine the prosecution’s witnesses. According to the Hong Kong–based Asian Human Rights Commission, he ‘likened his critics to perverted sexcrazed animals, among other things’. In November 2006, Ky Tech, president of the Cambodian Bar Association (CBA), demanded that foreign lawyers stop participating in the Chambers. He said: ‘We are being violated by foreigners’. The CBA also forbade Cambodian lawyers from attending a training programme planned by the International Bar Association and the ECCC. He threatened that ‘measures’ would be taken against any attendee, and against the IBA’s international participants. An NGO believed that these statements could not have been made without political backing by the Government.38 In January 2009, the Cambodian Human Rights Committee, a coalition of 21 Cambodian human rights organizations, called for the ECCC not to arbitrarily limit itself to five prosecutions. International Co-Prosecutor Robert Petit announced in March 2009 that he wanted to bring more former Khmer Rouge leaders to court, but Co-Prosecutor Chea Leang disagreed, citing a perceived threat to national stability. The latter’s position was supported by a spokesperson for the Cambodian Government. He lashed out at foreign judges in the ECCC, saying that instead of ‘dragging their feet’ over issues like detaining more suspects, they should accelerate the trials of the five suspects in jail.39 In its ‘Consideration of the Pre-Trial Chamber Regarding the Disagreement between the Co-Prosecutors Pursuant to Internal Rule 71’ of 2 September 2009, the Chamber declared that it had not assembled an affirmative vote of at least four judges on a decision, and that the International CoProsecutor will forward the new Introductory Submissions to the CoInvestigative Judges to open judicial investigations.40 Robert Petit announced his resignation on 23 June 2009 for ‘personal and family reasons’; it was effective on 1 September 2009.41 Delaying and obstructing the course of justice was not limited to the Cambodian Government. Other countries also showed covert or open opposition to the trial of Khmer Rouge leaders for their own reasons. Other countries’ opposition to trials Other countries had good, or rather bad, reasons to avoid or prevent the prosecution of Khmer Rouge leaders. Following the deposition of the Khmer Rouge by the Vietnamese army in January 1979, many

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governments, including the United States, Britain, Australia, Singapore and China aided the Khmer Rouge insurgency against the new Sovietbacked Phnom Penh government, ignoring the Khmer Rouge genocide. In September 1979, the United Nations voted to retain Khmer Rouge representation in the General Assembly, where they remained until 1991. The United States – whose intensive bombing of areas with Communist bases from 1969 to 1973 arguably did much to bring Pol Pot to power – ignored China’s continuing support of the Khmer Rouge and the activities of the Thai military, who gave refuge and protection to the Khmer Rouge leaders in the 1980s and 1990s.42 China supported Pol Pot’s regime with the presence of 15,000 advisers in Cambodia, and the provision of tanks, ammunition, patrol vessels and fighter planes.43 Pol Pot’s nationwide purge seems closely modelled on China’s own Cultural Revolution. There are allegations that Chinese advisers worked at the S21/Tuol Sleng prison to train Khmer Rouge arrestsquads and sometimes took part in arrests.44 China gave the Khmer Rouge forces $100 million each year during the 1980s. China strongly opposed prosecuting Khmer Rouge leaders; even though a tribunal would be likely to only try Cambodians, China may have feared that its close ties with the Khmer Rouge would come under scrutiny, and that the tribunal might be a precedent for investigations into atrocities committed in China during the Cultural Revolution. Chinese officials made clear that they would veto any attempt by the UN Security Council to create a tribunal under Chapter VII of the UN Charter. They opposed the efforts of the UN bureaucracy to persuade the Cambodians to adopt structures for the tribunal which would have met ‘international standards’. The United States did not intervene to stop the genocide, mostly because of its failure in Vietnam,45 fears of upsetting China and determination to oppose Soviet influence in the region. In a secret discussion with Thai diplomats held on 26 November 1975, Secretary of State Henry Kissinger said, in part: We are aware that the biggest threat in Southeast Asia at the present time is North Vietnam. Our strategy is to get the Chinese into Laos and Cambodia as a barrier to the Vietnamese. ... You should also tell the Cambodians [the Khmer Rouge regime] that we will be friends with them. They are murderous thugs, but we won’t let that stand in our way. We are prepared to improve relations with them.46 Kissinger also asked his Thai colleagues, ‘How many people did [Ieng Sary] kill? Tens of thousands?’, to which the Thai reply was ‘Nice and

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quietly!!’.47 American aid to guerrillas allied with the Khmer Rouge reached $17 to 32 million per annum during the 1980s.48 However, in 1994, the U.S. Congress passed the Cambodian Genocide Act, which set aside $400,000 to collect data on Khmer Rouge crimes against humanity and genocide and encourage the establishment of a national or international tribunal for the prosecution of perpetrators. Since 1997, the U.S. Congress and both administrations have provided millions of dollars of financial support to the Cambodian NGO, ‘Documentation Center of Cambodia’, for similar purposes. The United States was heavily involved in the initial negotiations to set up the tribunal. In recent years, U.S. support for the Extraordinary Chambers has waned, in view of doubts about the capacity of the Chambers to provide credible justice, a perceived lack of progress of judicial proceedings and allegations of corruption.49 In the Security Council, the United States and the United Kingdom were in favour of a tribunal, China opposed it, while Russia did not take a firm stand. In the UN, the Netherlands, Denmark, Norway, Sweden and Canada supported the UN negotiations with Cambodia for a tribunal. Japan was the strongest supporter of the tribunal. Japan now provides the highest financial contribution to the ECCC. The crucial driving force behind the creation of the tribunal was the UN Secretariat in New York under Kofi Annan’s leadership, together with the Special Representative of the Secretary- General for Human Rights and the offices of the UN Office for Human Rights in Phnom Penh. This was due in part to charges of UN failures to address atrocities in the Former Yugoslavia and to prevent the genocide in Rwanda.50 Eventually, the UN had to make critical compromises to get the Hun Sen government to agree to a tribunal.

Conclusion Finally, in 2010, five Khmer Rouge leaders were being tried by the Extraordinary Chambers. The Pol Pot regime ended in January 1979; it took 31 years to achieve this late, limited accomplishment. It is yet too early to make any firm assessment of the performance of the ECCC. However, the odds are not in its favour. National and international politics have dominated the stage and destroyed attempts to bring fair and prompt justice after the genocide. The trials are coming very late; Pol Pot and Ta Mok have died. The detained suspects are in their seventies and eighties, and some are in poor health. While older Cambodians recall the suffering and deaths

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caused by starvation, overwork and executions, the young generations know nothing or little about that period; they cannot conceive of such brutality, or seem unwilling to learn about it. Perhaps, also, the Cambodians have seen too much and may be too exhausted by history to bear confrontation with the traumas of their past.51 Delays in setting up the Chambers are due mainly to the Cambodian authorities, but also, to a large extent, to the reluctance or determined opposition of governments involved in varying degrees in support or even cooperation with the Khmer Rouge regime, politics and criminal actions. The Chambers are not an international tribunal, as the International Criminal Tribunals for the Former Yugoslavia or Rwanda. They are Cambodian courts, under the believable suspicion that the Government is exercising undue influence over them, as it does generally over the Cambodian judiciary. The Chambers are in name a hybrid national/international court, but, unlike the Sierra Leone Court where a majority of international judges are able to ensure respect for standards of international humanitarian and human rights law and due process, the majority of national judges and the Cambodian prosecutor of the Chambers have a de jure and de facto pre- eminence over international judges and other officials. The dual structure of the Chambers – two Co-Prosecutors, two Co-Investigating Judges – is at best awkward, certainly liable to cause conflicts and delays. The creation of the Chambers with their limited international input was imposed by Hun Sen over a reluctant UN Secretary- General. The Security Council felt, eventually, that a flawed tribunal was still better than no tribunal. The question remains as to whether it was in the interest of justice to give an undeserved international flavour to an essentially national court. For De Bertodano,52 It is clear from the final ‘compromise’ that these disagreements have been resolved almost entirely in line with the position taken by the Cambodian Government. Without this capitulation on the part of the UN, there would have been no agreement, as the Cambodian Government was unwavering in its refusal to countenance a court in which its nationals were not in the majority. Clearly, the Cambodian Chambers are not a model for any future international or hybrid criminal courts in giving undue weight to a

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flawed national judicial system. These courts must ensure that international prosecutors and judges, distant from historical, social and cultural constraints and local political pressures, are able to exercise freely their functions. Unfortunately, the Cambodian Chambers lack this credibility. Any attempt of the international appointees to assert their authority more publicly and explicitly is likely to be strongly opposed by the Government, as recent incidents have shown, and might even cause Hun Sen to stop the proceedings of the Chambers. On the other hand, the beginning of Duch’s trial has raised considerable interest in the international and Cambodian media,53 recalling the genocide and its authors, the suffering of the victims and the need for retribution. It has also raised hopes among Cambodian victims and survivors that the truth will finally come out. The interest of victims and their survivors is to have justice, even if it is delivered by a flawed court. All considered, it is to be hoped that, in spite of long delays and a flawed court, these trials will meet at least some of their aims: to inform Cambodians of their history during the period from 1975 to 1979, to give evidence of the crimes, their causes and motivations, to prosecute publicly the few surviving high-level suspects and to give them a fair and equitable trial.

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7 The Special Tribunal for Lebanon

On 14 February 2005, former Prime Minister Rafik Hariri of Lebanon and 22 others were killed in a terrorist attack in Beirut. Following resolution 1757 (2007) of the Security Council, a Special Tribunal was established in May 2007. Its mandate is to prosecute persons responsible for this and other attacks in Lebanon. By August 2010, the Tribunal had not named or indicted any suspects. Changing internal (Lebanese) and international political circumstances raise questions as to the viability and effectiveness of this last addition to the other national/international criminal courts created since 1993.

Brief notes on Lebanon Syria has long had a powerful influence over Lebanon. During the Ottoman Empire, what became Lebanon was part of an administrative territory governed from Damascus, the Greater Syria, which also included the areas of present- day Jordan and Israel/Palestine. Following the collapse of the Ottoman Empire, after World War I, France was given a League of Nations mandate over Lebanon and Syria, and created separate colonial administrations for each territory.1 Lebanon’s independence was proclaimed in 1941 and powers transferred to the Lebanese government in 1944. The Lebanese population is divided into different religious communities: Maronite Christians who have dominated the government since independence, Sunni Muslims who have shared in political power and prospered in business, the Druze and Shiite Muslims. Civil war broke out in 1958, and again in 1975. Syrian troops were invited into Lebanon by President Suleiman Franjieh in May 1976. 170

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The Taif Agreement reached among members of the Lebanese Parliament ended the civil war in 1989.2 In part, it stipulated that Syrian forces should withdraw in two years. An amnesty was ratified by the Parliament in 1991 which whitewashed most of the political crimes committed before that date. Elected Prime Minister in 1992, Rafik Hariri first pursued accommodation with Syria’s then-President Hafez al-Assad, who maintained ten of thousands of troops in Lebanon. With the death of Assad in June 2000, who was succeeded by his son, Bashar, accommodation became more difficult. Assad opposed the invasion of Iraq by the U.S.-led coalition, and strengthened ties with Iran. As tensions between Syria and the U.S. increased, Hariri and Walid Jumblat, the Lebanese Druze chieftain and powerful political figure, allied themselves with France and the United States. On 2 September 2004, the UN Security Council adopted resolution 1559 (2004) declaring its support for a free and fair presidential election in Lebanon without foreign interference or influence and called upon all remaining foreign forces, that is, Syrian forces, to withdraw from Lebanon. The resolution was jointly introduced by France and the United States. On 3 September 2004, the Lebanese Parliament amended the Constitution to extend Emile Lahoud’s six-year term of office as President by three years, with the approval of Hariri’s political group, although Hariri himself had opposed it. Lahoud, a Christian, had been general and commander of the Lebanese army from 1989 to 1998. In 1998, the Constitution was first amended under considerable pressure from Syria to allow Lahoud to become President; the Constitution had previously banned military officials from becoming President within two years of their military service. On 4 October 2004, Hariri resigned as Prime Minister. He was murdered on 14 February 2005. The Syrian forces were withdrawn from Lebanon in April 2005 following Hariri’s murder, and as a result of strong domestic and international pressures.

Intervention by the Security Council On 15 February 2005, the Security Council ‘unequivocally’ condemned the terrorist bombing of 14 February 2005 and called on the Lebanese government to bring to justice the perpetrators, organizers and sponsors of this ‘heinous terrorist act’.3 On 7 April, the Council noted with concern the conclusion of a factfinding mission in Lebanon that the Lebanese investigation process

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suffered from serious flaws and had neither the capacity nor the commitment to reach a satisfactory and credible conclusion. With the approval of the Lebanese government, the Council decided to establish an International Independent Investigation Commission based in Lebanon to assist the Lebanese government in their investigation of all aspects of the terrorist act, including to help identify its perpetrators, sponsors, organizers and accomplices. The Council then entrusted the Lebanon government with the task of bringing to justice the perpetrators, organizers and sponsors of the 14 February 2005 terrorist bombing.4 The Report of the Commission, headed by Detlev Mehlis (Germany), was transmitted to the Security Council on 20 October 2005.5 Inter alia, the Commission confirmed what many in Lebanon have long asserted, that senior Syrian intelligence officials had a powerful day-to- day and overall strategic influence on the governance of Lebanon. The apparent growing conflict between Mr. Hariri and senior Syrian officials, including Syrian President Bashar Al-Assad, was a central aspect of the information provided to the Commission ... A meeting in Damascus between Mr. Hariri and President Al-Assad on 26 August 2004 appeared to bring the conflict to a head. At that meeting, which allegedly lasted for 10 to 15 minutes, President Al-Assad informed Mr. Hariri, who was then Prime Minister, that President Al-Assad intended that Lebanon would extend the term in office of Lebanese President Emile Lahoud, which Mr. Hariri opposed. (para. 25) Lebanese witnesses reported that Mr. Hariri had told them that President Al-Assad brusquely informed him of the decision to extend President Lahoud’s term and threatened to ‘break Lebanon over your [Mr. Hariri’s] head (and Walid Jumblat’s)’ if Mr. Hariri did not agree to support this decision. Syrian officials had a different version, describing the meeting as cordial and respectful. The Commission concluded that there was ‘converging evidence pointing to both Lebanese and Syrian involvement in this terrorist act’. For the Commission, the ‘likely motive of the assassination was political’. More precisely, It is the Commission’s conclusion that, after having interviewed witnesses and suspects in the Syrian Arab Republic and establishing that many leads point directly towards the involvement of Syrian security officials with the assassination, it is incumbent upon the

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Syrian Arab Republic to clarify a considerable part of the unresolved questions. While the Syrian authorities, after initial hesitation, have cooperated to a limited degree with the Commission, several interviewees tried to mislead the investigation by giving false or inaccurate statements. The letter addressed to the Commission by the Foreign Minister of the Syrian Arab Republic proved to contain false information’. (paras. 26, 222) Mehlis submitted a second report on 10 December 2005 which confirmed the findings of the first report and added new evidence. The new report identified 19 individuals suspected of being directly involved in the planning and/or execution of the Hariri bombing.6 Mehlis had to leave Lebanon in December 2005 under death threats by terrorist groups. On 13 December 2005, the Prime Minister of Lebanon wrote to the UN Secretary- General requesting ‘the establishment of a tribunal of an international character to try all those who are found responsible for this terrorist crime’ and that further investigation of the terrorist attacks that took place in Lebanon since 1 October 2004 should be carried out by an international Commission.7 On 15 December, the Security Council acknowledged this request, while expressing ‘its extreme concern’ that the ‘Syrian government has yet to provide the Commission with the full and unconditional cooperation demanded in resolution 1636 (2005).8 On 29 March 2006, the Security Council requested the SecretaryGeneral to negotiate an agreement with the government of Lebanon ‘aimed at establishing a tribunal of an international character based on the highest international standards of criminal justice’.9 The 2005 report of the International Independent Investigation Commission was followed by ten more reports. In its eleventh, final report, released on 3 December 2008, the Commission, headed by Daniel Bellemare (Canada), stated in part that those responsible for the attacks were professional and took extensive measures to cover their tracks and hide their identity. It had acquired new information that might allow it to link additional individuals to the network that carried out Hariri’s assassination. The report (and previous ones submitted after Mehlis’ two reports) did not link Syria to the attack, nor did they name any suspects. The Commission then progressively transferred its operations, staff and assets to the The Hague, where the investigation was taken over by the Prosecutor.10 The Tribunal formally opened on 1 March 2009. Bellemare was appointed Prosecutor of the Tribunal.

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For an observer, this was an investigation in ‘slow motion given the huge unprecedented international resources provided to the Commission in addition to also unprecedented international legal framework provided to the Commission by the Security Council binding resolutions under the seventh chapter of the United Nations’.11

Creation of the tribunal The Special Tribunal for Lebanon was established by resolution 1757 of the Security Council adopted on 30 May 2007, which includes two documents: an ‘Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for Lebanon’ as an annex, and the ‘Statute of the Special Tribunal for Lebanon’ as an attachment forming an integral part of the Agreement. The Security Council, ‘reaffirming its determination that this terrorist act and its implications constitute a threat to international peace and security’, and acting under Chapter VII of the Charter of the United Nations, decided that the provisions of the annex and attachment on the establishment of the Tribunal would enter into force on 10 June 2007, or before if the government had notified the UN that the legal requirements for entry into force had been complied with before that date. As of August 2007, it was decided that the seat of the Tribunal would be in The Hague. The agreement Although the Tribunal was originally meant to be an internationalized, hybrid criminal court, such as the Special Court for Sierra Leone or Cambodia’s Extraordinary Chambers, created by a formal agreement between the UN and the host country, the Lebanese government has been unable to ratify the Agreement establishing the Tribunal for internal political reasons. The Tribunal was in fact created by the Security Council by a resolution passed under Chapter VII of the UN Charter. For Milanovic.12 Probably acting out of desire to maintain appearances, however, the Council decided to promulgate into force that same unratified treaty by its resolution, instead of opting for a somewhat clearer solution of a UN court as the Council’s subsidiary organ, as it did in the cases of the tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). Unlike these tribunals, and although also created under Chapter VII of the UN Charter, the Lebanon Tribunal is affiliated with the UN

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through the Agreement and its Statute, but it is not a subsidiary organ of the Council. The Agreement between the UN and Lebanon attached to resolution 1757 (2007) sets the obligations of the UN and of the government of Lebanon in the establishment of the Tribunal. It defines its composition, the appointment of judges, the Prosecutor and Deputy Prosecutor, the Registrar, privileges and immunities, the defence counsel, all points which are parts of the Statute of the Tribunal. It provides that 51 per cent of the Tribunal’s expenses will be borne by voluntary contributions from States, and 49 per cent by the government of Lebanon. The site of the Tribunal shall be outside Lebanon (The Hague was selected). The government of Lebanon ‘shall cooperate’ with all organs of the Tribunal, in particular with the Prosecutor and defence counsel. The Statute The Statute has features common with the Statutes of the other ad hoc international criminal tribunals, and a few which are not. Its jurisdiction is specific: the Special Tribunal has jurisdiction over persons responsible for the attack of 14 February 2005 resulting in the death of former Lebanese Prime Minister Rafik Hariri and in the death or injury of other persons. Its jurisdiction also extends to persons responsible for other attacks that occurred in Lebanon between 1 October 2004 and 12 December 2005, or at any later date decided by the Parties [the UN and Lebanon] and with the consent of the Security Council, if they are connected with the principles of criminal justice and are of a nature and gravity similar to the attack of 14 February 2005. This ‘connection includes but is not limited to a combination of the following elements: criminal intent (motive), the purpose behind the attacks, the nature of the victims targeted, the pattern of the attacks (modus operandi) and the perpetrators’ (Art. 1). The applicable criminal law does not refer to such international crimes as war crimes, crimes against humanity or genocide, as do other international courts, but only to national criminal legislation: the Lebanese Criminal Code and articles 6 and 7 of the Lebanese law of 11 January 1958 on ‘Increasing the penalties for sedition, civil war and interfaith struggle’ (Art. 2). The Statute of the Special Court for Sierra Leone refers to crimes against humanity, serious violations of article 3 of the 1949 Geneva Conventions, other serious violations of international humanitarian law, and crimes against specified Sierra Leonean law. Cambodia’s Extraordinary Chambers also have jurisdiction over crimes both under

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under national and international humanitarian law. The Lebanon Tribunal is the first internationalized criminal court which will try persons who are accused solely of violating domestic, not international, criminal law. Article 3 refers to individual criminal responsibility for those who committed, participated as accomplice, organized or directed others to commit the crimes. Under article 4 on concurrent jurisdiction, the Special Tribunal and Lebanese courts have concurrent jurisdiction, but within its jurisdiction the Tribunal has primacy over the national courts. An amnesty granted to any person for any crime falling within the jurisdiction of the Tribunal is not a bar to prosecution. The organs of the Tribunal are the same as those of the other international tribunals: Chambers, comprising a Pre-Trial Judge, a Trial Chamber and an Appeals Chamber, the Prosecutor and the Registry. A Defence Office13 has been added to the other organs, as for the Special Court for Sierra Leone. The composition of the Chambers shows a predominance of international over national judges, similar to the Special Court for Sierra Leone, but unlike Cambodia’s Extraordinary Chambers; the Pre-Trial judge is international, two out of the three judges of the Trial Chamber are international, and three out of the five judges of the Appeals Chamber are international (Art. 7, 8). The UN Secretary- General plays an important role in the appointment of senior officials of the Tribunal. He appoints the independent Prosecutor in consultation with the government. The Deputy Prosecutor is Lebanese (Art. 11). The Registrar is appointed by the Secretary- General as a UN staff member; there is no Deputy Registrar (Art. 12). The independent Head of the Defence Office is also appointed by the Secretary- General, in consultation with the President of the Tribunal (Art. 13). The usual guarantees of due process are provided to suspects and accused (Art. 15, 16). When the personal interests of the victims are affected, the Pre-Trial Judge or the Chamber may permit their views and concerns to be presented and considered at appropriate stages of the proceedings, in a manner not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial (Art. 17). In order to avoid the long delays experienced by other tribunals, the Special Tribunal ‘shall confine the trial, appellate and review proceedings strictly to an expeditious hearing of the issues raised by the charges, or the grounds for appeal or review, respectively. It shall take

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strict measures to prevent any action that may cause unreasonable delay’ (Art. 21). As a substantive departure from the Statutes of all other tribunals, the Special Tribunal will allow trials in absentia under specific conditions. In case of conviction in absentia, ‘the accused, if he or she had not designated a defence counsel of his or her choosing, shall have the right to be retried in his or her presence before the Special Tribunal, unless he or she accepts the judgment’ (Art. 22). France’s legislation has similar provisions, which may have influenced the government in adopting this provision. The UN Legal Counsel has explained that the reason for introducing trials in absentia was to take more fully into account the (civilist) legal culture of Lebanon. Another possible explanation is political: it would allow the Tribunal to try Syrian suspects in spite of the expressed rejection of cooperation by Syria (Milanovic, 2007: 26). In line with all the other international tribunals, penalties are limited to imprisonment for life or specified number of years, even though the death penalty is part of the Lebanese criminal code.14 Budget and staffing The Tribunal’s budget for 2009 was $51.4 million, and that approved for 2010 is $55.4 million.15 Lebanon provides 49 per cent to this budget, while 51 per cent is to be contributed by States;16 major donors include France and the United States – who initiated the UN investigations and the creation of the Tribunal – Britain, Canada, Germany, Italy, Japan and the Netherlands. Antonio Cassese (Italy), the respected first president of the International Criminal Tribunal for the Former Yugoslavia, was elected president of the Lebanon Tribunal on 25 March 2009. Besides Cassese and a Belgian judge, Daniel Fransen, responsible for pre-trial legal preparations, nine other judges were to be appointed to the Tribunal. According to a statement by the Tribunal, their names will be made public ‘when all the protection measures have been put in place’.17 Daniel Bellemare (Canada), Chief Prosecutor, is assisted by a Deputy Prosecutor, Joyce Tabet (Lebanon) since November 2009. Herman von Hebel (Netherlands) is acting Registrar since March 2010.18 The UN Secretary- General appointed François Roux (France) as the head of the Defence Office.19 The Tribunal has suffered from a high turnover of key officials, raising questions about the Tribunal’s lack of progress, or

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possible internal tensions. The Chief of Investigation, Naguib Kaldas (Australia), resigned in January 2010. He was replaced by Michael Taylor (United Kingdom) in March 2010. 20 Registrar Robin Vincent (United Kingdom) resigned for personal reasons and was replaced by David Tolbert, a U.S. lawyer, in July 2009. In turn, Tolbert resigned as of March 2010.

The first steps The Special Tribunal has been installed in the outskirts of The Hague, protected by an arsenal of security devices. It formally opened in The Hague on 1 March 2009. On 29 April 2009, the Tribunal ordered the release of four Lebanese generals imprisoned in Beirut since August 2005 on suspicion of murder and terrorist acts, for lack of sufficient evidence to indict them.21 They were detained at the request of the first investigator, Detlev Mehlis, who said that the planners of the assassination included high-level Lebanese and Syrian officials, among them members of the inner circle of Syrian President Al-Assad. Al-Assad has denied any Syrian role in the assassination and has said that he would not allow Syrian citizens to appear before the Tribunal. For Marieke Wierda,22 the Tribunal has shown its impartiality by freeing the only suspects in custody, but stirred doubts over the investigation and prospects of the trial. The release was seen as a blow to the anti-Syrian alliance led by the son of Hariri, Saad al-Hariri, in forthcoming parliamentary elections, held on 7 June 2009. Hariri’s opponents greeted the release of the four generals with gunfire and welcomed the four officers. Opponents of Western influence still view the Tribunal with suspicion as part of a broader international intervention in Lebanon that includes foreign aid, UN peacekeepers and efforts to disarm Hezbollah.23 In July 2010, sources close to the Tribunal said that the Prosecutor might issue indictments before the end of 2010. This rumour revealed internal dissensions in the Lebanese government.24 The leader of Lebanon’s Hezbollah, Hassan Nasrallah, said on 22 July 2010 that some undisciplined members were among those (potentially) indicted in Hariri’s murder. Hezbollah is supported by Syria and Iran. On 17 August, Hezbollah officials submitted ‘evidence’ to the Tribunal allegedly linking Israel to the case. On 19 August, Hezbollah called for the abolition of the Tribunal as being ‘unfair and politicized’, an ‘Israeli project’.

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There is fear of new military confrontations if Hezbollah members are indicted by the Tribunal.25

Comments Another ad hoc tribunal? In a climate of ‘tribunal fatigue’ among members of the Security Council, and the forthcoming closure of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda, one may wonder at the creation of yet another ad hoc tribunal, in 2005, by the same members of the Security Council. Insofar as the attack against Hariri and others took place in February 2005, three years after the Rome Treaty entered into force, the case could theoretically have been referred by the Security Council to the International Criminal Court; however, the opposition of the United States to the ICC precluded this option. Also, what is the justification for creating this tribunal, which mainly targets those responsible for the murder of a Lebanese politician and 22 other persons? Other ad hoc tribunals or courts had to investigate and indict suspects allegedly responsible for mass atrocities, and, in the cases of Rwanda and Cambodia, for genocide. A French initiative The origin of the Tribunal for Lebanon can fairly be attributed to France, which has had close links with the Middle East and Lebanon since the Crusades in the twelfth century, the Ottoman Empire. France retained the privileges of capitulations under the monarchies of St Louis (Louis IX) and Louis XIV in the protection of missionaries and Christian communities. A military expedition sent by Emperor Napoleon III in 1860 put a stop to the massacre of Christian Maronites in Lebanon. After World War I, France was given a League of Nations mandate over Lebanon and its neighbour Syria, which in the Ottoman Empire had been a single political unit. In 1920 France divided them into separate colonial administrations, drawing a border that separated mostly Muslim Syria from the kaleidoscope of religious communities in Lebanon, where Maronite Christians were then dominant. After 20 years of the French mandate regime, Lebanon’s independence was proclaimed on 26 November 1941, and most of the powers exercised by France were transferred to the Lebanese government in January 1944.

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The evacuation of French troops was completed in 1946. France, however, maintained its influence after the end of its mandate, in particular with the Maronite Christian majority. Former President Jacques Chirac and Hariri met in the 1980s, during the efforts to free French hostages in Lebanon, and maintained close political, financial and personal relationships. On 2 September 2004, Security Council resolution 1559 demanding the withdrawal of Syria from Lebanon was initiated by France, joined by the United States, as a response to Syria’s role in having Emile Lahoud, Hariri’s rival, reappointed as Lebanon’s President. Hariri was then considered by the Syrians as a traitor for his role in the adoption of this resolution. Hariri’s assassination was, in turn, a political and personal affront for Chirac, who then ensured by diplomatic interventions with the five permanent and the other members of the Security Council that the Tribunal for Lebanon would be created.27 A changing political climate When Mehlis launched his investigation, Syria was considered as a pariah state by Western powers. At that time, the Bush administration, Chirac’s government and Saudi Arabia viewed the investigation commission and the tribunal as a means to apply pressure on Syria’s leaders through their exposure and ‘punishment’. Saudi Arabia’s King Abdullah was close to Hariri, a fellow Sunni.28 The elections of Nicolas Sarkozy in May 2007 and of Barack Obama in November 2008 changed the attitudes of France and of the United States towards Syria, and, in consequence, towards the Tribunal. Bush had imposed sanctions on Syria in 2004, accusing the regime of giving support to the Iraqi rebellion as well as to the Palestinian Hamas and the Lebanese Hezbollah, labelled as ‘terrorist organizations’. In 2005, after Hariri’s assassination, the United States recalled its ambassador in Damascus. Before Obama’s tenure, Senator Arlen Specter of Pennsylvania, a senior Republican who visited Syria in April 2008, suggested that the UN inquiry into Hariri’s killing could be reduced in scope in exchange for greater security and political cooperation from Damascus in key areas of U.S. concern. Specter said he had been told by King Abdullah of Jordan that ‘the item that is most on the mind of President Al-Assad is the action of the international tribunal which could lead to his indictment’. However, then Secretary of State Condoleeza Rice rejected this suggestion. She said: ‘I don’t think that it would be appropriate to suggest

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that we might be willing to limit the scope of this tribunal ... because it might somehow implicate either the regime or the Assad family’.29 France and the United States now consider Syria as a key and essential party in the peace process in the Middle East. Early in 2008, Sarkozy invited Al-Assad to the inauguration summit of the newly created Mediterranean Union together with other heads of state, and also invited him to sit with him in July 2008 to watch the traditional military parade celebrating France’s 14 July anniversary of the French Revolution. The Obama administration named a new ambassador to Syria in February 2010, after a five-year absence, considering that the benefits of a U.S. presence outweighed the costs.30 This strategy tends to isolate Iran in offering international recognition to Syria in exchange for breaking away from Iran, and, hopefully, in promoting a future agreement with Israel. Whether these expectations would probably be obtained only by an agreement between Syria and Israel on the Golan Heights, these new political approaches are likely to weaken the previous political support given by France and the United States to the Special Tribunal. In Lebanon, Prime Minister Saad Hariri remained publicly confident about the trial’s outcome, but had little internal political support to rely on. The ‘reconciliation’ of King Abdullah with Al-Assad at the economic summit in Kuwait in January 2009 showed that Arab countries may lose interest in the Tribunal’s work.31 The tribunal’s narrow mandate Besides the major political obstacles facing the Tribunal, human rights observers have criticized the narrow mandate of the Tribunal. According to statistics established by the Lebanese police in 1991, during the conflicts between 1975 and 1990 there were approximately 145,000 killed, 185,000 wounded, 17,000 missing, 14,000 handicapped, more than 2,000 women murdered after having been raped, and about 800,000 forcibly displaced during the war – a huge number of victims for a population of 3.5 to 4 million inhabitants, to which some 300,000 Palestinian refugees should be added. For the International Center for Transitional Justice,32 ‘the fact that any Tribunal effort deals only with a handful of crimes against high-profile victims underscores the absence of accountability efforts for other kinds of violations ... it may be hard for people to accept that there can be justice in some cases, but not others’.

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Amnesty International wrote that the establishment of the Tribunal was a positive step but it cannot provide a sufficient response ‘to the long pattern of impunity’ in Lebanon. It called on the Lebanese authorities to go beyond the tribunal’s narrow mandate of (only) investigating the killing of Hariri and related attacks.33 Critics In April 2010, the president of the Tribunal, Antonio Cassese, expressed his concern ‘that false claims of leaks and politicization ... are unhelpful in building a constructive and mutually beneficial relationship between the media and the Tribunal’. Gerard Strijards, a Dutch professor of international criminal law at Groningen University and expert on international tribunals, said that ‘The Hariri Tribunal has always been a considerably political tribunal, from the very beginning. It cannot get more politicized than it already has’. He added that the Tribunal had not made any progress whatsoever, and that in his view success was unsustainable ‘because Syria would never cooperate’. 34 In his Annual Report for 2009–2010, President Cassese expressed his confidence that in the next 12 months the Tribunal ‘will efficiently move to judicial action’.35 Interim conclusion On the one hand, the investigation of crimes in Lebanon by an independent international commission, even with a limited focus, was an effort towards fact-finding, even if its last reports still do not go as far as naming suspects. The creation of the Special Tribunal, even with a narrow mandate, but under the predominance of an international Prosecutor and international judges was positive. The Tribunal is the first criminal jurisdiction of an international character to hear prosecutions of crimes of terrorism. On the other hand, the ‘slow motion’ of the Commission and its cautious approach raise questions as to its exposure to political pressures and its independence. The Tribunal itself may be paralyzed by pressures from internal and international politics. More precisely, senior Syrian and Lebanese officials are generally considered as the primary suspects in the Hariri assassination and other attacks against Lebanese leaders opposed to Syrian interference in Lebanese politics. Government officials may claim immunity. The Tribunal will face serious difficulties in obtaining custody of key defendants and evidentiary assistance from Syria.

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In view of these compelling political constraints, and the high security and political risks, there are serious doubts that the Tribunal will be allowed to identify, prosecute and try those responsible for Harari’s assassination and other lethal attacks. On 17 December 2008, Daniel Bellemare, in his capacity as Commissioner, said: ‘Fast food justice is not on the menu. And, let me be clear, there will be no indictment of convenience’.36 But will there be any indictment? Is the Tribunal a ‘cripple from birth’, in the words of James Cockayne?37

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Part III The International Criminal Court

The Statute of the International Criminal Court was adopted in Rome on 17 July 1998 by 120 countries. It entered into force on 1 July 2002 after 60 states had ratified it as required by Article 162 of the Statute. As of October 2010, 114 countries had become State Parties to the Treaty. By that date, the Prosecutor was conducting investigations in four situations referred to the Court, and in one situation assigned by the Presidency of the Court. Four accused were in custody in the Court’s jail in The Hague. As a permanent court, the International Criminal Court has raised many hopes and is the object of close and critical observation of its incipient activities. Chapter 8 reviews the Court’s Statute, mandate and structure, and Chapter 9 deals with the referrals of cases to the Court and investigations.

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8 The International Criminal Court (1): Statute, Mandate and Structure

The Rome Statute, which established the International Criminal Court (ICC), was adopted by a United Nations Diplomatic Conference on 17 July 1998.1 In the words of Kofi Annan, the UN Secretary- General, it was a ‘giant step forward in the march towards universal human rights and the rule of law’. Following the landmark precedent of the Nuremberg and Tokyo Tribunals, and building on the ad hoc International Criminal Tribunals for Yugoslavia and Rwanda – followed by joint national/international courts – the ICC is the world’s first permanent international criminal court. Similar to all these courts, the ICC judges individuals, not states. It has jurisdiction over ‘the most serious crimes of concern to the international community as a whole’ and aims, like the other courts, at ending impunity of the perpetrators of these crimes, and thus should contribute to the prevention of such crimes. This chapter describes the origin of the ICC, summarizes the main elements of its Statute and discusses some of the challenges and issues faced by the Court. The next chapter deals with the referrals to the ICC, and the Court’s investigations.

The origin of the ICC Gustave Moynier, one of the Swiss founders of the International Committee of the Red Cross, felt that the First Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 1864, which had been widely ignored during the 1870 FrancoPrussian war, needed a complement; he proposed in 1872 the establishment of an international criminal court to deter violations of the 187

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Convention, and to bring to justice anyone responsible for such violations. This innovative proposal was not considered by states.2 Between the two world wars, a few scholarly and professional organizations and NGOs initiated and promoted the concept and the creation of an international criminal court. In 1927, during the Paris Congress of the ‘Fédération internationale des ligues des droits de l’homme’ (International Federation of Human Rights Leagues), the Austrian League proposed to promote the creation of a ‘Permanent International Court of Moral Justice’, the action of which would ensure an effective and international protection of human rights within the framework of the League of Nations. This proposal was adopted by the Congress and has been included as one of the main demands of the Federation ever since. On 13 May 1947, French professor H. Donnedieu de Vabres, as France’s representative on the UN General Assembly’s Committee on the Progressive Development of International Law and its Codification, proposed the establishment of an international criminal court.3 A first formal reference to an ‘international penal tribunal’ was made in Article VI of the 1948 Genocide Convention as an alternative to a competent national tribunal: Persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those contracting parties which shall have accepted its jurisdiction. The International Law Commission (ILC) was requested in 1948 to pay attention to the possibility of establishing a Criminal Chamber of the International Court of Justice. Through the deliberate stalling of member states, 50 years elapsed before the Court’s Statute was adopted.4 In 1950, the General Assembly set up a Special Committee to prepare a Draft Statute for an ICC, which produced a text in 1951, revised in 1953. The text was deferred over the next few years on the pretext that the crime of aggression had not been defined, still a current issue. Among the ‘stalling’ states, the USSR and other Communist countries were ideologically hostile to ‘bourgeois’ international justice. The issue was only raised again in 1989, at the end of the Cold War, by Trinidad and Tobago in a Special Session of the General Assembly, proposing the creation of a specialized ICC for drug-related offences. As requested by the General Assembly in 1990, 1992 and 1993, the ILC prepared a Draft Statute in 1993, revised in 1994.

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To deal with defined situations in specific countries, the UN Security Council created the International Criminal Tribunals for the Former Yugoslavia and for Rwanda respectively in 1993 and 1994. In December 1995, the General Assembly established a Preparatory Committee, open to all member states of the UN and UN agencies (Res. 50/46). The Committee was not only to discuss issues but also to draft texts, with a view to preparing a widely acceptable consolidated text of a convention for an ICC as a next step towards consideration by a conference of plenipotentiaries. The Committee met during March, April and August 1996, February, August and December 1997 and March and April 1998. In December 1997, the General Assembly decided to convene the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. The Conference was held in Rome from 15 June to 17 July 1998, with the participation of representatives from 160 States, and 33 intergovernmental organizations, when the Statute was finally adopted. One hundred twenty countries voted in favour, seven against and twenty- one abstaining. The Statute entered into force on 1 July 2002 after 60 countries had ratified it, as required by Article 162 of the Statute. The first Assembly of States Parties elected the first 18 judges in February 2003, the first Prosecutor was elected in April 2003 and the first Registrar in June 2003. By October 2010, 114 States had ratified the Statute, thus becoming States Parties to the Treaty.

The main elements of the Rome statute5 The Court is an independent permanent institution with the power to exercise jurisdiction over persons for the most serious crimes of international concern. It is complementary to national criminal jurisdictions (Art. 1). The Court is not part of the UN, unlike the International Court of Justice (ICJ) which is a principal organ of the UN, nor is it a subsidiary organ of the Security Council, as are the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR). However, the new Court has been brought into relationship with the UN through an agreement (Art. 2). There is a direct link between the ICC and the UN Security Council as shown below. Its seat is in The Hague, which is already the seat of the ICJ and of the ICTY (Art. 3). Established by treaty, and not by a decision of the Security Council as were the ICTY and ICTR, its Statute is not binding on non-ratifying states.

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The ICC is composed of the following organs: the Presidency, an Appeals Division, a Trial Division and a Pre-Trial Division, the Office of the Prosecutor and the Registry (Art. 34). Its 18 judges are elected by secret ballot by the Assembly of States Parties for non-renewable terms of nine years. The President and the First and Second Vice-Presidents, constituting the Presidency, are elected by an absolute majority of the judges for a term of three years. They are eligible for re- election once. The Presidency is responsible for the administration of the Court, with the exception of the Office of the Prosecutor (Art. 38). The Office of the Prosecutor acts independently as a separate organ of the Court. It is responsible for receiving referrals and any substantiated information on crimes, for examining them and for conducting investigations and prosecutions before the Court. The Office is headed by the Prosecutor, assisted by one or more Deputy Prosecutors. The Registry is responsible for the non-judicial aspects of the administration and servicing of the Court, without prejudice to the functions and powers of the Prosecutor. It is headed by the Registrar, as principal administrative officer of the Court. He exercises his/her functions under the authority of the President of the Court. He is assisted by a Deputy Registrar (Art. 43). The Assembly of States Parties is the governing body of the Court. Each State Party has one representative to the Assembly who may be accompanied by alternates and advisers. The ICC’s jurisdiction is limited to four crimes: genocide, crimes against humanity, war crimes and the crime of aggression (Art. 5, 6, 7, 8); on the crime of aggression, see below under Challenges and Issues. The Court has jurisdiction to prosecute individuals when: ●

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Crimes have been committed in the territory of a state which has ratified the Statute (Art. 12.2 (a)); Crimes have been committed by a citizen of a state which has ratified the Statute (Art.12.2 (b)); A state which has not ratified the Statute has made a declaration accepting the Court’s jurisdiction over the crime (Art.12.3).

The Court’s jurisdiction has no retroactive effect. It has jurisdiction only over crimes committed after the Statute entered into force, that is, as from 1 July 2002 and only with regard to a state’s ratification, if it occurred later than 1 July 2002 (Art. 11).

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The Court may initiate prosecution in the following cases, under the conditions stated above: 1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court, subject to the authorization of the Pre-Trial Chamber (Art. 15); 2. States which have ratified the Statute may ask the Prosecutor to investigate a situation where one or more of the crimes have been committed within the jurisdiction of the Court, for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes (Art. 14); 3. The UN Security Council, acting under Chapter VII of the UN Charter, can ask the Prosecutor to investigate a situation where one or more crimes appear to have been committed (Art. 13(b)). In such a case, the Court will have jurisdiction even if the crimes occurred in the territory of a state which has not ratified the Statute or was committed by the national of such a state. 4. Before initiating an investigation, the Prosecutor must determine whether there is a reasonable basis to believe that a crime within the jurisdiction of the Court has been committed or is being committed, admissibility has been determined (gravity and complementarity v. national justice, interests of justice have been considered). Although the Preamble of the Statute refers to an ‘independent’ Court, a number of qualifications limits the powers of the Court and in particular those of its Prosecutor, in contrast with the broad autonomy of the Prosecutor of the ICTY and ICTR: 1. The Court determines whether the case is or is not admissible on the grounds of the primacy of national courts and its limitations (Art. 17). 2. The Court may exercise its jurisdiction only for crimes committed on the territory of a State Party to the Statute, or of a State which has accepted the jurisdiction of the Court, or for crimes committed by a person who is a national of such a State (Art. 12), except 3. The Prosecutor’s investigation has to be authorized by a Pre-Trial Chamber of the Court. The issue of a warrant of arrest of a person, based on the application of the Prosecutor, is also subject to approval by the Pre-Trial Chamber (Art. 57, 58). 4. As another limitation of the Prosecutor’s powers, no investigation or prosecution may be commenced or proceeded with for a period of 12 months after the Security Council, in a resolution adopted

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under Chapter VII of the UN Charter, has requested the Court to that effect – that request may be renewed by the Council under the same conditions (Art. 16). In this respect, such a resolution will require a majority of nine votes, including the five permanent members of the Council: a single veto would annul such a request. The Statute then defines the rights of the accused, the rights of victims and witnesses, reparations to victims, penalties (which exclude the death penalty) and cooperation with states and financing; on the rights of victims, see below under Challenges and Issues. The first session of the Assembly of States Parties approved the Relationship Agreement between the Court and the United Nations, and the Agreement on the Privileges and Immunities of the International Criminal Court. The latter Agreement had 59 ratifications as of April 2009. Characteristics of the statute As noted by ICC Judge H. P. Kaul,6 ‘the principle of complementarity, as provided for in particular in Article 17 of the Rome Statute, is the decisive basis of the entire ICC system. ... Judicial proceedings before the ICC are only permissible if and when states which normally would have jurisdiction are either unwilling or genuinely unable to exercise their jurisdiction. The Rome Statute recognizes the primacy of national prosecutions. It thus reaffirms state sovereignty and especially the sovereign and primary right of states to exercise criminal jurisdiction’. As the other international criminal tribunals, the ICC is dependent on the support of States Parties in ensuring that its arrest warrants are carried out, as it has no police force of its own; it does not have the means to enforce its own decisions. For Luis Moreno- Ocampo, the first ICC Prosecutor, the Rome Statute has created a comprehensive and global criminal justice system.7 The scope of ICC jurisdiction reaches beyond any national or regional boundary. Whereas its predecessors were each limited in scope to a particular territory, the ICC is a worldwide criminal justice system, extending over crimes committed on the territory of more than 100 States Parties, and, further, as the Security Council can refer any situations to the Court, which it did in the case of Sudan, a non-State Party. Substantive law has been codified in one detailed text, incorporating the contents of the Genocide Convention and the Geneva Conventions. It is the first international treaty to explicitly provide for individual crimes responsibility for serious violations of common Article 3 of the

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Geneva Conventions in internal armed conflict. The Statute has given a detailed list of crimes against humanity, without nexus to armed conflict. Based on the jurisprudence by the ad hoc tribunals the definition of sexual violence has been further elaborated, and special emphasis has been put on crimes against children. Different legal and procedural traditions – common law and civil law – have been integrated into a new international model. As for the ICTY and ICTR, the Prosecutor is the driving force for the ICC, in view of its right to initiate investigations proprio motu and in spite of the limits set by the Statute. For Ocampo, the Treaty has created a new autonomous actor on the international scene, a key defining provision for the new legal framework. This allows the Court to act without an additional trigger from States or the Security Council.

Current challenges and issues In its transition from dream to reality, or from theory to practice, the ICC has faced a number of challenges and basic issues. Among them, the need to reach universality, to define aggression, to define the ‘interests of justice’ and to define and implement victims’ rights. The Quest for universality As of October 2010, 114 countries were States Parties to the Rome Statute. The United Nations has 192 member states; all Member States of the United Nations are ipso facto parties to the Statute of the International Court of Justice. The objective of the Court is to increase the number of States Parties with the ultimate aim of achieving universality. A ‘Plan of Action of the Assembly of States Parties [ASP] for achieving universality and full implementation of the Rome Statute of the International Criminal Court’ was adopted by the ASP on 1 December 2006.8 As its ultimate and necessary objective, it affirms that ‘Universality of the Rome Statute of the International Criminal Court is imperative if we are to end impunity for the perpetrators of the most serious crimes of international concern, contribute to the prevention of such crimes, and guarantee lasting respect for and enforcement of international justice’. While progress is feasible, serious obstacles remain. The United States, China, Russia and India are among the major countries who have not joined the ICC; of the five permanent members of the Security Council, only the United Kingdom and France are States Parties of the ICC. The common concerns of those who have not joined the Court are the fear

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of potential breaches of their national sovereignty in the criminal justice area, political bias in prosecutions, and, more precisely, that their political and military leaders may be prosecuted by the ICC in spite of the complementarity principle of giving primacy to national courts. The United States President Clinton announced on 31 December 2000 that the United States was signing the treaty, a signature ‘unsigned’ in May 2002 by the Bush administration. The United States then became actively hostile to the Court and launched a virulent, worldwide campaign aimed at destroying the legitimacy of the Court, on the grounds of protecting U.S. sovereignty and U.S. nationals. One tool was to put pressure on foreign governments to sign bilateral agreements with the U.S. preventing any surrender of U.S. nationals to the ICC.9 However, the United States allowed the adoption of resolution 1593 on 31 March 2005 by the Security Council which referred the case of Darfur to the ICC under Article 13(b) of the Rome Statute, by an abstention, not a veto. The new Obama administration may encourage a degree of cooperation with the ICC, but there still is strong opposition in the U.S. Senate and in American public opinion against joining the Court. In March 2009, a bipartisan task force sponsored by the American Society of International Law (ASIL) urged the United States to formally announce a policy of ‘positive engagement’ with the ICC.10 For the Court, the United States, now an observer to the Court, becoming a State Party would be a major asset, but even a degree of legal, financial and logistic participation in and political support for and cooperation with the Court’s activities would be an important step. China China was one of the seven states who voted against the Statute, although it was very active in its drafting. The reasons for its opposition included a concern about some aspects of the definitions of crimes against humanity and war crimes, and about the crime of aggression, and concern that the ICC could be subject to political bias or interference. Since then, it has had an increasingly positive attitude towards the Court. In 1999, China participated actively in the Preparatory Commission of the ICC to draft the supplementary document to the Statute. Despite its original objection to references in the Statute to the crime of aggression, China was active in the working group tasked with developing a definition of that crime and a procedure for submitting cases to the Prosecutor. China voiced its political support for the ICC

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in UN debates in 1999, 2002 and 2003. In 2005, China stated, during a debate on the Reform of the United Nations, ‘we still hope that the Court will win the confidence of non- Contracting Parties and wide acceptance of the international community through its work’.11 In a 2003 statement, China defined the conditions for its acceding to the Statute: ●

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The operation of the Court should strictly follow such relevant principles as the principle of complementarity. The most important role of the Court is in its role in encouraging all countries to improve their domestic judicial systems and guarantees so that they exercise their jurisdiction over perpetrators of grave crimes; Secondly, the crimes under the jurisdiction of the Court should be limited to the gravest international crimes as provided by the Statute; Thirdly, the activities of the Court should not run counter to the provisions of the UN Charter especially on crimes of aggression; Fourthly, the Court should carry out its duties objectively and impartially, making its best efforts to avoid political bias and preventing the Court from becoming a place for ‘political misuse of litigation’. China has an open attitude and does not exclude a possible accession to the Statute, depending on the actual performance of the Court, an important factor for consideration.12

Behind these positive statements, no doubt Chinese officials may feel politically and judicially vulnerable to possible referrals to the Court in view of alleged violations of human rights and other abuses in Tibet and the Xinjiang Uighur Autonomous Region. Russia Russia, another permanent member of the Security Council, signed the Statute on 13 September 2000. However, the Statute has not yet been submitted for ratification to Russia’s parliamentary chambers, the Duma and the Council of the Federation. According to Professor B. Tuzmukhamedov, ‘there are no unsurmountable legal hurdles in harmonizing the Russian Constitution and laws with the ICC Statute: the question of Russia’s ratification is mostly a question of political will.13 Russia’s attitude is probably affected by charges of grave human rights violations in the Chechnya war, reported to the UN Human Rights Committee, the Council of Europe’s Committee for the Prevention of Torture and by condemnations by the European Court of Human Rights

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of numerous complaints by Russian citizens for violations of human rights in Chechnya. India According to Usha Ramanathan,14 although India had been involved in the drafting of the Statute for several years prior to the Rome Conference of 1998, the Indian government was deeply concerned with provisions relating to inherent jurisdiction, the role of the Security Council, the role of the Prosecutor, internal armed conflicts and the possibility of politically-motivated prosecutions. She said that the government continues to project the ICC as violative of Indian sovereignty. She termed the government decision to enter into a bilateral non-surrender agreement with the United States a ‘shameful act’; the agreement prevents either party from handing over a national to the ICC for prosecution. The European Union and the Council of Europe The European Union has consistently expressed strong political support for the ICC. All EU member states have ratified the Rome Statute. In June 2003, the EU adopted a Common Position on the ICC reiterating its strong commitment to support the effective functioning of the Court and to promote the widest possible ratification of the Rome Statute. In February 2004, the EU adopted an Action Plan on the ICC, in supplement to the Common Position, detailing a wide range of initiatives directed at coordinating EU activities and supporting the universality and integrity of the Rome Statute, and the independence and effective functioning of the ICC. Since 1995, the EU has provided over 20 million euros under the European Initiative for Democracy and Human Rights for projects aimed at supporting the ICC and international justice. Significant funds have been used to promote the ratification of the Rome Statute, particularly by funding global NGO activity through organizations such as the Coalition for the International Criminal Court and No Peace Without Justice and promoting awareness-raising among parliamentarians through Parliamentarians for Global Action.15 In 2008, Turkey, a candidate for EU membership, started the process of ratification of the Rome Statute, one of the conditions set by the EU for membership.16 By resolution 1644 of 27 January 2009, the Parliamentary Assembly of the Council of Europe reiterated its firm commitment to the ICC, and ‘its belief that the universal ratification of the Rome Statute and its effective implementation into domestic systems, as well as close cooperation by

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states and non-States Parties in providing practical and judicial assistance to the ICC, are of key importance for the fight against impunity’. However, the Assembly regretted that eight Council of Europe member states (Armenia, Azerbaijan, Czech Republic,17 Moldova, Monaco, Russia, Turkey and Ukraine), one Council of Europe observer (the United States) and one state with observer status with the Parliamentary Assembly (Israel) had not yet ratified the Rome Statute.

Member states by UN-grouped regions (as of October 2010) African states Thirty- one African states are States Parties to the Rome Statute. They include the Democratic Republic of the Congo, Nigeria, Senegal and South Africa. However, the Peace and Security Council of the African Union objected to the arrest warrant issued by the ICC on 4 March 2009 against Omar al-Bashir, the Sudanese President. Most African leaders have expressed solidarity with al-Bashir, in spite of their country’s status and obligations as State Parties to the Rome Statute (see Chapter 9).18 Arab states Only Djibouti and the Comoros (listed by the Court as African States) and Jordan (listed as an Asian State) are States Parties to the ICC. The North African countries – Algeria, Morocco and Tunisia – and Egypt and Saudi Arabia have not signed the Rome Statute. Asian states Fifteen countries of the Asia region are States Parties to the Rome Statute, including Japan, a strong supporter of the Court, Australia and New Zealand. However, China, India and Pakistan have not joined the Court. Latin American and Caribbean states Trinidad and Tobago was at the origin of the revival of the concept and creation of an international criminal court in 1989. In 2010, 25 countries of that region are States Parties to the Rome Statute, including Argentina, Brazil, Mexico and Venezuela. Latin American countries have a long tradition of promoting international law and justice.

Western Europe and other states: 25 member states Canada has ratified the Rome Statute on 7 July 2000. Israel repudiated its signature in August 2002.

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Eastern Europe: 18 member states One of the main goals of the Coalition for the International Criminal Court – an international NGO – is to promote ratification and implementation of the Rome Statute. For this purpose, it has launched a ‘Universal Ratification Campaign’ by which it addresses individual states, asking individuals and associations in those states to urge their governments to accede to the Rome Statute. Amnesty International and the International Federation for Human Rights (FIDH) also campaign for ratification by priority targeting countries or regions. The crime of aggression The crime of aggression is one of the four crimes on which the Court has jurisdiction. However, in contrast with the other three well- defined crimes – genocide, crimes against humanity and war crimes – the Court’s jurisdiction concerning this crime was made conditional on an agreed definition of the crime and on the conditions under which the Court would exercise this jurisdiction. As reported by Lee, during the Rome Conference the discussions on this crime differed from the discussions on the other three core crimes, as it remained controversial up to the end of the Conference whether the crime should even be included in the Statute.19 One argument for its inclusion was that this crime had been included in the Nuremberg Charter – not necessarily a compelling argument.20 A major problem was the role of the Security Council in the exercise of jurisdiction by the Court concerning this crime. The Draft Statute of the International Law Commission required that before the Court could deal with the crime of aggression, there must be a prior determination by the Security Council ‘that a State has committed the act of aggression which is the subject of the complaint’. The role of the Court would then consist of determining the legal question of whether an individual person from the State in question had committed the crime of aggression. This provision was strongly supported by the five permanent members of the Security Council, determined to retain their decision-making privilege in such highly sensitive political domains, but it was severely criticized by many members of the Non-aligned Movement. Others feared that this provision would be detrimental to the independence of the Court. In the final text of the Statute, article 5.2 prescribes that ‘The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise

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jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations’. The Assembly of States Parties decided to establish a special working group on this provision, open on an equal footing to all Member States of the United Nations or members of specialized agencies or of the International Atomic Energy Agency, ‘for the purpose of elaborating proposals for a provision of aggression in accordance with paragraph 2 of article 5 of the Statute and paragraph 7 of resolution F adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998’.21 The Special Working Group on the Crime of Aggression has held discussions on this issue since 2003. In February 2009, provisions were drafted on the definition of the act of aggression, based on UN General Assembly resolution 3314 (XXIX) of 14 December 1974, with an openended list of acts that would qualify as an act of aggression and wording on the requisite leadership elements to establish individual criminal responsibility for the act. Reviving oppositions during the Rome Conference, there were divergent views in the Special Working Group regarding the possible role of the Security Council prior to the initiation of an investigation by the Prosecutor. Some delegations – mainly representing the views of permanent members of the Security Council – consider that the Prosecutor may only proceed with an investigation in respect of a crime of aggression if the Security Council has previously made a determination that an act of aggression has been committed by a state. Other options under consideration foresee that in the absence of such a determination by the Security Council, the Prosecutor may only proceed with an investigation under set conditions. For Brigitte Chelebian of Justice Without Frontiers, an NGO, the Security Council should not be given ‘legislative powers’ in matters concerning the jurisdiction of the Court concerning the crime of aggression. Many Arab countries’ NGOs insist that the ICC should have the independent and final decision in determining jurisdiction over the crime of aggression as well as the prosecution of criminals.22 On 12 June 2010, the Review Conference held in Kampala adopted a resolution by which it amended the Rome Statute so as to include a definition of the crime of aggression and the conditions under which the Court could exercise jurisdiction with respect to this crime.23 The actual exercise of jurisdiction is subject to the ratification or acceptance of the amendments by 30 States Parties, and to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required

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for the adoption of an amendment to the Statute, that is, a two-thirds majority of States Parties.24 The ‘crime of aggression’ is defined as ‘the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations’. The definition of an ‘act of aggression’ is based on United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, meaning the ‘use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations’; these acts are listed in Article 8 bis 2. On the Court’s exercise of jurisdiction, the Conference agreed that a situation in which an act of aggression appeared to have occurred could be referred to the Court by the Security Council, acting under Chapter VII of the United Nations Charter, irrespective as to whether it involved States Parties or non- States Parties. Alternatively, where the Prosecutor concludes that there is a reasonable basis to proceed with an investigation in respect of the crime of aggression, ‘he or she shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned.’ He may then proceed with an investigation subject to an authorization by the Pre-Trial Division (Art. 15 bis). In this case, the Court would not have jurisdiction in respect to crimes of aggression committed on the territory of nonStates Parties or by their nationals or with regard to States Parties that had declared that they did not accept the Court’s jurisdiction over the crime of aggression. The Security Council can halt an investigation of a crime of aggression at any time through a resolution, renewable every 12 months.25 This dilatory compromise maintains that the Security Council holds primary responsibility for determining whether an act of aggression has occurred, while the Prosecutor’s right to initiate an investigation proprio motu is severely restricted. Several countries – France, Japan, Russia, the United Kingdom and the United States – consider that the power to handle cases of aggression should remain with the Security Council. They believe that having the ICC take total control over the crime could ‘politicise the Court and compromise its effectiveness’. 26 Even if the amendments are approved in 2017, the control by the Security Council makes it unlikely that such jurisdiction will ever be exercised.27

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The ‘interests of justice’ Under article 53.1 of the Rome Statute, The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether: (a) The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed; (b) The case is or would be admissible under article 17;28 and (c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice. If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph (c) above, he or she shall inform the Pre-Trial Chamber. Under Article 53.2 If, upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution because: ... (c) A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime; the Prosecutor shall inform the Pre-Trial Chamber and the State making a referral under Article 14, or the Security Council in a case under article 13, paragraph (b), of his or her conclusion and the reasons for the conclusion. Under Article 53.3: (a) At the request of the State making a referral under article 14 of the Security Council under article 13, paragraph (b), the Pre-Trial Chamber may review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision.

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(b) In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber. This topic raises difficult and basic issues about the balance between justice and peace processes: the relationships between international justice and national/international politics; the role of the ICC versus the UN Security Council; the independence of international justice; and the place, role and limits of justice in the ‘transitional justice’ notion and process.29 In his ‘Policy Paper on the Interests of Justice’ of September 2007,30 the Prosecutor took a pragmatic albeit firm stand on his understanding of this concept. A pragmatic approach: each situation is different, the approach taken will necessarily have to depend on the facts and circumstances of the case or situation – the exercise of the Prosecutor’s discretion is exceptional in its nature – and no such decision has yet been made by the Prosecutor. A firm stand: the need to protect the independence and the discretionary decision-making power of the Prosecutor within the limits of the Statute, including the review by the Pre-Trial Chamber. The ‘interests of justice’ tests need only be considered when positive determinations have been made on both jurisdiction and admissibility. The Policy Paper does not give specific, detailed criteria when considering the gravity of the crime, except to refer to the scale of the crimes, the nature of the crimes, the manner of their commission and their impact. On the interests of the victims, the Prosecutor has specific obligation to take into account these interests before starting an investigation or prosecution, a very complex matter which includes victims’ protection. The personal circumstances of the accused are those listed in Article 53.2(c) of the Statute, that is, the age or infirmity of the accused and his or her role in the crime. The Prosecutor acknowledged the need to integrate different, comprehensive approaches to combat impunity. He or she endorses the complementary role that can be played by domestic prosecutions, truth-seeking, reparation programmes, institutions reform and traditional justice mechanisms in the pursuit of a broader justice. As stated by the UN Secretary- General, ‘Justice, peace and democracy are not mutually exclusive objectives, but rather mutually reinforcing imperatives’.

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In situations where the ICC is involved, comprehensive solutions addressing humanitarian, security, political, developmental and justice elements are necessary. The OTP will work constructively with and respect the mandates of those engaged in other areas but will pursue its own judicial mandate independently. The Statute recognizes a role for the Security Council to defer ICC action where it considers it necessary for the maintenance of international peace and security. However, the broader matter of international peace and security is not the responsibility of the Prosecutor: it falls within the mandate of other institutions. In conclusion, ‘The best guidance on the Office’s approach to these issues can be gathered from the way it has dealt with real situations. The Office will not speculate on abstract scenarios’. The 2009 Regulations of the Office of the Prosecutor provide, under Regulation 31 on ‘Decision not to proceed in the interests of justice’: In acting pursuant to article 53, paragraphs 1 (c) and 2 (c), the Prosecutor shall base his or her decision on an internal report on the interests of justice submitted to ExCom [the Executive Committee, composed of the Prosecutor and the Heads of the three Divisions of the Office] for consideration and approval. If the decision not to proceed is based solely on article 53, paragraph 1 (c) or 2 (c), the Prosecutor shall promptly inform the Pre-Trial Chamber in accordance with Rule [of Procedure and Evidence] 105, paragraphs 4 and 5, and rule 106.31 Victims’ rights The need to provide special protection to victims in order to encourage them to report offences and to give evidence, to preserve evidence and to avoid their revictimization was recognized in the ICC negotiations.32 While the principle of victims’ representation was generally accepted, the implementation of victims’ rights in the Court’s proceedings has raised challenges to Chambers in setting principles and limits to these rights. It has also created controversies. The Preamble of the Rome Statute recalls that ‘during this century [the twentieth century] millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity’. While the primary aim of the ICC is to identify and prosecute the perpetrators of the most serious crimes of concern to the international community as a whole, the Court’s creators also wanted the Court to

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bring justice to victims. They ensured that victims were able to participate before the Court to affirm their rights to justice. They believed that victims who participate in proceedings will feel a sense of recognition and empowerment, whether or not they receive compensation for civil damages and criminal action, which may help them to restore their dignity. The participation and testimonies of victims provide essential information as to the facts and circumstances of the crimes to the Court, contributing to the uncovering of the truth, a basis for the determination of guilt or innocence. The truth also determines the granting of the victims’ right to reparations. Provisions in the Rome Statute The general principle of victims’ rights to be heard by the Court is in Article 68.3 of the Rome Statute: Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representative of the victim where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence. Article 15.3 allows victims to make representations to the Pre-Trial Chamber. Under Article 19.3, victims may submit observations to the Court in the context of a challenge to the jurisdiction of the Court or the admissibility of a case. Article 57.3 (c) provides for the protection and privacy of victims where necessary. Under Article 75.1 and .3, the Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting. ... Before making an order under this article, the Court may invite and shall take into account of representations from or on behalf of ... victims ... The rules concerning victims’ participation are primarily found in the Rules of Procedure and Evidence (RPE). Rule 85 defines victims as

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natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court, and organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes. Under Rule 86, a Chamber, in making any direction or order, and other organs of the Court in performing their functions under the Statute or the Rules, shall take into account the needs of all victims ... in accordance with Article 68, in particular, children, elderly persons, persons with disabilities and victims of sexual or gender violence. Detailed protective measures are in Rule 87, and special measures in Rule 88. In order to present views and concerns, victims should make written application to the Registrar, who transmits the application to the relevant Chamber. The Chamber, on its own initiative or on the application of the Prosecutor or the defence, may reject the application if it considers that the person is not a victim or that the criteria set forth in Article 68.3 are not otherwise fulfilled (Rule 89.1 and .2). A victim is free to choose a legal representative. Where there are a number of victims, the Chamber may request the victims or particular groups of victims, if necessary with the assistance of the Registry, to choose a common legal representative or representatives (Rule 90.1 and .2). A legal representative of a victim is entitled to attend and participate in the proceedings in accordance with the terms of a Chamber’s ruling. This includes participation in hearings unless the Chamber concerned is of the view that the representative’s intervention should be confined to written observations or submissions. The Prosecutor and the defence are allowed to reply to any oral or written observation by the legal representative of the victims (Rule 91). The Court notifies victims concerning the decision of the Prosecutor not to initiate an investigation or not to prosecute pursuant to Article 53. Victims or their representatives are notified of decisions to hold a hearing to confirm charges and other proceedings before the Court (Rule 92). A victim’s request for reparations must be made in writing and filed with the Registrar. The Registrar will take all the necessary measures to give adequate publicity of reparation proceedings before the Court to victims, interested persons and States (Rules 94 and 96). To assist victims, the Court has established the Victims Participation and Reparation Section (VPRS) and the Victims and Witnesses Unit

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(VWU), both within the Registry. The VPRS assists victims in relation to their applications for participation in the proceedings or for reparations, or both. It also assists victims in obtaining legal advice and organizing their legal representation. To identify and reach victims, the VPRS is actively developing relationships with victims’ groups, NGOs and other national and international organizations, particularly in countries where the Court is active. The VWU provides protection and psychological support to witnesses and to victims who appear before the Court. It provides advice, training and assistance to other parts of the Court on how to ensure the safety and well-being of victims and witnesses. Special attention is given to the particular needs of children, the elderly, persons with disabilities and victims of sexual violence or gender-based crimes.

Precedents and decisions33 On 17 January 2006, the Pre-Trial Chamber I (PTC I) granted six applicants the status of victim for purposes of the situation in the Democratic Republic of the Congo. The Chamber found that Article 63.3 was applicable at the investigation stage of a situation, meaning that victims could participate generally in ICC proceedings before any suspect had been identified or apprehended. The Office of the Prosecutor (OTP) objected to this decision and stated that such participation is not envisaged by the Rome Statute and Rules and that allowing a third party to intervene at such an early stage could jeopardize the objective and the integrity of OTP’s work. The Chamber rejected these arguments on the grounds that its decision to permit the victims to participate during the investigation would not adversely impact the proceedings. It noted that ‘the system of participation can only enhance the impartiality of the Prosecutor’s investigation in that it will afford him access to additional evidence’. On 22 September 2006, the same Chamber decided that during the confirmation of charges hearing the only measure available to protect victims was anonymity. However, anonymous victims would not be able to to add any point of fact, evidence or question the witnesses. In the case against Thomas Lubanga Dyilo, 105 victims applied for participation; PTC I granted this right to four victims. The Chamber decided that victims do not need to bring evidence of harm suffered as a result of charges confirmed against Lubanga. Instead, they have to establish a link to the evidence being brought against the accused. The Chamber found that ‘extreme care must be exercised before permitting

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the participation of anonymous victims, particularly in relation to the rights of the accused’. It rejected the submission by the defence that victims appearing before the Court should be treated automatically as witnesses. Controversial issues As noted by Gwendoline Bunse,34 the Court must balance the rights of victims to participate with the accused’s rights to a fair trial, maintaining the presumption of innocence. The participation of victims could disturb the equality of arms between the Prosecution and the Defence. Given the potentially large numbers of victims, unregulated victims’ participation could substantially drain the resources of the Court and threaten the right of accused suspects to be tried without undue delay. This could be prevented by grouping victims, similar to a group action system. A victim is not a third party, a ‘civil party’ as in the Extraordinary Chambers of Cambodia. Victims’ representatives must apply for leave from the Court in order to examine witnesses, experts and the accused; they may be restricted to making written observations only. The Prosecution and Defence are entitled to file replies to victims’ submissions. Victims do not have an automatic right to access Prosecution or Defence evidence or to call their own witnesses. They do not have the right to initiate an investigation, or to compel the Prosecutor to pursue any particular suspect or crime. The conditions and modalities by which a victim may participate anonymously are left to the discretion of the Court. Hearings may be conducted in camera in the victim’s interest, particularly if they are children or victims of sexual abuse, and victims may be questioned through videoconferencing. Anonymous participation of victims raises a conflict between two fundamental rights. On the one hand, victims must be granted protection. On the other hand, the accused is entitled to a fair trial, which implies that he or she may be informed of the entire contents of the records and have the opportunity to question or to arrange to have the victims questioned. The extent and success of the victims’ participation plan will largely depend on future proceedings.

Conclusion Following the unexpected but acclaimed adoption of the Rome Statute in 1998, and its entry into force in 2002, the Court has now a structure,

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a staff and a budget, and its activities have started, as reported in the following chapter. The selected issues reviewed in the present chapter are still unfinished work. A major outstanding issue is the need for the Court to gain international legitimacy and general, if not universal, acceptance. Efforts are being made by the Court itself, States Parties and NGOs in order to convince many more States to sign and ratify the Statute. The major significant task will be to try to obtain the political support and cooperation of China, India, Russia and the United States, and, perhaps, their acceptance of the Statute. The definition of the crime of aggression has long been a controversial international bone of contention between North and South States involving national and international politics. The amendments to the Statute adopted in June 2010 essentially give satisfaction to the permanent members of the Security Council, insofar as the Council’s prerogatives in handling ‘aggression’ remain unaffected: dealing – or not dealing – with aggression remains an international political matter, not subject to international judiciary investigations. The inclusion of victims’ rights and participation in the Rome Statute is a considerable advance in the practice of international criminal courts. It does not raise questions of principle but only questions of implementation: the Court must achieve a difficult balance between the rights of victims to participate in proceedings and the accused’s right to a fair trial, maintaining the presumption of innocence. Defining criteria for the use of the ‘interests of justice’ in order to stay an action by the Prosecutor is another politically charged issue, in view of the potential intervention of the Security Council. The prosecutor should retain his/her independence in considering the interests of justice while being pragmatic in different situations; the particular approach taken, the decision not to investigate or not to prosecute, will depend on facts and circumstances. The Prosecutor’s discretion in this matter is exceptional in its nature as there is a presumption in favour of investigation or prosecution whenever the criteria set in the Statute for such determination are met.35 The next chapter reviews the Court’s current activities, some of which have raised their own controversies and problems.

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9 The International Criminal Court (2): Referrals and Investigations

Since the entry into force of the Rome Statute, in 2002, five situations are being investigated by the Court, all of which are in Africa. Three States Parties – Uganda, Democratic Republic of the Congo and Central African Republic – have referred situations occurring on their territories, and the Security Council, acting under Chapter VII of the UN Charter, has referred a situation on the territory of a non- State Party, Darfur, Sudan, in accordance with Article 13 (b) of the Rome Statute. In 2010, Pre-Trial Chamber II granted the Prosecutor’s request to commence an investigation into crimes against humanity allegedly committed in Kenya. The Court’s Judges have issued eight arrest warrants. In 2009, four accused persons were in custody in the Court’s jail in The Hague. Thomas Lubanga Dyilio, Germain Katanga and Mathieu Ngudjolo Chui were arrested and handed over to the Court by the Congolese authorities. Jean-Pierre Bemba Gombo, from the Central African Republic, was arrested by Belgian authorities and transferred to The Hague in July 2008. The first ICC trial, that of Lubanga, started in January 2009. As a spectacular and politically controversial move, the Prosecutor issued an arrest warrant in 2008 against Sudanese President Omar al-Bashir on charges of genocide, crimes against humanity and war crimes. Besides the Court’s judicial activities in these five situations, the Office of the Prosecutor is carrying out preliminary analyses of the situations in Afghanistan, Colombia, Côte d’Ivoire, Georgia and Palestine.1 (International Criminal Court, 2009f). Details on the Palestine situation are given in this chapter. No decision on whether to open an investigation into those situations had been taken by April 2010. 209

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The situation in Uganda In December 2003, the President of Uganda, Yoweri Museveni, referred the situation concerning the Lord’s Resistance Army (LRA), a rebel group, in the north of the country, to the Prosecutor of the ICC. In July 2004, the Prosecutor formally opened investigations, having determined that there was a reasonable basis to do so; this was the first investigation of the Court. The Prosecutor notified the States Parties and other concerned states of his intention to start an investigation, in accordance with Article 18 of the Statute. Brief notes on Uganda and the Lord’s Resistance Army (LRA) In the 1970s and 1980s, Uganda was notorious for its human rights abuses, first during the military dictatorship of Idi Amin from 1971 to 1979, and then after the return to power of Milton Obote, who had previously been ousted by Amin. An estimated half million people were killed in state-sponsored violence. Since becoming president in 1986, Yoweri Museveni introduced democratic reforms and reduced abuses by the army and police.2 From 1986 to 1990, the Museveni regime tried to end various insurgencies, with a dual policy of offering rebels unconditional amnesties and intensifying military operations. The LRA, led by Joseph Kony, is the main rebel group. Formed in 1987, it operates mainly in the northern region of Uganda from bases established in southern Sudan. The LRA sought to overthrow the Ugandan government and inflicted brutal violence on the population of northern Uganda. They say that they are fighting for the establishment of a government based on the Ten Commandments. It has perpetrated massacres, mutilations, torture, sexual slavery and rape among the population. The LRA says that it has been fighting for the disaffected Acholi people of northern Uganda, but most of its victims are Acholi. Up to 85 per cent of the LRA is composed of children between 11 and 15 years of age, who are systematically abducted and used as soldiers, porters and sexual slaves. The violence has displaced more than 1.6 million people and tens of thousands of civilians have been killed or kidnapped. About 20,000 children were abducted. Both the government and the LRA have committed atrocities. Amnesty International has researched and documented human rights violations throughout the conflict in Uganda:3 Killings, rapes, sexual slavery, abduction of children and other crimes committed on a massive scale against civilians and others by members

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of the LRA, government security forces, government armed forces and their supervisors were so serious as to amount to crimes under international law, including crimes against humanity, war crimes, torture, extrajudicial executions and enforced disappearances. The Sudan was accused of supporting the LRA and Uganda of supporting the Sudan People’s Liberation Army (SPLA), the rebel movement fighting against the Sudan government. In 1999, Sudan and Uganda signed an agreement under which Sudan would stop aiding the LRA and Uganda would stop aiding the SPLA. In 2003, the LRA declared a unilateral ceasefire, but fighting and abuses continued. The Juba peace process, started in June 2006, was intended to bring closure to the northern Uganda conflict; it would have guaranteed the disarmament and reintegration of the LRA insurgencies. In July 2006, Kampala offered amnesty to LRA’s leaders in the event of a peace agreement. On 4 August, the LRA announced another unilateral ceasefire.4 On 26 August, Uganda and the LRA agreed to a truce through the Cessation of Hostilities Agreement, followed in November by an addendum. On 30 November 2006, Joseph Chissano was appointed as Special Envoy of the UN Secretary- General with a mandate to search for a comprehensive political solution to the conflict, a mandate later approved by the Security Council. On 19 February 2008, the LRA and the government of Uganda signed an Annexure (Annex) to the Agreement on Accountability and Reconciliation. The Agreement, signed on 29 June 2007, documents a compromise reached between the two parties to address ‘serious crimes, human rights violations and adverse socio- economic and political impacts’ of the more than 20-year conflict in northern Uganda. Amnesty International deplored that the government had done little to ensure justice, truth and reparations for the crimes committed by all sides to the conflict. The NGO was concerned that the Agreement and the Annex seek to avoid Uganda’s legal obligation to arrest and surrender the LRA leaders to the International Criminal Court. They fail to overcome serious weaknesses in the Ugandan justice system, they fail to prohibit amnesties for crimes under international law, and they fail to set out a victims’ focused reparations programme. On 12 March 2008, President Museveni stated during a visit to London that the prevailing view in his country was a preference for pursuing alternative traditional justice which was ‘compensatory rather than a retributive system’ rather than trials by the ICC. In May, the government took steps to set up a special division of the Uganda High Court to

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try those accused of planning or carrying out war crimes or other attacks on civilians during the conflict in an effort to build confidence among the LRA forces and encourage resumption of constructive engagement. On 16 December 2008, Chissano informed the UN Security Council that Joseph Kony had failed to sign the final peace agreement with the Ugandan government for the seventh time demanding the deferral of the ICC arrest warrants. President Museveni has reportedly assured Kony that his government would not hand him over to the ICC if he signs the agreement. In March 2009, the LRA announced yet another ceasefire as of 18 March. Meanwhile, military operations continued on both sides. The Secretary- General suspended the assignment of Special Envoy Chissano as of 30 June 2009. The cases The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen and Raska Lukwiya (Case ICC- 02/04- 01/05). Warrants of arrest in respect of five leaders of the LRA were issued under seal by Pre-Trial Chamber II in July 2005, in order to ensure the safety of victims, potential witnesses and their families. The warrants were unsealed on 13 October 2005 when security and protective measures were found adequate. Following the death of Raska Lukwiya on 12 August 2006, and the death of Vincent Otti on 2 October 2007, proceedings against them were terminated and their names removed from the case. The remaining three accused are at large.5 Joseph Kony is the leader of the LRA. The arrest warrant alleges that in mid-2002, Kony ordered LRA forces to begin a campaign of attacks against civilians in Uganda. In late 2003, he is alleged to have issued orders to kill, loot and abduct civilian populations, including those living in camps for internally displaced persons. The warrant lists 33 counts on the basis of Kony’s individual responsibility, including 12 counts of crimes against humanity (murder, enslavement, sexual enslavement, rape, inhumane acts of inflicting serious bodily injury and suffering), and 21 counts of war crimes (murder, cruel treatment of civilians, intentionally directing an attack against a civilian population, pillaging, inducing rape and forced enlisting of children). Okot Odhiambo is a Deputy Army Commander of the LRA. He is charged with crimes against humanity and war crimes. He was allegedly killed during fighting between different rebel groups in April 2008. If his death is confirmed, his name will also be removed from this list.

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Dominic Ongwen was Commander of the Sinia Brigade, one of the four brigades of the LRA. He is accused of participating in a violent campaign targeted against the civilian population during which about 2,200 persons were allegedly murdered and 3,000 abducted. The campaign involved plundering and destruction of villages and refugee camps, the enforced recruitment of child soldiers and sexual violence against girls. He is charged with crimes against humanity and war crimes. Admissibility of the case On 21 October 2008, Trial Chamber II decided to initiate proceedings under Article 19(1) of the Statute,6 appointed a counsel for the Defence and invited Uganda, the Prosecutor, the counsel for the Defence and victims or their representatives to submit their observations on the admissibility of the case by 10 November 2008, which was then extended to 18 November 2008. In its ‘Decision on the admissibility of the case under article 19(1) of the Statute’ of 10 March 2009,7 Pre-Trial Chamber II recorded these observations. The Prosecutor emphasized that he had ‘constantly monitored the situation’ since his decision to initiate an investigation in Uganda, but had not identified ‘any national proceeding related to the Case’. Accordingly, he maintained that the absence of national proceedings defined the admissibility of the Case and that the admissibility was not affected by Uganda’s attempts at negotiations with the LRA, nor by the Agreement on Accountability and Reconciliation of 29 June 2007 or the Annexure. The Defence raised a number of arguments touching upon the very legitimacy of the Chamber’s initiative, regarding in part the lack of contact with any of the persons sought by the Court, but refrained from raising substantive arguments on admissibility. In its response of 18 February 2009, the Solicitor General of Uganda acknowledged that efforts were being made to make the provisions of the Agreement and Annexure operational, in particular by means of the establishment of a war crimes division within the High Court and a Transitional Working Group vested with advisory tasks vis-à-vis the government. He concluded that it remained the position of Uganda that the Case was admissible and that ‘in the absence of the final peace agreement and in view of the ongoing military hostilities, the provisions of the Agreement [were] irrelevant in respect of the four indicted fugitives’.8

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The Chamber recalled that the ‘cornerstone of the Statute and of the functioning of the Court is the principle of complementarity’. On admissibility, it wrote: Pursuant to article 17 (a) and (b), the paramount criterion for determining the admissibility of a case is the existence of genuine investigation and prosecution at the national level in respect of the case; the willingness and ability of a State to genuinely prosecute and investigate crimes falling within the jurisdiction of the Court are the two fundamental concepts around which the notion of admissibility and the very principle of complementarity revolve (para. 36). ... In the view of the Chamber, the statements made by Uganda concerning the meaning and the scope of the Agreement and the Annexure within the context of its responses to the Chamber[9] – ambiguous as they are as to where and by whom the alleged perpetrators of atrocities should be tried – show lack of clarity on the respective powers of the Court and of the national judicial authorities as to who has the last say regarding the admissibility of the Case and, as a consequence, as to the judicial venue in which the Case should be tried ... the Chamber believes that lack of clarity as to the judicial authority ultimately vested with the power to decide the venue where the Case should proceed amount to ‘an ostensible cause impelling the exercise of proprio motu review (para. 44). The Chamber recalled the well-known and fundamental principle that any judicial body, including any international tribunal, retains the power and the duty to determine the boundaries of its own jurisdiction and competence. Such a power and duty, commonly referred to as ‘KompetenzKompetenz’ in German and ‘la compétence de la compétence’ in French, is enshrined in the first sentence of article 19(1), which provides that ‘the Court shall satisfy itself that it has jurisdiction in any case brought before it’. The Chamber noted as a fact that the Agreement had not yet been signed and that neither the Agreement nor the Annexure had been submitted to the Ugandan Parliament. According to information provided by the amici curiae, to date there have been no ‘public consultations or formal parliamentary debates on the policies and procedures that

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underpin the special Division, nor any draft law relating to the Special Division’ (paras. 47–9). The Chamber concluded: Pending the adoption of all relevant legal texts and the implementation of all practical steps, the scenario against which the admissibility of the Case has to be determined remains therefore the same as at the time of the issuance of the Warrants, that is one of total inaction on the part of the relevant national authorities; accordingly, there is no reason for the Chamber to review the positive determination of the admissibility of the Case made at that stage. For these reasons, the Chamber hereby determines that at this stage the Case is admissible under article 17 of the Statute. Comments In this case, the Court has intervened in a war situation, and has been confronted with pressures to defer investigations while peace settlement efforts are being made. The military conflict between the Ugandan government and the LRA is not over, and none of the accused has yet been arrested and transferred to The Hague. The fact that the situation concerning the LRA in the north of Uganda has been deferred to the ICC in December 2003, under article 14 of the Rome Statute, has given legitimacy to the Court in initiating investigations. The Court has confirmed this legitimacy in its ‘Decision on the admissibility of the case under article 19(1) of the Statute’ of 10 March 2009’, which determined that the case was admissible by the Court, in view of the total inaction of the government in initiating investigations and prosecutions of the accused. For the ICC, whatever other avenues are considered, there is no peace without justice. However, it seems that, possibly as a result of the arrest warrants issued in October and July 2005, the government and the LRA tried to find a compromise settlement of the conflict which would pre-empt or stop the Court’s proceedings. In mid-May 2006, President Museveni offered a total amnesty to Joseph Kony and his associates on the condition that they lay down their arms. The Agreement on Accountability and Reconciliation of 29 June 2007 and its Annexure were negotiated between the government and the LRA, but were not signed by Joseph Kony who wants the arrest warrants withdrawn. ICC opponents claim that the Court compromises chances of ending the 22-year conflict through peace talks offering amnesties and

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integration of rebel leaders and soldiers into governmental structures and forces. They accuse international justice as being a modern type of colonialism, the North punishing South leaders. A different criticism is that the Court will only investigate and prosecute LRA leaders, leaving aside crimes committed by government forces. The ICC responds that the Ugandan government itself asked the Court to intervene by investigating the situation. Even if the government adopted other approaches after its referral to the ICC, it did not withdraw this referral. ICC investigations may indeed have indirectly promoted peace talks by both parties. ICC investigations may also involve crimes by government forces, as part of investigations of the situation. The government has not shown that it is willing and able to take over these investigations and to prosecute those responsible for crimes in fair trials. The Court is in a difficult and fragile position. It has to prove its credibility and legitimacy against high obstacles, without Chapter VII authority, and without an international police force. Its needs the firm support of all states concerned to carry out its work.

The situation in the Democratic Republic of Congo (DRC) After receiving communications from individuals and NGOs, the Prosecutor announced in July 2003 that he would closely follow the situation in the DRC, especially in Ituri, indicating that the situation would be a priority for his office. In September 2003, he informed the Assembly of States Parties that he would be prepared to seek authorization from a Pre-Trial Chamber to start an investigation under his proprio motu powers. In a letter of November 2003 the government of the DRC welcomed the involvement of the ICC and in March 2004 the DRC referred the situation in the country to the Court. Three cases are being heard before ICC Chambers, two of them at the pre-trial stage, while the trial of Thomas Lubanga Dyilo started in January 2009. The accused Thomas Lubanga Dyilo, Germain Katanga and Mathieu Ngudjolo Chui are in the custody of the ICC. The suspect Bosco Ntaganda remains at large. Brief notes on the Democratic Republic of Congo A country of vast natural resources, the DRC has been subjected to almost constant wars involving other African countries and fighting between government and rebel militias who committed widespread human rights abuses. They caused millions of civilian deaths, suffering

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by the population, sexual violence, disease, hunger and flows of refugees. It is estimated that five million people died as a result of almost 15 years of conflict in the DRC, following the Rwandan genocide. Following Congo’s independence in June 1960, and a rebellion in the province of Katanga, Colonel Joseph Désiré Mobutu seized power in November 1965. He subsequently changed his name to Mobutu Sese Seko and that of the country to Zaire. Mobutu retained his position for 32 years through several sham elections, as well as through the use of brutal force. Ethnic strife and civil war, touched off by a massive inflow of refugees in 1994 from fighting in Rwanda and Burundi, led in May 1997 to the toppling of the Mobutu regime by a rebellion backed by Rwanda and Uganda and fronted by Laurent Kabila. He renamed the country the Democratic Republic of Congo (DRC), but in August 1998 his regime was itself challenged by a second insurrection again backed by Rwanda and Uganda. Troops from Angola, Chad, Namibia, Sudan and Zimbabwe intervened to support Kabila’s regime. The Lusaka ceasefire was signed in July 1999 by the DRC, Congolese armed rebel groups, Angola, Namibia, Rwanda, Uganda and Zimbabwe, and UN peacekeeping forces (MONUC) were deployed in 2000, although sporadic fighting continued. Laurent Kabila was assassinated in January 2001 and his son, Joseph Kabila, was named head of state. In October 2002, the new president was successful in negotiating the withdrawal of Rwandan forces occupying eastern Congo; in December 2002, the Pretoria Accord was signed by all remaining warring parties to end the fighting and establish a government of national unity. A transitional government was set up in July 2003. Joseph Kabila as president and four vice presidents represented the former government, former rebel groups, the political opposition and civil society. The transitional government held a successful constitutional referendum in December 2005 and elections for the presidency, National Assembly and provincial legislatures in 2006. Kabila was inaugurated president in December 2006. Yet, conflict in Ituri, North Kivu, South Kivu and Katanga provinces continued. Rebel groups, including former Rwandan-backed Tutsi and Hutu militias (Democratic Forces for the Liberation of Rwanda [FDLR] being the largest) continued to fight for land and resources. Security deteriorated in North Kivu, where the national army and dissidents under command of General Laurent Nkunda, resumed fighting in late November 2006, displacing up to 400,000 people since. Nkunda, a Congolese Tutsi, had created the National Congress for the Defence of the People (CNDP) in July 2006 and has been Rwanda’s ally in Eastern Congo. The Nairobi Agreement of November 2007 provided for the

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repatriation of the FDLR to Rwanda. The Goma Agreement of January 2008 called for an immediate cessation of hostilities, disengagement and the creation of a buffer zone. The Agreement failed, and the DRC and Rwanda mounted a joint operation against the Rwandan rebel Hutu militias active in Eastern Congo. In a reversal, Rwandan forces arrested Nkunda on 22 January 2009. The Kabila government faces substantial challenges, including an abusive and ill- disciplined national army (FARDC), corrupt public administration and lack of infrastructure and basic services. The security situation remains precarious.10 The cases Thomas Lubanga Dyilo (Case ICC- 01/04- 01/06) is a founder of the Union des Patriotes Congolais (UPC), a group created in 2000 by Uganda, then allied with Rwanda. He served as commander-in- chief of its armed military wing, the Forces patriotiques pour la libération du Congo (FPLC).11 Lubanga, a Congolese national, was arrested on 19 March 2005 and imprisoned in Kinshasa. A warrant of arrest was issued under seal by Pre-Trial Chamber I on 10 February 2006, and unsealed on 17 March 2006. On the same day, he was surrendered to the Court and transferred to its Detention Center in The Hague. He is charged with the following war crimes: ●

●

●

Enlisting and conscripting of children under the age of 15 years in the FPLC and using them to participate actively in hostilities in the context of an international armed conflict from early September 2002 to 2 June 2003; Enlisting and conscripting of children under the age of 15 in the FPLC and using them to participate actively in hostilities in the context of an armed conflict not of an international character from 2 June 1003 to 13 August 2003.

On 29 January 2007, the Pre-Trial Chamber confirmed the charges of war crimes. Lubanga is pleading not guilty to these charges. On 13 June 2008, Trial Chamber I decided to stay proceedings against Lubanga on the ground that it was impossible for the trial to be fair since the Prosecutor had not disclosed to the Defence, or made available to the judges, important potentially exculpatory evidence. The Prosecutor had obtained the evidence in question on a confidential basis from several sources, including the UN, and these sources had

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refused to disclose it to the Defence and, in most cases, to the Trial Chamber. Accordingly, Trial Chamber I ordered Lubanga’s unconditional release on 2 July 2008. That decision was not executed, as a result of the suspensive effect of the appeal filed by the Prosecutor. On 21 October 2008, the Appeals Chamber decided to uphold the decision to stay the proceedings, but reversed the decision to release Lubanga, and remanded the case to the Trial Chamber for a new determination, taking into account the new position of the sources of the documents in question, who had then agreed that the documents be submitted to the judges.12 On 18 November, the Chamber lifted the stay of proceedings, considering that the reasons for the suspension had ‘fallen away’. The trial commenced on 26 January 2009.13 The judges granted 93 persons the status of victims authorized to participate in this case. There are 31 prosecution witnesses. In his opening statement, Luis MorenoOcampo, the Prosecutor, said that Lubanga’s militia included children, some as young as 9 years old, who were used as cooks, cleaners, spies, scouts and sex slaves. They were ordered to kill, pillage and rape, and they were often killed and raped themselves. The Prosecution finished the presentation of its case in mid-July 2009. The presentation of the Defence’s case – originally scheduled to start in October 2009 – was adjourned pending a ruling by the Appeals Chamber on the recharacterization of the facts and the addition of charges of sexual slavery and inhuman and/or cruel treatment to the existing charges. On 8 December 2009, the Appeals Chamber of the ICC reversed the Trial Chamber decision on the reclassification of the facts. On 7 January 2010, the Lubanga trial resumed with the testimonies of two experts and three victims. The Defence then started the presentation of its evidence. In April 2010, Lubanga’s lawyers alleged that some intermediaries had prepared witnesses, who gave false testimonies. They also claimed that child soldiers brought to court were fake child soldiers.14 The Lubanga proceedings are the first test of formal victim participation in an international criminal trial. The case also highlights the gravity of recruitment, enlistment and conscription of child soldiers. As the first trial of the ICC, it is being closely observed by international lawyers and human rights NGOs. The cases of Germain Katanga and Mathieu Ngudjolo Chui (Case No. ICC- 01/04- 01/07), both Congolese nationals, were joined together by the Pre-Trial Chamber on 11 March 2008. Katanga was the second Congolese transferred by the DRC authorities to the ICC. Katanga, alias

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Simba (The Lion in Swahili), was alleged to be the highest ranking commander of the Force de résistance patriotique en Ituri (FRPI). A warrant of arrest against him was issued under seal on 2 July 2007, and unsealed on 17 October. Ngudjolo was alleged to be the former leader of the Front des nationalistes et integrationnistes (FNI). A warrant of arrest was issued under seal on 6 July 2007 and unsealed on 7 February 2008. He was arrested on 6 February 2008 and transferred to The Hague detention center on 7 February. Katanga and Ngudjolo allegedly jointly committed the following war crimes: ● ●

● ● ●

using children under the age of 15 to take active parts in hostilities; directing an attack against a civilian population or individual civilians not taking direct part in hostilities; wilful killings; destruction of property and pillaging; sexual slavery and rape.

They were also charged with crimes against humanity, that is, murder, rape and sexual slavery. Charges were confirmed on 26 September 2008. On 24 November 2009, the Katanga and Ngudjolo trial opened. From July 2002 to December 2003, Bosco Ntaganda (Case No. ICC- 01/0402/06) is alleged to have been Deputy Chief of General Staff for Military Operations, ranked third in the hierarchy of the Forces Patriotiques pour la Libération du Congo (FPLC), subordinate only to Lubanga and to Floribert Kisembo, FPLC Chief of Staff of the military wing of the UPC (Union des patriotes Congolais). Ntaganda is believed to be a Rwandan national of Tutsi descent. A warrant of arrest was issued against Ntaganda under seal on 22 August 2006, unsealed on 28 April 2008, with charges of war crimes for his role in implementing the FLPC policy of enlistment and conscription of children under the age of 15 and of using them to participate actively in hostilities in Ituri. Ntaganda was at large in the Congo by April 2010. Human Rights organizations15 deplored that, as Lubanga, Ntaganda was only prosecuted for enlistment, conscription and use of child soldiers, whereas numerous other international crimes have been committed by the FPLC. For these NGOs, the limited scope of the ICC investigations and charges might bring about lack of credibility in the Court’s action in the Congo, and contribute to victims’ disappointment.

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Comments Here again, as in the Uganda situation, the ICC is in a difficult and fragile position. Intervention of international justice in a country at war, and particularly in such a vast country as the DRC, with military expeditions from neighbouring countries, is a major challenge. On the other hand, the ICC is doing better with its indictees in DRC than with those in Uganda: none of the three accused persons has yet been arrested in Uganda, while three indictees related to the DRC situation are in the detention centre in The Hague, and the first ICC trial has started. As noted above, the focus only on the crimes concerned with child soldiers in two of the DRC cases has been criticized by Human Rights organizations as too narrow. The crisis over the Pre-Trial Chamber decision to release Lubanga, which shocked public opinion, was later resolved by the Appeals Chamber reversal, based on the UN’s agreement to release confidential documentation. However, this was the first ‘live’ test case of the potential conflict faced by the Court between the procedural exigencies of fair justice and the legitimate demands of victims and of public opinion, won by the latter. At the same time, the trial of only three relatively low-level leaders is in strong contrast with the mass atrocities committed in the DRC, and which continue to be committed.16 In this country, international justice is relegated to a minor role, while fighting and gross abuses go on.

The situation in the Central African Republic (CAR) The government of the Central African Republic referred the situation to the Court on 21 December 2004, the third government referral, following those from Uganda and the DRC. The referral concerned crimes committed after 1 July 2002 on its territory. The authorities provided information in relation to allegations of crimes and to proceedings held by the national judiciary. The Office of the Prosecutor had also received significant communications from NGOs and international organizations regarding alleged crimes. In April 2006, the Cour de Cassation in CAR indicated that the national authorities were unable to carry out the necessary proceedings in relation to the alleged crimes, in particular to collect evidence and obtain custody of the accused. The Prosecutor started an investigation in May 2007, the ICC’s fourth formal investigation. Some of the worst allegations related to killing, looting and rape occurred during intense fighting in October and November 2002 and in February and March 2003. Attacks against civilians followed a failed

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coup attempt; there emerged a pattern of widespread rapes and other acts of sexual violence perpetrated by armed individuals.17 One case is being heard by the Court, that of Jean-Pierre Bemba Gombo, a Congolese national, who is detained in The Hague. Brief notes on the Central African Republic Since the CAR declared its independence from France in 1960, the country has suffered successive rebellions fomented by interventions from France and neighbouring African countries.18 On 15 March 1993, François Bozizé came to power through a military coup, after two years of armed violence between his forces and those of then-President Ange-Félix Patassé. Patassé received reinforcements from Jean-Pierre Bemba’s Congolese Movement for the Liberation of Congo (MLC) troops, mercenaries from Chad and Libya and weapons and financial and political support from France and the Democratic Republic of Congo. Patassé’s rise to power was confirmed in relatively fair elections in 1999 and 2005. In October 2002, Bozizé launched a coup which failed; however, in 2003, he took power in a second coup and is the current President of CAR. Patassé is in exile in Togo. Bozizé’s tenure has been marred by armed rebellions. Both his army and rebel groups have continued to commit massive human rights violations with impunity. On 13 October 2008, Bozizé promulgated an amnesty law that was adopted by Parliament in September. Although the law excludes international crimes as defined by the ICC, it grants broad amnesty for serious crimes committed since 15 March 2003 by Bozizé’s army and presidential guard and by rebel groups, and for a more limited scope of potential crimes committed by Patassé and several of his associates. This leaves Bemba as the lone suspect targeted for prosecution by the ICC. After the ICC issued a warrant for Bemba and secured his arrest in 2008, Bozizé wrote to the UN Secretary- General on 1 August 2008 expressing his concerns over a letter from the Prosecutor stating, in part, that ‘sustained attention needed to be paid to the acts of violence committed in the north of the Central African Republic’. The ICC had initially indicated that it was focussing on crimes allegedly committed in CAR during the period 25 October 2002 to March 2003. Arguing that a potential investigation by the ICC into crimes committed after this period would ‘jeopardize the Comprehensive Peace Agreement were any of the combatants be arrested’, and that ‘CAR tribunals are competent to try cases involving acts committed during the periods covered

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by amnesty laws’ (thus contradicting the CAR Cour de Cassation’s finding of April 2006), Bozizé requested the UN Security Council to adopt a resolution suspending the Court’s investigation in CAR in accordance with Article 16 of the Rome Statute. As noted by the International Center for Transitional Justice, Bozizé’s request was a ‘veiled attempt to block the ICC from investigating crimes against CAR nationals that would fall within the amnesty law – in particular crimes committed by Bozizé’s troops since the coup of 15 March 2003’. The Case of Jean-Pierre Bemba Gombo (Case No. ICC- 01/05- 01/08) Bemba, a Congolese national, created the Movement for the Liberation of Congo (MLC) and its armed wing, the Liberation Army of Congo (ALC), in 1998. The MLC was allegedly called in to reinforce Patassé’s troops in the conflict in CAR between October 2002 and March 2003. Bemba, as President and Commander-in- Chief of the MLC, made all the political and military decisions of the MLC, and was allegedly aware of atrocities committed by his troops. These troops left the CAR in March 2003. In April 2006, Bemba lost the Congolese presidential election to Joseph Kabila, in the first free elections in the DRC. Bemba was arrested on 24 May 2008 in Brussels, following the lifting of a sealed arrest warrant issued the previous day by the ICC Prosecutor. On 10 June 2008, the Pre-Trial Chamber III issued a request to Belgium for the arrest and surrender of Bemba to the Court. Bemba was transferred and surrendered to the ICC on 3 July 2008. On 15 June 2009, Pre-Trial II confirmed five of the charges brought against him by the Prosecution: murder and rape as crimes against humanity, murder, rape and pillaging as war crimes. Bemba’s trial was scheduled to start on 5 July 2010 (Trial Watch, 2009b). Comments The arrest and trial of Jean-Pierre Bemba Gombo constitute a step forward by the ICC. Bemba is a ‘big fish’ in political terms as a rival to Joseph Kabila, in comparison with the other indictees now in the ICC jail in The Hague. He is a Congolese being judged for alleged crimes committed in another country, the Central African Republic, as the former Liberian President Charles Taylor (another ‘big fish’) is being tried in The Hague by the Special Court for Sierra Leone for alleged crimes committed in Sierra Leone. Besides the expected judicial problems of evidence, the political background in CAR is ominous. After referring the situation of the CAR to the Court in 2004, President Bozizé is now trying to have the ICC

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proceedings suspended by the Security Council, or, ultimately, to have them stopped. He has used the typical ‘peace or justice’ argument to back his request, that is, the arrest of combatants would jeopardize the Comprehensive Peace Agreement, while, at the same time, claiming that the CAR judiciary is able to try cases during the periods covered by amnesty laws. The reversal of Bozizé’s position, and presumably the withdrawal of government cooperation for further investigations, do not augur well for the continuation of the Court’s proceedings in the CAR.

The situation in Sudan This situation has seen three important and novel developments. For the first time, the Security Council, acting under Chapter VII of the UN Charter, referred a situation – that prevailing in Darfur – to the Prosecutor of the ICC (resolution 1593 (2005)). As noted above, the situations in Uganda, the Democratic Republic of Congo and the Central African Republic were all referred by their respective governments and not by the Security Council. The second novelty was that the United States abstained but did not veto the resolution, in spite of its former aggressive opposition to the ICC. The third was the courageous and controversial initiative of the Court in issuing a warrant of arrest against a serving head of state, the President of Sudan. The Court has issued four warrants of arrest, and three indictees are at large. In April 2010, Pre-Trial Chamber I refused to confirm the charges against Abu Garda. Brief notes on Sudan Africa’s biggest country, Sudan is divided along lines of religion (70 per cent Muslim, 25 per cent animist, five per cent Christian), ethnicity (African and Arab origin), tribe (nomadic and sedentary) and economic activities. The country has been in near constant war since it gained independence in 1956. Though oil was discovered in southern Sudan in 1978, most Sudanese remain in deep poverty. Sudan’s longest civil war was started in 1983, largely pitting the Muslim north against the Christian and animist south, and killing at least two million people and displacing another four million. It then developed into a national conflict. At the heart of Sudan’s conflicts is resistance to the political and economic policies of the Islamist ruling party, the National Congress Party (NCP), and the attendant desire for greater political autonomy and share in national wealth.

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In February 2003, the Sudan Liberation Army/Movement (SLA/M) and the Justice and Equality Movement (JEM) rebels, predominantly from the African Fur, Zaghawa and Masalit tribes, attacked government garrisons. The conflict in west Darfur then intensified, with government-supported Arab Janjaweed militias undertaking a policy of ethnic cleansing towards the civilian population of the African tribes. Between 2003 and 2008, the attacks by government forces and allied militias led to the death of 300,000 Darfurians and the displacement of 2.5 million. Despite the deployment of the African Union Mission in Sudan (AMIS) in 2004, the security situation in Darfur continued to deteriorate, compounded by fighting between rebel factions and an escalating proxy war between Sudan and Chad, which started destabilizing the Central African Republic. The north-south war formally ended in January 2005 with the signing of the Comprehensive Peace Agreement which incorporated the former rebel group, the Sudanese People’s Liberation Army/Movement (SPLA/M) into a Government of National Unity (GNU). Another peace agreement was signed in Nigeria with the support of the African Union between the government and one faction of the SPLA/M in May 2006. In Eastern Sudan, the Eastern Sudan Peace Agreement was signed in Asmara in October 2006. However, attacks against civilians continued. Early 2008, the government launched major aerial and ground attacks in west and north Darfur.19 The international commission of inquiry on Darfur Acting under Chapter VII of the United Nations Charter, on 18 September 2004 the Security Council adopted resolution 1564 requesting, inter alia, that the Secretary- General ‘rapidly establish an international commission of inquiry in order immediately to investigate reports of violations of international humanitarian law and human rights law in Darfur by all parties, to determine also whether or not acts of genocide have occurred, and to identify the perpetrators of such violations with a view to ensuring that those responsible are held accountable’. The Commission submitted its report to the Secretary- General on 25 January 2005.20 The Commission took as the starting point for its work two irrefutable facts regarding the situation in Darfur. First, according to United Nations estimates, there are 1.65 million internally displaced persons in Darfur, and more than 200,000 refugees from Darfur in neighbouring Chad. Secondly, there has been large-scale destruction of villages throughout the three states of Darfur.

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Based on a thorough analysis of the information gathered in the course of its investigations, the Commission established that the Government of the Sudan and the Janjaweed are responsible for serious violations of international human rights and humanitarian law amounting to crimes under international law. In particular, the Commission found that Government forces and militias conducted indiscriminate attacks, including killing of civilians, torture, enforced disappearances, destruction of villages, rape and other forms of sexual violence, pillaging and forced displacement, throughout Darfur. These acts were conducted on a widespread and systematic basis, and therefore may amount to crimes against humanity. The extensive destruction and displacement have resulted in a loss of livelihood and means of survival for countless women, men and children. In addition to the large scale attacks, many people have been arrested and detained, and many have been held incommunicado for prolonged periods and tortured. The vast majority of the victims of all of these violations have been from the Fur, Zaghawa, Massalit, Jebel, Aranga and other so- called ‘African’ tribes. (I, p.3) The Commission was particularly alarmed that attacks on villages, killing of civilians, rape, pillaging and forced displacement continued during the course of the Commission’s mandate. Besides the attacks committed by government forces, the Commission found credible evidence that rebel forces, namely members of the SLA and JEM, were also responsible for serious violations of international human rights and humanitarian law which may amount to war crimes, including cases of murder of civilians and pillaging. Without naming them, the Commission identified as possibly responsible for these violations specific individual perpetrators, including government officials, members of militia forces, members of rebel groups and certain foreign army officers acting in their personal capacity. On the other hand, the Commission concluded that the government as a whole had not pursued a policy of genocide. The Commission strongly recommended that the Security Council immediately refer the situation of Darfur to the International Criminal Court, pursuant to Article 13(b) of the ICC Statute. As repeatedly stated by the Security Council, the situation constitutes a threat to international peace and security. Moreover, as the Commission has confirmed, serious violations of international human rights law and humanitarian

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law by all parties are continuing. The prosecution by the ICC of persons allegedly responsible for the most serious crimes in Darfur would contribute to the restoration of peace in the region. The Commission affirmed that the Sudanese justice system was unable and unwilling to address the situation in Darfur. Security council resolution 1593 (2005) Initiated by France and sponsored by the UK, this resolution was adopted on 31 March 2005 by 11 votes in favour to none against, with four abstentions (Algeria, Brazil, China and the U.S.). In the preamble of this resolution (in part), the Security Council took note of the report of the International Commission of Inquiry on violations of international humanitarian law and human rights law in Darfur and determined that the situation in Sudan continued to constitute a threat to international peace and security. Acting under Chapter VII of the UN Charter, the Council decided to refer the situation in Darfur since 1 July 2002 to the Prosecutor of the ICC. After the vote, the Algerian representative said (in part) that the African Union was best placed to ensure the need to secure peace without sacrificing the need for justice. The representative from Sudan blamed the Security Council for using a policy of double standards; the Sudanese judiciary was capable of holding trials and the resolution would weaken prospects for settlement and further complicate the already complex situation.21 The reference to ‘double standards’ was a key concession to the United States made by the other members of the Security Council, to enable it to abstain. Under paragraph 6 of the resolution, the Council Decides that nationals, current or former officials or personnel from a contributing State outside Sudan which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to operations in Sudan established or authorized by the Council or the African Union, unless such exclusive jurisdiction has been expressly waived by that contributing State. ... For Köchler22 (2005), the resolution ‘once more documented that the Security Council’s decisions are mainly shaped by international power politics and that the Council’s statutory relations with the International Criminal Court are prone to abuse in favour of the political agenda of

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the most powerful member state ... the Council has again arrogated de facto judicial powers and, by arbitrarily changing the meaning of Art. 16 of the Rome Statute, appears to have acted according to the maxim of “might makes right” ’. Following the referral, the Prosecutor opened an investigation into the situation in Darfur on 1 June 2005. The resolution set a precedent as it was the first time that the Security Council referred a case to the ICC under Article 13 (b) of the Rome Statute, acting under Chapter VII of the Charter. The Cases Ahmad Muhammad Harun (‘Ahmad Harun’) and Ali Muhammad Ali AbdAl-Rahman (‘Ali Kushayb’), both Sudanese nationals (Case No. ICC01/05- 01/08). Warrants of arrest were issued against them on 27 April 2007. On 19 September 2007, Interpol issued a Red Notice (meant to seek the arrest or provisional arrest of wanted persons with a view to extradition) against both of the accused. Harun was Minister of State for the Interior of Sudan from April 2003 to September 2005, responsible for the ‘Darfur Security Desk,’ including the management and recruitment of Militia/Janjaweed to supplement the Sudanese Armed Forces. In 2006, he was appointed as Minister of State for Humanitarian Affairs, a provocative challenge to the ICC by the President of Sudan, and, for the International Federation for Human Rights, ‘an insult to the victims of Darfur seeking truth, justice and reparation for the grave crimes they have suffered’.23 In September 2007, he was appointed as Co-President of the National Committee charged with investigating human rights violations committed in Sudan and in particular in the Darfur region. He is charged with 20 counts of crimes against humanity and 2 counts of war crimes. Ali Kushayb, one of the most senior leaders in the tribal hierarchy in the Wadi Salih locality and member of the Popular Defence Forces (PDF), allegedly commanded thousands of Militia/Janjaweed from or around August 2003 until about March 2004. He is alleged to have implemented the counter-insurgency strategy of the Sudan government that also resulted in the commission of war crimes and crimes against humanity in Darfur. He is charged by the Court with 22 counts of crimes against humanity and 28 counts of war crimes. Kushayb had appeared once before the Sudanese Judicial Investigations Committee, set up in January 2005, for alleged involvement in five cases of attacks, pillaging, murders and forced displacement of the civilian population. He was allegedly imprisoned by the Sudanese authorities

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in November 2006, and released in October 2007. For the government, this was a clear indication that there was no tangible evidence against him.24 Both accused are at large. The case of Omar Hassan Ahmad al-Bashir (Case No. ICC- 02/05- 01/09) is exceptional since, for the first time, the ICC issued an arrest warrant for a serving head of state, the President of Sudan. In so doing, the Court followed the precedents of the indictments of President Slobovan Milosevic and President Charles Taylor while in power, respectively by the International Criminal Court for the Former Yugoslavia and the Special Court for Sierra Leone. Al-Bashir came to power in a military coup in 1989. On 14 July 2008, the Prosecutor applied for a warrant of arrest for alBashir. On 4 March 2009, Pre-Trial Chamber I of the ICC issued a first warrant of arrest against al-Bashir considering that there are reasonable grounds to believe that the suspect is criminally responsible for five counts of crimes against humanity and two counts of war crimes. A second warrant of arrest was issued against al-Bashir on 12 July 2010 for three counts of genocide. Reactions following the indictment Sudan: African and Arab governments Al-Bashir has denied all the accusations against him. According to The Economist (7 March 2009), he told his critics to ‘dissolve their accusations in water and drink them’. He remained entirely unapologetic for the deaths and suffering of his compatriots and denounced the Court as a tool of Western neo-imperialism. His government immediately rejected the accusations and said that it would fight the charges through legal means. After the issue of the warrant for arrest, the Sudanese ambassador to the United Nations said: ‘We strongly condemn this criminal move. It amounts to an attempt at regime change. We are not going to be bound by it, we are not going to respect it’.25 On the day the indictment was announced, the Sudan government retaliated by expelling 13 Western aid agencies who were to give all their properties, computers and files to the Sudanese authorities. Two sections of Doctors Without Borders were forced to leave in the midst of a meningitis outbreak.26 The expelled NGOs provided much of the food, water and medicine to the 275,000 refugees who live in temporary camps in Darfur. The aid agencies were accused of being involved in a conspiracy to supply the ICC with the evidence to prosecute alBashir and his associates.

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African leaders rallied behind al-Bashir in rejecting ICC’s indictment process. On 21 July 2008, the Peace and Security Council of the African Union meeting in Addis Ababa requested that the United Nations Security Council, in accordance with the provisions of Article 16 of the Rome Statute of the ICC, to defer the process initiated by the ICC, taking into account the need to ensure that the ongoing peace efforts are not jeopardized, as well as the fact that, in the current circumstances, a prosecution may not be in the interest of the victims and justice. ... 27 This request was reiterated on 29 January 2009 by Jean Ping, chairperson of the African Union Commission. He told IPS, a press agency, during a meeting of African foreign ministers in Addis Ababa: ‘The continent, through the African Union, has requested the UN Security Council to suspend the indictment of President Omar al-Bashir’. The Arab League and the Organization of the Islamic Conference28 have a similar position. On 30 March 2009, Arab leaders concluded their annual summit in Qatar by showing their support for al-Bashir, who defied the ICC by attending the meeting. The Arab League said that it rejected the ICC’s decision to issue a warrant for his arrest. UN Secretary- General Ban Kimoon attended the meeting but made no statement about this issue. On 3 July 2009, the African Union stated at its summit in Sirte, Libya, that ‘The AU member states shall not cooperate ... for the arrest and surrender of Sudanese President Omar al-Bashir to the ICC’. At its fourteenth Ordinary Session held in Addis Ababa from 31 January to 2 February 2010, the Assembly of Heads of State and Government of the AU expressed deep regret at the failure of the UN Security Council to exercise the powers entrusted to it under Article 16 of the Rome Statute and reiterated its request for the deferral of the proceedings against President al-Bashir: ‘... the search for justice should be pursued in a manner not detrimental to the search for peace’.29 Al-Bashir was in Chad from 21 to 23 July 2010, and in Kenya on 27 August 2010 for the promulgation of the new Kenyan Constitution. Both Chad and Kenya are States Parties to the Rome Statute and had an obligation to cooperate with the Court to enforce the warrants of arrest issued against al-Bashir. The ICC informed the Security Council and the Assembly of States Parties on 27 August 2010 about these visits ‘in order for them to take any measure they may deem appropriate’.30 In spite of these flagrant violations by two African States Parties of their obligations under the Rome Statute, the anti-ICC African ‘front’

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has fault lines. On 5 May 2009, the President of Botswana, Ian Khama, dissented from the African Union position; he said that his government supported the arrest warrant and suggested that the AU was also taking wrong positions on other African issues.31 The government of Jordan, as one of the three Arab states which are States Parties of the ICC, declared on 18 May that it will fulfil its obligations under the Rome Statute despite the arrest warrant for al-Bashir.32 On 13 July, the Minister of State for International Affairs, Henry Oryem Okello of Uganda, said that it would arrest Sudan’s President in accordance with the international warrant if al-Bashir entered his country.33 Similarly, on 30 July 2009, the Director General of South Africa’s Department of International Relations said that al-Bashir would be arrested ‘today’ if he were to land in South Africa.34 Desmond Tutu, who received the Nobel Peace Prize in 1984, wrote in March 2009 that the expected issuance of an arrest warrant for alBashir presented a ‘stark choice for African leaders – are they on the side of justice or on the side of injustice? Are they on the side of the victims or the oppressor? The choice is clear, but the answer so far has been shameful ... To imply that the prosecution is a plot by the West demeans Africans and understates the commitment to justice we have seen across the continent ...’35 Kofi Annan, the former Secretary- General of the UN, had the same views. He wondered why African leaders shouldn’t celebrate the ICC focus on African victims: ‘Do these [African] leaders really want to side with the alleged perpetrators of mass atrocities rather than their victims? ... The ICC represents hope for victims of atrocities and sends a message that no one is above the law.’36 Fatou Bensouda, Deputy Prosecutor of the ICC, wrote in her report of 7 April 2009:37 ‘As a Deputy Prosecutor, and as an African woman, I am dismayed by suggestions that this Court is targeting Africans. This Court has indicted the President of Sudan because he pursues the extermination of 2.5 million Africans’. The security council’s permanent members France and the United Kingdom, States Parties to the ICC, joined by the United States, are opposed to the proposal of African Union and Arab organizations to defer the ICC process concerning al- Bashir by a resolution adopted by the Security Council under Chapter VII of the UN Charter, as provided by Article 16 of the Rome Statute. 38 In July 2008, they rejected a bid by Libya and South Africa for a deferment.

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Russia and China are for a deferment on the grounds that seeking justice against al-Bashir will upset the peace process in Darfur.39 A Chinese foreign ministry spokesman said in March 2009: ‘China expresses its regret and worry over the arrest warrant for the Sudan president issued by the International Criminal Court. ... China is opposed to any action that could interfere with the peaceful situation in Darfur and Sudan’. China is one of Sudan’s most important trading partners. However, it has also sent troops to Darfur as part of a UN peacekeeping operation.40 On 5 March 2009, the current President of the UN General Assembly, former Nicaraguan foreign minister Miguel d’Escoto Brockman reportedly condemned publicly as politically motivated the ICC decision to issue the arrest warrant, saying, ‘it helps to deepen a perception that international justice is racist’. This statement was sharply criticized by the Convenor of the Coalition for the International Criminal Court, which asked him to publicly clarify that this statement was offered as a personal opinion and not in his capacity as President of the General Assembly. No response nor other comments by UN or other officials have been made available.41 Presidential and parliamentary elections were held in Sudan from 11 to 15 April 2010. On 26 April, al-Bashir was confirmed as the winner by receiving 68.24 per cent of the votes. Bahr Idriss Abu Garda (Case No. ICC- 02/05- 02/09) held the vicepresidency of the Islamist armed group known as the Justice and Equality Movement (JEM) fighting against the pro-government armed groups. He is currently Chairman and General Coordinator of Military Operations of the United Resistance Front. On 29 September 2007, an attack was carried out by JEM Forces and other forces against personnel, installations, material, units and vehicles of the African Union Mission in Sudan (AMIS) at the military base of Haskanita in North Darfur. They allegedly killed 12 and seriously injured 8 AMIS soldiers. According to the Office of the Prosecution of the ICC, this was the most serious attack ever launched against a peacekeeping operation in Darfur. On 20 November 2008, the Prosecutor submitted a request to Pre-Trial Chamber I for the issuance of arrest warrants against three military leaders suspected of having been involved in the attack. After review of the evidence, the Chamber considered that there were reasonable grounds to believe that Abu Garda was criminally responsible for three war crimes: ●

violence to life in the form of murder, whether committed or attempted;

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intentionally directing attacks against personnel, installations, material, units or vehicles involved in a peacekeeping mission; and pillaging.

On 23 February 2009, the Prosecutor requested the Chamber to issue a summons to appear against Abu Garda. On 7 May, the Chamber issued the summons under seal; it was unsealed on 17 May 2009. The suspect appeared voluntarily before the Chamber on 18 May 2009. Judge Cuno Tarfusser, acting as single Judge, informed him of the crimes he was alleged to have committed and of his rights under the Rome Statute. Abu Garda was then free to leave The Netherlands but was required to attend the confirmation of charges hearing scheduled for 12 October 2009. This was the first time since the creation of the ICC that the judges issued a summons to appear instead of an arrest warrant. This was also the first time that a suspect decided to appear on a voluntary basis before the Court pursuant to a summons to appear. According to Article 58 of the Rome Statute, a summons to appear is an order issued by the Pre-Trial Chamber for a person to appear in front of the Court on a specific date. In Abu Garda’s case, the Chamber issued the order, following the conclusion that there were reasonable grounds to believe that the suspect would voluntarily appear before the Court. In such a case, an arrest warrant is not necessary.42 On 8 February 2010, Pre-Trial Chamber I refused to confirm the charges against Abu Garda.

Examination of other requests Kenya The situation in Kenya has been under preliminary examination by the Office of the Prosecutor since 2008. Fifteen hundred persons died there after a disputed presidential election in December 2007, and 300,000 persons were displaced from their homes. On 9 July 2009, the Prosecutor received from Kofi Annan, the Chairman of the African Union Panel of Eminent African Personalities, the sealed envelope and supporting materials previously entrusted to Mr. Annan by the Waki Commission on the post- election violence that erupted in Kenya in late 2007 and early 2008. The materials include a list of approximately 200 Kenyan politicians and others identified by the Commission as possible suspects. On 14 July, the Prosecutor also received two reports from the Kenyan Attorney General on crimes

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committed during the violence and on the witness protection programme (International Criminal Court, 2009e). On 6 November 2009, the Presidency of the ICC decided to assign the situation of the Republic of Kenya to Pre-Trial Chamber II. On 31 March 2010, the Chamber authorized the Court’s Prosecutor to open a formal investigation of Kenya’s post- election violence. Ocampo had provided the judges with a list of the most serious criminal incidents, together with a non-binding list of 20 names of people who appeared to bear the greatest responsibility for these crimes. The European Union delegation to Kenya noted that the ICC’s involvement was a result of the ‘failure by Kenya’s state institutions to establish a local special tribunal’.43 Palestine/Israel (Gaza) On 27 December 2008, Israeli forces began a military incursion into Gaza, including a bombing campaign, code-named Operation ‘Cast Lead’. Its stated aim was to end eight years of rocket attacks into Israel by armed groups affiliated with Hamas and other Palestinian factions. Unilateral ceasefires were announced by both Hamas and Israel on 18 January 2009. During that period, Israel carried out over 2,360 air strikes over Gaza, as well as ground assaults. Palestinian sources allege that more than 1,400 Gazans, most of them civilians, were killed. Israel says that 1,166 Gazans were killed and that most of them were militants. Palestinian human rights groups called for war crimes investigations after the fighting ended, accusing Israel of using disproportionate force and failing to protect civilians. By the Israeli military count, 1,166 were killed, of whom 295 were non- combatants, 709 were what it called Hamas terror operatives and 162 were men of unidentified affiliations.44 The Israeli army said that Hamas fought from civilian areas and used human shields, all of which are deemed as war crimes. At the same time, Hamas and its associates bombed Israeli territory with 617 rockets and 178 mortar shells, causing a total of 3 civilian fatalities, 182 wounded and 584 persons suffering from shock and anxiety syndrome. Nine Israeli soldiers were killed inside the Gaza Strip.45 In the aftermath of the Gaza operation, the ICC became directly involved through a motion initiated by the Palestinian Authority, in coordination with Jordan, a State Party of the Court. The reports of investigation missions also raised the possibility for the UN Security Council to refer the situation in Gaza to the ICC.

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A motion to the ICC by the Palestinian authority On 22 January 2009, the Palestinian Minister of Justice lodged with the ICC Registrar an ad hoc ‘Declaration Recognizing the Jurisdiction of the International Criminal Court’. The declaration, signed by the ‘Government of Palestine’ on ‘Palestinian National Authority’ letterhead, provides: In conformity with Article 12, paragraph 3 of the Statute of the International Criminal Court, the Government of Palestine hereby recognizes the jurisdiction of the Court for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002 ... 46 The Court is examining the request on its merits, in particular as to whether it may accept a request from a non-State. The Preamble of the Rome Statute refers to ‘States Parties’ and Article 12 refers to ‘States’ without defining what is a state. Those supporting the Palestinian request observe that over 100 states have recognized a ‘State of Palestine’, and it is a member of the Arab League. Moreover, the Palestine National Authority has diplomatic relations with many states and has observer status with the United Nations. Opponents say that accepting the request would constitute an implicit recognition of statehood through the Court. Leaving aside this speculation, the Court might admit the request from the Palestinian Authority only ‘for the purposes of the Court’s Statute’. On 12 January 2010, the Court advised the UN High Commissioner for Human Rights that it had ‘a duty to conduct a preliminary examination to consider all issues pertaining to its jurisdiction and to the admissibility of cases potentially arising from the situation’.47 By August 2010, the Court had not decided whether to accept the Palestinian Authority request, and whether it would start an investigation. Fact-finding missions Separate missions made similar charges against both Israel for excessive use of force in its military operation in Gaza and against Hamas for firing hundreds of rockets into Southern Israel, generally with a focus on Israel’s alleged war crimes and crimes against humanity.

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The league of Arab states report (30 April 2009) The Independent Fact-Finding Committee on Gaza, established by the League of Arab States, visited Gaza in the period from 22 to 27 February 2009. Its report of 30 April 2009, ‘No Safe Place,’ found that ‘members of the Israel Defense Forces committed war crimes, crimes against humanity and, possibly, genocide in the course of operation Cast Lead’ ... Military commanders and political leaders are likewise responsible for crimes committed under their effective command, authority or control. The Committee also held Hamas responsible as the governing de facto authority of Gaza for violations of international humanitarian law: ‘Individuals who have fired rockets indiscriminately into Israel are criminally responsible for their actions and must be held accountable’ ... ‘However, the Report identified ‘a number of factors that reduce the blameworthiness but not their criminal responsibility. Such factors include the fact that Palestinians have been denied their right to selfdetermination by Israel and have long been subjected to a cruel siege by Israel’ (paras 34–35). The Report was transmitted to the President of the Security Council by the Permanent Observer of the League on 13 May 200948 (Doc. S/2009/244), with a request that the Council refer the situation in Gaza to the ICC. The Amnesty international report (2 July 2009) This Report, titled ‘Operation ISRAEL/GAZA “Cast Lead” ’: 22 days of death and destruction’ documented ‘Israel’s use of battlefield weapons against a civilian population trapped in Gaza, with no means of escape’. It also condemned Hamas and other Palestinian armed groups for firing hundreds of rockets into southern Israel, killing three Israeli citizens and driving thousands from their homes, constituting war crimes.49 It condemned Israel’s continuing refusal to cooperate with the Goldstone Mission. The Goldstone report (25 September 2009) On 3 April 2009, the President of the UN Human Rights Council established an international independent Fact-Finding Mission with the mandate ‘to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after’.50 The Mission was headed by Justice Richard Goldstone, former member of the South African Constitutional Court and former Chief

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Prosecutor of the International Criminal Tribunals for the Former Yugoslavia and Rwanda. The Report of the Mission, submitted by the Human Rights Council to the UN General Assembly on 25 September 2009,51 concluded there was evidence indicating serious violations of international human rights and humanitarian law were committed by Israel during the Gaza conflict, and that Israel committed actions amounting to war crimes, and possibly crimes against humanity. The report also concluded that there was also evidence that Palestinian armed groups committed war crimes, as well as possibly crimes against humanity, in their repeated launching of rockets and mortars into southern Israel. The Mission found that the Government of Israel had not carried out any credible investigations into alleged violations. The Mission recommended that the UN Security Council require Israel to report to it, within six months, on investigations and prosecutions it should carry out with regard to the violations identified in its Report. The Mission further recommended that the Security Council set up a body of independent experts to report to it on the progress of the Israeli investigations and prosecutions. If the experts’ reports do not indicate within six months that good faith, independent proceedings are taking place, the Security Council should refer the situation in Gaza to the ICC Prosecutor. The Mission recommended that the same independent expert body also report to the Security Council on proceedings undertaken by the relevant Gaza authorities with regard to crimes committed by the Palestinian side. As in the case of Israel, if within six months there are no good faith independent proceedings conforming to international standards in place, the Council should refer the situation to the ICC Prosecutor.52 The UN Human Rights Council approved the Report on 16 October 2009 by 25–6 with 11 abstentions.53 On 3 November 2009, the U.S. House of Representatives considered the Goldstone Report ‘irredeemably biased and unworthy of further consideration or legitimacy’ and called on the U.S. President and the Secretary of State to oppose ‘any [other] measures stemming from this report in multilateral fora’ (Resolution 867). On 11 March 2010, the European Parliament passed a resolution which calls on EU member States to ‘demand the implementation of the Goldstone report’s recommendations’, by a majority of 335 to 287 votes.54 Israel’s position On 29 January 2010, Israel released a 46-page paper, ‘Gaza Operation Investigations: Update’, which described Israel’s procedures for the

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investigation of allegations of violations of the Law of Armed Conflict. This paper supplemented and updated a paper released in July 2009, ‘The Operation in Gaza: Factual and Legal Aspects’, which addressed a range of factual and legal issues related to the Gaza Operation, including the thousands of missile attacks that necessitated the Operation, and the deliberate Hamas entrenchment in civilian areas which made combat complex and challenging. It stressed that Israel was committed to full compliance with the Law of Armed Conflict, and to investigating every allegation of violations, irrespective of the source of the allegation. By the date of the report, Israeli Defense Forces (IDF) had launched investigations into 150 separate incidents arising from the Gaza Operation. Of the 150 incidents, so far 36 have been referred for criminal investigation. Israel said that it faced ‘asymetric conflicts’ and blamed ‘militants operating from within and behind civilian areas’ for placing civilians at risk.55 According to another Israeli report (March 2010),56 the Goldstone report contains ‘four basic flaws’: it ‘does not deal with the nature of Hamas, particularly its terrorist aspects’; it ‘minimizes the extent and gravity of the terrorist activity carried out against Israel from the Gaza Strip and does not assign responsibility for it to Hamas’; it ‘does not deal with Hamas’ military buildup in the Gaza Strip during 2007–2008, which threatened Israel (as opposed to its extensive coverage of the historical development of the Israeli-Palestinian conflict)’; and it ‘completely ignores the massive amounts of aid Iran as well as Hezbollah and Syria (directly or through Hezbollah) gave Hamas to construct its military-terrorist infrastructure.’ For the leader of the research group, ‘the Goldstone Report is one-sided, biased, selective and deceptive, since it simply accepts Hamas claims at face value and presents everything through Hamas’ eyes’. Dershowitz57 rejects Goldstone’s conclusions and affirms that: 1. Israel did not have a policy of targeting innocent civilians for death. Indeed the IDF went to unprecedented lengths to minimize civilian casualties; and 2. Hamas did have a deliberate policy of having its combatants dress in civilian clothing, fire their rockets from densely populated areas, use civilians as human shields, and store weapons in mosques. By April 2010, the Court had not decided whether to accept the Palestinian Authority’s request, nor whether it would start an investigation.

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Conclusion The International Criminal Court and its Prosecutor, Luis MorenoOcampo, are on trial. The Court is going through its second major crisis and potentially facing a third one. The first was the rejection of the Court by the United States and its widespread campaign to discredit the ICC as ‘deeply flawed’, in order to protect its political and military leaders and troops from an ‘international kangaroo court’, or, more generally, to protect its sovereignty. One tool was the pressure on foreign governments to sign bilateral agreements with the United States preventing the surrender of U.S. personnel to the Court. The situation changed with the Darfur resolution when the United States did not block the Security Council from adopting resolution 1593 (2005) by abstaining. The United States endorsed publicly the Court’s indictment of Harun and Al Kushayb and urged the Sudanese government to cooperate.58 While it is unlikely that the Obama administration will move towards ‘re-signing’ the Rome Treaty in the foreseeable future – the United States has other compelling internal and external priorities – it appears that the ICC is no longer faced with a U.S. ‘enemy’. The second crisis was triggered by the Court’s arrest warrant for the President of Sudan, issued on 14 July 2008, for individual responsibility as an indirect perpetrator of crimes against humanity and war crimes. Al-Bashir rejected these charges and dismissed the Court as politically motivated. All opponents to the arrest warrant used the argument that the indictment would jeopardize ongoing peace efforts in Sudan. The underlying and unsaid motivation for most leaders was the fear that they might be subject to investigations and prosecution for their own alleged crimes. They view the prosecution of al-Bashir as a dangerous precedent in issuing an arrest warrant against a sitting head of state. Their people were not consulted. The third potential crisis may arise if the Prosecutor decides to start an investigation into the Gaza situation, which would arouse strong opposition from the United States and serious political problems for Israel’s supporters that are States Parties to the Rome Statute. Peace or justice? Prosecutor Moreno- Ocampo59 wrote in 2007: for each situation in which the ICC is exercising jurisdiction, we can hear voices challenging judicial decisions, their timing, their

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timeliness, asking the Prosecution to use its discretionary powers to adjust to the situations on the ground, to indict or withdraw indictments according to short time political goals. We also hear officials of States Parties calling for amnesties, the granting of immunities and other ways to avoid prosecutions, supposedly in the name of peace; we can hear voices portraying the ICC as an impediment to progressing further with peace processes. The ICC is now facing the same attacks as the International Criminal Tribunal for the Former Yugoslavia (ICTY): do not interfere with peace efforts, leave justice aside. The work of the ICC will necessarily raise the major issue of the role of international justice versus peace processes. Can justice and peace negotiations work together in spite of their different mandates and processes? Should the Court agree to defer investigations and prosecutions in order to allow peace negotiations to proceed? Should peace agreements include amnesties and immunity from criminal prosecution for the main actors? The experience of the ICTY has shown that the Prosecutor’s indictments of senior Serb leaders, including President Milosevic, sharply criticized by Western leaders, had a role in solving a political crisis and ending a war. There is no doubt that peace efforts should, in principle, come first, in the interest of the populations concerned. However, in all ‘situations’ under review by the Court, none of these efforts has been successful, in the absence of good faith and trust on the part of all parties. These efforts should continue, but they are no justification for preventing, stopping or deferring justice processes. Selectivity and double standards Is the ICC biased against the Africans and the Moslems? As recalled by the International Crisis Group,60 one should remember that the victims of the violence, including 300,000 civilians killed in Darfur between 2003 and 2008, are African Moslems. So are the 2.5 million displaced persons living in tents and in refugee camps for the last six years, not to mention the countless number of women who were raped during the fighting. ‘Here, the ICC is standing up in support of Muslims’ rights. Some Arab leaders missed that’. The ICC now has 114 States Parties, including 31 African states. The Court’s personnel is composed of nationals of 83 nationalities. The first Vice-President of the Court is Judge Fatouma Dembele Diarra (Mali). Other African judges on the 18-judge bench are from Botswana, Ghana,

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Kenya and Uganda. Fatou Bensouda, Deputy Prosecutor, is from Gambia. Judge Akua Kuenyehia from Ghana is President of the Pre-Trial Chamber which issued the al-Bashir decision. However, the ICC targets are in a narrow field, at least for the moment. As noted by Neier in 2008:61 Up to now, none of the 10 countries of those indicted [by all international criminal tribunals] is a world power or even a significant regional power. We are not yet at the point where international justice is a factor that must be weighed by officials of countries so powerful as the United States, Russia or China. There is no prospect of indictments for Russian crimes in Chechnya or for American torture of detainees at Abu Ghraib, Bagram and Guantanamo Bay. The refusal thus far of the major powers to become parties to the International Criminal Court, and their power to veto resolutions of the UN Security Council, helps to ensure that they are exempt. Professor William Schabas raised the question recently: why does the ICC Prosecutor not go after the British [army in Iraq], but rather chooses to go after child soldiers in the DRC or in Uganda?62 Part of the answer is because the ICC and the other international criminal courts are dependent, to a large extent, on the power and finances of the powerful countries. There are power differentials in the world to which intergovernmental organizations – the ICC is one – cannot be oblivious.63 The excuse that crimes are only committed in Africa is not valid in view of Guantanamo and war crimes committed by Western powers in Iraq and Afghanistan (indiscriminate air bombings). However, the recurrent wars in Africa create conditions for recurrent war crimes and crimes against humanity, directed or allowed to be committed, by dictatorial leaders in full impunity, while there are constitutional counterpowers, including freedom of media, in democratic countries which limit or redress some of the abuses. The excuse that national courts in democratic countries judge fairly military crimes is also questionable: French and U.S. military tribunals are more prone to render light verdicts against their own military personnel rather than stern ones. However, for Professor Cassese,64 it is not an inherent flaw of international tribunals to be selective or to uphold a double standard: In sum, I would say that we have the potential for not being selective, but for being really fair; but those who have the tools in their

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hands, namely the prosecutors, do not use their legal tools because they are not prepared to do so. At this stage of the ICC’s history, it is likely that the ICC Prosecutor will weigh carefully the pros and cons before deciding to initiate proprio motu investigations in situations where Western powers are directly or indirectly concerned. An incipient legal and political problem for the Prosecutor is whether or not to accept the Palestinian Authority’s request to initiate investigations in the Gaza conflict. Such decisions, if authorized by a Trial Chamber, would endanger the relationships of the Court with these powers. They will be a test for the Prosecutor’s and the Court’s independence and therefore for its legitimacy as an independent international court and for its credibility. Victors’ justice When a government – Uganda, the DRC or Central African Republic – refers a situation in its own country to the ICC, its motivation may be that of punishing the rebels or the vanquished in a conflict, but to retain its own impunity concerning alleged crimes committed by its own forces, as ordered by the government. Another dilemma for the ICC, as seen in the case of Central African Republic: President Bozizé tried to withdraw his reference to the Court when investigations of crimes allegedly committed by his own side were to be investigated. This recalls the obstacles created by the Rwanda government when the International Criminal Court for Rwanda started investigating alleged crimes committed by the Tutsi-led RPF. The ICC Prosecutor can, in principle, more easily keep a balance between two sides to a conflict when, as in Sudan, the situation was not referred by the government, but ‘ordered’ by the Security Council. But in all cases, the Court should fulfil its mandate and exercise its jurisdiction, by identifying and prosecuting the perpetrators of the ‘most serious crimes of concern to the international community as a whole’ (Art. 5 of the Rome Statute). In summary, the ICC has been created and works in a world of sovereign nations. Those who have ratified the Rome Statute have, in principle, accepted its requirements and their own obligations. However, when the Court indicts a head of state, other leaders tend to exert more solidarity with the accused than a feeling of obligation to the victims. The creation of the ICC is indeed a major step in the long combat against impunity. However, the Court is in its first years of labour, and many years will be needed for the Court to find legitimacy and

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credibility. Many years will pass before the ICC can credibly claim that the end of impunity in the world is near, as the Court does not have power or direct influence over governments’ conduct and decisions, such as those leading to war, and conducting wars. There is no evidence, yet, that the creation and work of the ICC is a deterrent to crimes, although the future arrest and trial of senior political and military leaders may have an influence, in time, over the practices of present and future rulers. There is no peace without justice but international justice is not the main path to peace, nor to reconciliation; it should run its course in parallel with peace efforts. National and international justice are, or should be, part of any peace settlement.

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Part IV National Criminal Justice

This Part considers cases referred to national justice in two different situations where they might have been referred to an international court. What are the reasons for this choice, and how the cases are treated in the national courts is the object of the following two chapters. Chapter 10 reviews the creation and work of the Iraq Special Tribunal, and Chapter 11 deals with the slow process of Senegal in the prosecution of the former Chad ruler, Hissène Habré.

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10 The Iraqi Special Tribunal

The Iraqi Special Tribunal (IST) was created on 12 December 2003 by the Iraqi Governing Council. In August 2005, the Statute of the Tribunal was revoked by Iraq’s Transitional National Assembly and replaced by an amended Statute that renamed the Special Tribunal the High Tribunal, and was promulgated as Law No. 10 on 18 October 2005. The Tribunal has jurisdiction over Iraqis and non-Iraqi residents in Iraq accused of the crime of genocide, crimes against humanity, war crimes or violations of certain Iraqi laws. The Tribunal is an Iraqi court, not an international or a hybrid national/international tribunal, although its Statute contains international elements. It applies both domestic and international law, and includes international fair trial standards. On 13 December 2003, Saddam Hussein was captured by U.S. forces. On 30 June 2004, he and 11 senior Ba’athist officials were handed over to the interim Iraqi government. The first legal hearing in Saddam Hussein’s case was held before the Iraqi Tribunal on 1 July 2004 and the Tribunal’s first trial, involving other defendants, started on 19 October 2005. On 5 November 2006, Saddam Hussein was sentenced to death by hanging and he was executed on 30 December 2006. Other sentences followed in a series of trials of senior leaders of the Saddam Hussein regime.

Brief notes on Iraq and Saddam Hussein After World War I and the defeat of the Ottoman Empire, Iraq was placed under a British mandate by the League of Nations in 1920, and became a kingdom in 1921 under Faisel the First.1 The first Iraqi Constitution was promulgated in 1925. The royalty rule was challenged by several 247

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coups and military revolts and ended in 1958. Iraq became a republic with the interim Constitution of 1958. The leader of the military junta, Abdul Karem Kassim, was overthrown and killed in a coup in 1963 by the military and the Ba’ath Socialist Party. Saddam Hussein formally assumed the presidency of Iraq upon the resignation of President Ahmed Hassan al-Bakr, a general, on 16 July 1979. Saddam Hussein had been Vice-President of Iraq since 1968 when another coup which brought the Ba’athists to power. Iraq and Iran entered into warfare on 22 September 1980. During the war, Iraq used chemical weapons against Iranian forces and Kurdish separatists. The eight-year war ended in a stalemate; upwards of 1.7 million were estimated to have died on both sides. On 2 August 1990, Saddam Hussein invaded and annexed Kuwait. A first resolution of the Security Council (660) adopted on 2 August 1990 determined that there existed a breach of international peace and security regarding this invasion and condemned it. Further resolutions approved sanctions against Iraq. Resolution 678 gave until 15 January 1991 for Iraq to fully implement all resolutions, and authorized Member States to use all necessary means to uphold and implement these resolutions and restore international peace and security in the area; this authorized the use of force by a Coalition led by the United States under Chapter VII of the UN Charter. The Gulf War began on 17 January 1991 and ended on 28 February 2001 with the defeat of Iraqi forces. While leaving Saddam Hussein in power, Security Council resolution 687 of 3 April 1991 imposed obligations on Iraq to disarm and destroy its arsenal of chemical and biological weapons and not to obtain or develop nuclear weapons. The U.S. political climate changed after the plane attacks in New York and Washington on 11 September 2001. Following the war in Afghanistan, launched in October 2001 by the United States and the United Kingdom in response to these attacks, President Bush ordered the invasion of Iraq in March 2003, arguing that Iraq was a present danger in view of its weapons of mass destruction and its support for terror. Resolution 1441 adopted by the Security Council on 8 November 2002 decided that Iraq had been and remained in material breach of its obligations including resolution 687 and decided to afford Iraq a final opportunity to comply with these obligations. The Council warned again that it would face ‘serious consequences’ as a result of its continued violations of its obligations. With authority for the use of force given by the U.S. Congress, but without a clear authorization by the divided Security Council to use force, a Coalition led by the United States and

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the United Kingdom started the war against Iraq on 20 March 2003, which ended formally on 1 May 2003. The United States established a Coalition Provisional Authority to govern Iraq as an Occupying Power under the Geneva Conventions. After several months of hiding, Sadam Hussein was captured by U.S. forces on 13 December 2003.2 On 28 June 2004, the Coalition Provisional Authority was dissolved and full governmental authority was transferred to the sovereign Iraqi Interim Government created in early June. Resolution 1546 adopted unanimously by the Security Council on 8 June 2004 welcomed the end of the occupation of Iraq and the reassertion of Iraq’s full sovereignty. On 30 June 2004, Saddam Hussein, held in custody by U.S. forces at Camp Cropper in Baghdad, and eleven senior Ba’athist officials were handed over legally (although not physically, as there was not an adequate Iraqi prison to hold them) to the interim Iraqi government and were arraigned on 1 July 2004. The regime’s crimes A report by Human Rights Watch3 (2002) estimated that Saddam Hussein’s regime was responsible for genocide, war crimes and crimes against humanity. Their victims included up to 290,000 persons who had ‘disappeared’ since the late 1970s, many of whom are believed to have been killed. Attacks against the Iraqi Kurds Between 1977 and 1987, some 4,500 to 5,000 Kurdish villages were systematically destroyed and their inhabitants made to live in resettlement camps. Commencing in the spring of 1987, thousands of Iraqi Kurds were killed during chemical and conventional bombardments. From February to September 1988, the Iraqi government launched the official ‘Anfal’ campaign, during which more than 100,000 Kurds, mostly men and boys, were trucked to remote sites and executed. Chemical weapons were used principally in March 1988; in the town of Halabja alone, a documented 3,200 people are believed to have died from chemical gas attacks. The killings constitute acts of genocide; the killings, forcible and arbitrary transfer of populations and chemical weapons attacks amount to crimes against humanity. Forced expulsion of ethnic minorities from Kirkuk Since 1991, Iraqi authorities have forcibly expelled over 120,000 Kurds, Turcomans and Assyrians from the oil-rich region of Kirkuk.

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Repression of the Marsh Arabs and other Shi’a During the early years of the Iran-Iraq war, the Iraqi government arrested thousands of Shi’a Muslims on the charge of supporting the 1979 revolution in Iran. About 50,000 to 70,000 were arrested and imprisoned indefinitely without charge; most remain unaccounted for. After the Gulf War, in southern Iraq, members of the Shi’a majority rose up in revolt; hundreds were summarily executed or disappeared. These attacks amount to crimes against humanity. General repression, large-scale ‘disappearances’ and other crimes The Iraqi people, under Saddam Hussein, suffered a consistent pattern of political imprisonment, torture, beatings, rape, burning alive of suspects, and summary executions. ‘Disappearances’ are believed to range between 250,000–290,000 in addition to the 50,000–70,000 Shi’a cases, and the 100,000 Kurdish victims. These amount to crimes against humanity. The use of chemical weapons during the Iran-Iraq war It is estimated that some 20,000 Iranians were killed by mustard gas and the nerve agents tabun and sarin. Both Iran and Iraq are parties to the Geneva Protocol that prohibits the use of such weapons, constituting war crimes. Occupation of Kuwait and related abuses During Iraq’s occupation of Kuwait in 1990–1991, Iraqi forces committed systematic and gross abuses of human rights, constituting war crimes and crimes against humanity.

Creation of the tribunal The first question was whether to establish an international tribunal on the model of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda, or a hybrid national/international court on the model of the Special Court for Sierra Leone or the Cambodia Extraordinary Chambers, models all supported by the United States, or a national tribunal without international judiciary personnel. The possible reference to the International Criminal Court was excluded, first, because most of the alleged crimes were committed before 1 January 2002, when the Rome Statute came into force, which does not allow retroactivity. Also, the Court has jurisdiction only over

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the nationals of countries that have ratified its Statute, or those who commit atrocities in a country which has. Neither the United States nor Iraq are States Parties to the Court. Finally, the aggressive U.S. campaign against the Court eliminated this option. The option of creating another international criminal tribunal was also rejected. The rift in the Security Council over the war in Iraq, with France and Russia opposed to the American/British war, would not allow the approval of such an international tribunal by a divided Security Council. Other arguments against such an option were the cost of the existing tribunals and the slowness of their work and their seat away from the country where crimes had been committed. A more desirable option would have been to establish a mixed national-international court, backed by the UN, based in Iraq, with a mix of Iraqi and international prosecutors and judges, operating under international law. Such a tribunal would have benefited from UN competence and experience in such trials, from its international impartial position, while leaving Iraqis, and possible judges from Arab or other countries to participate actively in the creation and proceedings of the court. It would have avoided any appearance of ‘victors’ justice’ over Saddam’s Ba’ath party and supporters and revenge over the vanquished. The objection was again the U.S. rejection of any UN participation, a UN accused of having sided with the opponents to the U.S. intervention in Iraq. An important bone of contention between the UN and the Iraqis (and the Americans) was the death penalty. The Iraqis and the United States had the death penalty in their criminal legislation, although the United States had suspended capital punishment in Iraq while the Coalition Provisional Authority ruled the country. The Iraqis considered that no less punishment than death could be meted out to Saddam Hussein and his associates, if convicted of crimes. The UN policy, supported by the European Union, is to bar the death penalty, which was kept out of the statutes of all UN-created international or mixed national-international tribunals. The Rome Statute of the International Criminal Court also excluded the death penalty from its punishments. From a human rights perpective, the death penalty constitutes a cruel and inhuman punishment. The UN Security Council unanimously adopted resolution 1483 on 22 May 2003, affirming the ‘need for accountability for crimes and atrocities committed by the previous Iraqi regime’, and appealing to

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‘Members States to deny safe haven to those members of the previous Iraqi regime who are alleged to be responsible for crimes and atrocities and to support actions to bring them to justice’. However, no further action was taken by the Council to determine how these alleged criminals would be judged. For its part, the UN leadership specifically prohibited UN personnel, including judges and prosecutors working for international tribunals, from providing any assistance to the Iraqi judicial process, because of the issue of the death penalty.4 The new Iraqi authorities, with strong endorsement by the United States, and the support of the Iraqi population, chose the option of an Iraqi Tribunal, without reference to the UN, run entirely by Iraqi prosecutors and judges, mainly under Iraqi criminal law and procedure. They left themselves open to two charges: that of a Tribunal initiated and led by the Americans, and that the Iraqi judiciary was weak and without any experience of ‘fair and independent justice’ at national level, and devoid of any experience of carrying out a trial under the strictures of international justice standards. The Iraqi Revolutionary Court, the State Security Court and Special Provisional Court of the Saddam Hussein era had been instruments of repression, and other civil and criminal courts were subject to state interference.5 As in many other countries with a one-party regime, convictions were typically based on confessions, often induced by torture. The Iraqi Special Tribunal (IST) was formally established by the Coalition Provisional Authority (CPA)–appointed Interim Governing Council on 12 December 2003. On 10 December 2003, the U.S.-led CPA had promulgated Order Number 48 in which it explicitly delegated full legislative authority to the Governing Council for that purpose.6 Following the formal transfer of sovereignty to Iraqi authorities, in August 2005, the Statute of the Tribunal was revoked by Iraq’s Transitional National Assembly and replaced by an amended Statute that renamed the Special Tribunal as the High Tribunal. This enactment proved legally defective due to a failure to follow the proper legislative process and was therefore re- debated and re- enacted in September 2005. The new law, Law No. 10 of 2005, was promulgated in the Official Gazette on 18 October, only one day before the beginning of the first trial heard by the Iraqi Tribunal, the Dujail trial.7 The October amendments gave greater reliance upon Iraqi criminal laws and procedures and less on international standards, and less guarantees concerning the removal of judges or prosecutors than in the first Statute, and curtailments of the rights of the accused.8

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The Statute of the tribunal The Statute of the Iraqi Higher Criminal Court Law No. 10 of 2005 gives the following ‘Justifying reasons’ for the establishment of the Tribunal:9 To expose the crimes committed in Iraq from 17 July 1968 until 1 May 2005 [2003] against the Iraqi people and the peoples of the region and the subsequent brutal massacres; To lay down the rules and punishments to condemn after a fair trial the perpetrators of such crimes for waging wars, genocide, and crimes against humanity; To establish a national Supreme Iraqi Criminal Tribunal made up of Iraqi judges with high experience, competence and integrity, with the power to try those criminals; To reveal the truth, and the agonies and injustice caused by the perpetrators of such crimes; To protect the rights of many Iraqis, redress injustices committed against them, and demonstrate heaven’s justice as the Almighty God wants it to be. The Court is to be fully independent. Its main office is in Baghdad. It has jurisdiction over every Iraqi or non-Iraqi resident of Iraq accused of genocide, crimes against humanity, war crimes and violations of listed Iraqi laws, committed between 17 July 1968 and 1 May 2003 in Iraq and elsewhere (Articles 1 and 2). The definition of the international crimes reflect those codified in the Rome Statute of the International Criminal Court and the Statutes of the International Criminal Tribunals for the Former Yugoslavia and Rwanda (Art. 11, 12, 13). Violations of Iraqi laws include infringing upon the independence of the judiciary, the wastage and squander of national resources and the threat of war or the use of Iraq’s armed forces against an Arab country in accordance with Iraq Law No. 7 of 1958 (Art. 14).10 The Statute includes the principle of individual criminal (command) responsibility. The official position of any accused person does not relieve such person of criminal penal responsibility nor mitigate punishment; such person is not entitled to any immunity in respect to the listed crimes (Art. 15). The conduct of investigations and courtroom proceedings are regulated by the Iraqi Criminal Procedure Law No. 23 of 1971, based on civil law principles and practices, and by the Tribunal’s Rules of Procedure

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and Evidence, modeled on those of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda. The Tribunal has three branches: Judicial Chambers, Public Prosecution and the Administrative Department. The judicial branch includes two trial Chambers and a single Cassation (Appeals) Chamber. Each trial Chamber consists of five judges and the Cassation Chamber has nine judges. A ‘sufficient number’ of Investigative Judges are appointed. Based on the continental model of ‘Juges d’instruction’, they collect evidence, question all relevant parties directly and prepare cases for trial. Their dossiers are relied upon to determine whether indictments should be issued and cases referred to Trial Chambers for prosecution. They act independently as a separate entity of the Court. Trial Chamber judges direct courtroom proceedings, review evidence, call and examine witnesses, issue verdicts and sentence those found guilty. At the appellate level, judges may reverse, revise, set aside or affirm convictions and sentences (Art. 3, 7 and 8). A ‘sufficient number’ of prosecutors are appointed. They elect a Chief Prosecutor and his deputy. Prosecutors participate in investigations and present cases in court proceedings. They act in complete independence (Art. 9). Appointments All judges and prosecutors are nominated by the Supreme Juridical Council subject to approval by the Council of Ministers (Art. 4.3). The President of the Court is selected for a term of one year by a Committee composed of five judges and public prosecutors. The Presidency Council, in accordance with a proposal from the Council of Ministers has the right to transfer judges and public prosecutors from the Court to the Higher Judicial Council. The term of office of a judge or a prosecutor ends if he is convicted of a non-political felony, if he presents false information or if he fails to perform his duties without a legitimate reason. The Statute provides for a two-stage judicial procedure which would culminate in a recommendation to the Council of Ministers for the issuance of an order by the Presidency Council to terminate the services of a judge or a prosecutor (Art. 4.4, 4.5 and Art. 6).11 No member of the Ba’ath Party may be appointed as a judge, investigative judge, public prosecutor, an employee or any personnel of the Court (Art 33). The Administration Department is responsible for the administrative, financial and service affairs of the Court and of the Public Prosecution

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(Art. 10). It also provides support to defence counsels through a Defence Office. All judges, prosecutors and other staff must be Iraqi nationals. However, non-Iraqi judges may be appointed by the Council of Ministers, if deemed necessary, in the event that a State is one of the parties in a complaint. The Chief Investigative Judge, after consulting with the President of the Court, has the right to appoint non-Iraqi national experts to assist the Investigative Judges.12 Similarly, the Chief Prosecutor, in consultation with the President of the Court, may appoint non-Iraqi personnel as experts to help the public prosecutors (Art. 3.3, 7.2 and 8.9). Another international element in the Statute is that to interpret the application of the international crimes – genocide, crimes against humanity and war crimes – the Cassation Court may resort to the relevant decisions of the international criminal courts (Art. 17.2). Budget: The Tribunal had been initially financed and set up by the United States. The United States had paid for the building, the U.S. Regime Crimes Liaison Office (RCLO) had led the administration, maintained the evidence and all defendants had been kept in U.S. custody – the last defendant was transferred to Iraqi custody in November 2008. Funding is now borne by the Iraqi State Budget, in accordance with Article 34 of the Statute. The CPA originally allocated $75 million for the Tribunal’s establishment. Eventual annual costs are estimated at $138 million.

The trials Dujail, the first trial, in which Saddam Hussein was the main defendant, began in October 2005 and ended in December 2006. The Anfal trial started in June 2006 and ended in June 2007. The third Intifada trial began in August 2007 and ended in December 2008. Other trials are still in progress. The Dujail trial – 19 October 2005/26 December 2006 On 8 July 1982, there was an assassination attempt against thenPresident Saddam Hussein during a visit to Dujail.13 In retaliation, Dujail was the object of a widespread and systematic attack in which nearly 800 men, women and children were detained to internal exile in South Iraq. Another 148 male detainees were referred to trial before the Revolutionary Court, and were convicted and sentenced to death in 1984 after a summary trial. Most of them were executed in 1985. Large

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swathes of agricultural land and some homes in Dujail were confiscated by the government and bulldozed. Saddam Hussein and seven other former high officials were accused of having ordered and overseen the killings in Dujail, and charged with crimes against humanity. The following senior defendants were sentenced to death and executed:14 Saddam Hussein al-Majid al-Tikriti, President of Iraq. On 5 November 2006, he was sentenced to death by hanging. On 26 December, the Appeals Chamber confirmed the sentence, and he was executed on 30 December 2006. Taha Yassin Ramadan, Vice-President. On 5 November 2006, he was sentenced to life in prison. On 26 December, the Appeals Chamber considered that the sentence was too mild and sent the case back to the Trial Chamber for a new decision. On 12 February 2007, the Trial Chamber sentenced him to death by hanging, and he was executed on 20 March 2007. Barzan Ibrahim Hassan al-Tikriti, Director of General Intelligence. On 5 November 2006, he was sentenced to death by hanging. On 26 December the Appeals Chamber confirmed the death sentence. He was executed on 15 January 2007. Awad Hamed al-Bandar, Chief Justice of the Iraqi Revolutionary Court. On 5 November 2006, he was sentenced to death by hanging. On 26 December, the Appeals Chamber confirmed the death sentence and he was executed on 15 January 2007. The following Ba’ath Party officials were sentenced to 15 years in prison on 5 November 2006, and their sentences were confirmed by the Appeals Chamber on 26 December 2006: Ali Daeem Ali, Mezhar Abdullah Ruaid and Abdullah Kadhem Ruaid. Mohammed Azzam al-Ali, a lower-level Ba’ath Party official, was acquitted on 5 November 2006. This first trial was marked by confusion and tensions, fueled by interruptions and suspensions in the hearings, in a general climate of insecurity. At least five persons working for the Court, including an investigative judge and the chief of security, were killed before the opening of the trial. Three defence lawyers were murdered. Saddam Hussein was defiant, insulted the judges, demanded adjournments, staged a walk- out with his co- defendants and started a hunger strike. Political pressures by the government and fierce public criticism of the Court and of its judges by senior government officials occurred

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regularly. Presiding Judge Abdullah al-Amiri was removed by the Council of Ministers on 19 September 2006, for comments allegedly showing leniency or bias towards Saddam Hussein.15 In January 2006, Judge Rizgar Amin resigned, claiming that he was subject to unacceptable pressure. In its conclusion, Human Rights Watch’s exhaustive report of 2006 on this first trial documented the following serious procedural flaws in the Tribunal’s conduct of the trial: ●

●

●

●

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government actions that undermined the independence and perceived impartiality of the court; a failure to ensure adequately detailed notice of the charges against the defendants; numerous shortcomings in the timely disclosure of incriminating evidence, exculpatory evidence and important court documents; violations of the defendants’ basic fair trial right to confront witnesses against them; and lapses of judicial demeanour that undermined the apparent impartiality of the presiding judge.

Due to a basic lack of understanding of fundamental fair trial principles on the part of the court, the trial did not meet key fair trial standards. The report recommended a revision of the court’s structure to ensure international participation at all levels. William Schabas asserts that imposition of the death sentence, given the shortcomings in the trial, was a breach of international human rights law. ‘Any significant shortcoming, such as a defect in independence or impartiality of the judiciary is enough to impugn a death sentence’.16

The Anfal trial – 21 August 2006/4 September 2007 The Anfal (meaning ‘the Spoils’ in Arabic) was a military campaign which began in 1986 and lasted until 1989, featuring the use of conventional and chemical warfare against the Kurdish population. Over 100,000 people were killed and 4,000 villages were burned down. Human Rights Watch categorized the Anfal as a genocide against part of the Iraqi Kurdish population in North Iraq.17 The trial, which started on 21 August 2006, was conducted before the five judges of Trial Chamber Two. The defendants were referred to the Tribunal for their alleged roles in planning, authorizing and executing the 1988 Anfal campaign. Their

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former functions and sentences,18 rendered on 24 June 2007, are given below. Saddam Hussein al-Majid al-Tigrid: all legal proceedings against him were halted after his execution on 30 December 2006, following his sentence in the first trial. Ali Hassan al-Majid al-Tikriti, Saddam Hussein’s cousin, alleged architect of the Anfal campaign, Secretary General of the Arab Ba’ath Socialist Party’s Northern Bureau from March 1987 to April 1989, with authority over all state agencies in the Kurdish region during this period. Death by hanging. Sultan Hashem Ahned Al-Ta’I, former commander of the Army First Corps, which was based in northern Iraq and involved in several, but not all, of the eight Anfal operations. Also former Army Chief of Staff, and former Minister of Defence 1995–2003. Death by hanging. Tahir Tawfiq al-‘Aani, former Governor of Mosul during the Anfal campaign, Ba’ath party official. Charges dropped for lack of evidence. Sabir Abd al-Aziz al-Douri, former general director of Iraq’s Military Intelligence Service. Life imprisonment. Fahran Mutlaq al-Jabouri, former director of the Military Intelligence Service of the northern and later eastern region. Life imprisonment. Hussein Rashid al-Tikriti, Army Deputy Chief of Staff for Operations during the Anfal campaign. Death by hanging. Charges included genocide, crimes against humanity, war crimes and wilfully killing another person using toxic substances or explosives. All defendants pleaded not guilty on all counts. With the exception of Sabir al-Douri, who apologized to the Iraqi people and to the Anfal victims, the defendants maintained that they had done their duty to the nation.19 On 4 September 2007, its Appellate Chamber found that the Trial Chamber had ‘found the right reasons for their decisions’ and decided to approve them and reject the appeals. Following Saddam Hussein’s execution on 30 December 2006, the Anfal trial proceeded more calmly, without tension and without attracting any more media interest. Jennifer Trahan20 finds that ‘the Trial Chamber crafted a fairly well done ... judgment supported by the evidence’. However, the judges did not seriously address the fair trial issue, and they should have analyzed individual criminal responsibility more carefully. She adds that ‘By contrast, the Cassation [Appeal] Chamber judgment appears so flawed that

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it raises the issue of whether serious review was intended or attempted, or whether the Cassation Chamber may have, in effect, been acting politically and not as a judicial review chamber’. Professor Michael Scharf considered that the biggest flaw of the Tribunal has been the outside influence of the Prime Minister and the Presidential Council.. For another observer, the United States had also interfered with the judicial process.21

The Intifada trial – 21 August 2007/1 December 2008 This third trial against former regime officials relates to the aftermath of the 1991 Gulf War, in which the United States drove Iraqi forces from Kuwait. Shiites in the South and Kurds in the North sought to take advantage of the defeat, launching uprisings and seizing control of 14 of the country’s 18 provinces. U.S. troops created a safe haven for the Kurds in the North, preventing Saddam Hussein from attacking, but his troops marched into the predominantly Shiite South and crushed the uprising, killing tens of thousands of people. The trial began on 21 August 2007, with 15 defendants charged with crimes against humanity in the Maysan and Basrah provinces. The 15 defendants were former high-level members of the former regime and key military and Ba’ath Party officials, including ‘Chemical Ali’ (Ali Hassan al-Majid al-Tikriti), already sentenced to death in the Anfal Trial. The prosecution’s closing arguments were heard on 3 September 2008, and the defendant’s closing arguments were made on 19–23 October. On 2 December, the IHT sentenced Ali Hassan al-Majid (already sentenced to death in the Anfal Trial) and Abdul Ghani Abdul Ghafour to death. Former minister of defense Sultan Hashim Ahmad al-Tai was sentenced to 15 years (al-Tai already had been sentenced to death for his role in Anfal).22 The sentences were submitted for appellate review. Four defendants received life sentences, Sultan Hashim and five others were sentenced to 15 years imprisonment and three defendants were acquitted of all charges. The events in other provinces involving the 1991 Intifada were still under investigation in 2009 and have yet to be referred to trial.

Other trials On 29 April 2008, the Tribunal began its fourth trial, the merchants’ case, where in 1992 the former regime blamed merchants for shortages and high prices. At that time a ‘Special Court’ was convened and 42

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merchants brought before the court were convicted and executed within a matter of hours. The eight defendants included former Deputy Prime Minister Tareq Aziz, who was the public diplomatic face of the regime. He surrendered to U.S. forces on 24 April 2003. On 11 March 2009, Aziz was found guilty of crimes against humanity and sentenced to 15 years imprisonment. He was acquitted two weeks earlier of playing a role in the killings of Shi’a Muslims in 1999. On 2 August 2009, he was sentenced to seven years in jail for his role in the forced displacement of Kurds from northeastern Iraq. In the same fourth Trial, two of Hussein’s halfbrothers, Watban Ibrahim al-Hassan and Sabaawi Ibrahim al-Hassan, received a death sentence, and Ali Hassan al-Majid al-Tikriti, ‘Chemical Ali’, was sentenced to 15 years. Majid had received a death sentence in the Anfal Trial and another one in the Intifada Trial.23 On 21 July 2008, the Tribunal began its fifth trial, the Friday Prayers trial, involving the 1999 Shi’a protests following the killing by Saddam’s agents of the Shi’a leader and father of Muqtada, Mohamed Sadiq al-Sadr. The protests in Baghdad, Maysan, Basrah and Muthanna were brutally quashed by the 3rd and 4th Iraqi Army Corps, overseen by Ali Hassan al-Majid. Fourteen defendants were tried and they were sentenced on 2 March 2009. Among them, Ali Hassan al-Majid was found guilty of jointly committing premeditated killing, a crime against humanity. Tareq Aziz was acquitted in this trial. Two additional cases were referred to the trial chamber. The Halabja case, which includes five defendants and began on 21 December 2008, involves the chemical attacks on the Kurdish town of Halabja that resulted in the death of over 5,000 civilians. On 28 December, the trial of 25 defendants who are part of the former regime and were allegedly involved in the persecution of DAWA party members began. In addition to the two new trials in December, three additional cases started in 2009. These cases are the Fayli Kurd case, the Ethnic Cleansing case and the Barzani Clan case.24

Conclusion Could the Iraqi High Tribunal be considered as a new legal model for judging international crimes? Applying national rather than international justice in the case of Iraq was not one option among many others for the deciders; both the United States and the new Iraqi leaders and the Iraqi population favoured this option, which eliminated ab initio all international models: the international criminal tribunals for the Former Yugoslavia and for Rwanda, the hybrid national-international courts for

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Sierra Leone, East Timor, Cambodia and Lebanon and the International Criminal Court. Even the Cambodian Extraordinary Chambers, with a strong national component – a majority of Cambodian judges and a Cambodian Chief Prosecutor – were not retained as a model. Benefits The major benefit is that most of the Iraqi officials responsible for war crimes, crimes against humanity and genocide are being tried publicly in a judicial process. The benefits of a national court are clear. Iraqi leaders were tried by Iraqi judges in an Iraqi court, in their language. There can be no charge of a bias against Iraqis by foreign courts and judges. The audiovisual media gave a wide exposition to the trials. Most of the former regime’s leaders, Saddam Hussein and his direct associates, have been, or will be, tried. The Statute of the Tribunal had international components: the definition of international crimes reflect those in the Rome Statute of the International Criminal Court. The legitimacy of the Iraqi Tribunal has been linked to Articles 1 and 17 (a) of the Rome Statute; the International Criminal Court is complementary to national criminal jurisdictions, and the Court determines that a case is inadmissible where ‘the case is being investigated by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution’. Another benefit is that Iraqi judicial personnel were able to acquire and familiarize themselves with the application of criminal justice on international crimes. However, they did not have the added advantage of hybrid courts to work side by side with international judges and prosecutors, more versed in those practices. More basically, a judicial treatment of the former regime leaders was preferable to arbitrary summary executions: justice, even if imperfect, was favoured over raw vengeance. As other criminal courts, the Iraqi Tribunal is providing a useful record of recent Iraqi history, and of the crimes committed. Criticisms These are addressed first to the role of the United States in creating the Tribunal. It was established during a military occupation considered by many States as illegal under the UN Charter. The Iraqi Governing Council, which approved the Statute, was appointed by a U.S. official, the Administrator of the U.S.-led Coalition of the Provisional Authority. The Tribunal is composed of judges who have been selected during the

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occupation. The Tribunal was initially financed by the United States, which maintained custody over the accused. Victors’ justice was applied insofar as the accused were Iraqi leaders whose forces had been defeated by the U.S.-led Coalition. They were also Ba’athists whose political group had been dissolved by the U.S. occupation: Article 33 of the Tribunal prohibits any person who belonged to the Ba’ath Party from holding any position within the Court, a political discrimination imposed by the ‘victors’, the United States and the new Iraqi regime. As a limit to the claimed ‘full independence’ of the Tribunal (Art. 1.1 of its Statute), Art. 4.4 allows the Presidency Council, in accordance with a proposal from the Council of Ministers, to transfer Judges and Public Prosecutors from the Court to the Higher Judicial Council, in effect removing them from their functions in the Tribunal. During the Dujail Trial, the Minister of Justice denounced Judge Rizgar Amin as ‘weak’ and demanded his resignation; he resigned in January 2006. The Presiding Judge in the Anfal Trial, Abdullah alAmiri, was removed by the Council of Ministers in September 2006 under Article 4.4 on the grounds that he was biased in favour of Saddam Hussein. 25 Prime Minister Nuri al-Maliki said publicly on 6 January 2007 (after Saddam Hussein’s execution on 30 December 2006) that Saddam Hussein did not deserve a fair trial and that his hanging was a domestic affair carried out for the purpose of Iraqi unity. He added that criticisms of the execution were tantamount to ‘inciting sedition’ and constituted ‘flagrant interference in the internal affairs of Iraq’. These remarks were criticized by Human Rights Watch. 26 Another intervention in the judicial process by the executive occurred in March 2009 when Iraq President Jalal Talabani, a Kurd, and VicePresident Tareq al-Hashemi, a Sunni Arab, opposed a Tribunal decision in the Anfal Trial, the execution of Sultan Hashem and Hussein Rashid Muhammed, arguing that the military men were following orders, against the opposition of Prime Minister al-Maliki.27 On 6 November 2006, Leandro Despouy, Special Rapporteur on the Independence of judges and lawyers of the UN Human Rights Council questioned, in part, the Tribunal’s legitimacy and credibility in view of the U.S. involvement in its creation.28 Among his other objections: ●

The restricted personal jurisdiction of the tribunal, which enables it only to try Iraqis;

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Its limited temporal jurisdiction. The competence of the tribunal includes neither the war crimes committed by foreign troops during the first Gulf War (1990), nor the war crimes committed after 1 May 2003, date of the beginning of the occupation; The fact that [its] Statute contains advanced provisions of international criminal law which are to be applied in combination with an outdated Iraqi legislation, which allows the death penalty; The negative impact of the violence and the insecurity prevailing in the course of the trial and in the country.

A group of Experts29 drew a few useful lessons from the Dujail Trial in October 2006, implying criticisms of the Iraqi Tribunal, lessons which are still valid four years later. Among them: 1. Lesson #1: There should be a presumption against undertaking domestic war crimes trials in countries languishing in a conflict environment. 2. Lesson #2: Post- conflict countries that do undertake domestic war crimes trials need unbiased international assistance. 3. Lesson #3: Steps should be taken to further internationalize the Iraqi High Tribunal. 4. Lesson #4: Steps should be taken to strengthen the independence of the Iraqi High Tribunal. In our view, the United States and the new Iraqi authorities were right in establishing the High Tribunal and in starting the trial of senior Iraqi leaders. The immediate need was to substitute a judicial process to summary executions and raw vengeance. However, the implementation of this process met with severe problems, in view of the climate of insecurity and violence. The flaws in the Statute, the lack of experience of the judges in the conduct and procedures of trials related to international crimes and the political authorities’ undue interventions, have already been shown. No doubt, the Tribunal would have benefited from international assistance; however, this would have required the abolition of the death penalty, a prerequisite for such international assistance, an unlikely prospect. With these reservations, some of the benefits of the trials should not be dismissed.At least, those mainly responsible for atrocities and massacres are not enjoying impunity; they are being tried and sentenced in a judicial process, however imperfect.

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11 The Delayed Trial of Hissène Habré

President Hissène Habré, an African dictator, ruled Chad from 1982 until 1990, with the support of the United States and France, among other states. He was arrested in Senegal on 15 November 2005. His oneparty regime was accused of widespread atrocities, including torture. An international arrest warrant of 2005 issued by an Belgian judge charged him with crimes against humanity, war crimes and torture. Although the President of Senegal agreed in 2006 to prosecute Habré in Senegal, by August 2010 he had not yet been tried by a Senegalese court. The legal case against Habré promoted by human rights organizations was based on the universal jurisdiction principle previously used in the case of the Chilean dictator, Agusto Pinochet. The case is also a test for national justice and the values of accountability of political leaders: will an African dictator in exile be fairly judged by Africans in an African country and court of law?

Background Hissène Habré took power in 1982, overthrowing the government of Goukouni Wedeye. He was deposed in 1990 by President Idriss Déby Itno, who himself came to power through a military coup, but won an election in 1996. Habré fled Chad for Senegal where he lives in luxury under the protection of the Senegalese authorities. He is said to have fled Chad with more than $11 million.1 In 1992, a Chadian Truth Commission set up by his successor accused Habré’s regime of some 40,000 political murders and systematic torture.2 The greater part of these abuses had been carried out by Habré’s political police, the Documentation and Security Directorate (DDS), who reported directly to Habré. The Chadian Commission recommended taking legal 264

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action against the perpetrators of the atrocities, but the current government of Chad has never requested the extradition of Habré from Senegal nor has it taken legal action against his accomplices left in Chad. According to Trial Watch, the United States and France both supported Habré as a bulwark against the Libyan leader, Muammar Gaddafi, who had territorial designs on the north of Chad. Habré’s rise to power was assisted by U.S. covert CIA paramilitary support. The United States subsequently gave Habré massive military aid, trained and gave the DDS arms and financial assistance. France also gave strong assistance to Habré on his coming to power, by providing him with arms, logistical help and intelligence, and by launching the military operations ‘Mantra’ (1983) and ‘Epervier’.3

The legal moves In January 2000, 17 victims, including torture victims, lodged criminal complaints in Senegal for torture, murder and ‘disappearance’ against members of the DDS. The torture charges were based on the Senegalese statute on torture and on the 1984 UN Convention against Torture which Senegal had ratified in 1987. The action was spearheaded by the Chadian Association of Victims of Political Repression and Crime (AVCRP), created after Habré’s fall, and representing 792 victims of the regime.4 With the support of other NGOs and individuals, the Chadian Association also cited Senegal’s obligations under customary international law to prosecute those accused of crimes against humanity. In the court papers presented to the Senegalese investigating judge (juge d’instruction) Demba Kandji, the group provided details of 97 political killings, 142 cases of torture, 100 disappearances and 736 arbitrary arrests, mostly carried out by the DDS, as well as a 1992 report by a French medical team on torture under Habré, and the Chadian Truth Commission report. On 3 February 2000, Judge Kandji called in Habré and indicted him on charges of being an accomplice to torture and placed him under house arrest. It was the first time that an African leader had been charged with atrocities by the court of another African country. Habré’s lawyers moved to have the case dismissed, arguing that Senegalese courts had no jurisdiction over crimes committed in Chad and that the prosecution was barred by the statute of limitations. Politics then intervened, reversing the previous position of Senegal. In March 2000, Abdoulaye Wade was elected President of Senegal,

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replacing Abdou Diouf. Madické Niang defended Wade while Wade was in the opposition, and was Habré’s lawyer from 1979 to 2001. He became legal adviser to Wade the day after Wade’s election, and was appointed as Minister of Justice in April 2008. On 4 July 2000, the Indicting Chamber dismissed the charges against Habré, ruling that Senegal had not enacted legislation to implement the Convention against Torture and therefore had no jurisdiction to pursue charges that Habré was guilty of massive torture because the crimes were not committed in Senegal. The Superior Council of the Magistracy, presided over by President Wade and his minister of justice, had removed Judge Demba Kandji from his post. The Cour de Cassation, Senegal’s court of final appeals, upheld the ruling on 20 March 2001, holding that Habré could not stand trial in Senegal for crimes allegedly committed elsewhere because Senegal had not incorporated the provisions of the Convention against Torture into its code of criminal procedure. The Court wrote that no text of procedure recognized a universal competence to Senegalese jurisdictions with a view to prosecute and judge, if found in Senegal, the presumed authors or accomplices of torture when these facts have been committed outside Senegal by foreigners, and that the presence of Habré in Senegal could not by itself justify prosecutions against him.5 Meanwhile, in Chad, on 27 September 2000, President Idriss Déby met with leaders of the Association and assured them that he would support their charges, even against former officers of the DDS who still worked for Chad’s administration. On 26 October 2000, 17 victims lodged criminal complaints to the N’Djaména District Court in Chad itself for torture, murder and disappearances against specific members of the political police that operated during Habré’s regime. This action was also led by the AVCRP. Its President, Jacqueline Moudeina, a lawyer, was the victim of an attempted murder by an accused policeman in Chad in 2001.6 In April 2001, President Wade made a public declaration that he had given Habré one month to leave Senegal. The victims then appealed to the United Nations Committee against Torture (CAT) which requested Senegal on 27 April 2001 ‘not to expel Mr Hissène Habré and to take all necessary measures to prevent Mr Hissène Habré from leaving the territory of Senegal except pursuant to a request for extradition’.7 Following an appeal by the UN Secretary- General, Kofi Annan, President Wade stated in September 2001 that he had agreed to hold Habré in Senegal pending an extradition request from a country such as Belgium capable of organizing a fair trial. Wade reaffirmed this pledge in a meeting with Human Rights Watch in May 2002.

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The Belgian connection Following Senegal’s initial dismissal of the case, in November 2000 another group of victims filed a case against Habré in Belgium, to create the possibility of extraditing him to stand trial there. Twenty- one victims, including three Belgian citizens, were plaintiffs in that action before judge Daniel Fransen of the Brussels District Court. Belgium law of 16 June 1993 expressly incorporated the principle of ‘universal jurisdiction’ – that every state may bring to justice the perpetrators of particular crimes of international concern, such as genocide, crimes against humanity or war crimes, torture and no matter where the crime was committed, and regardless of the nationality of the perpetrators or of the victims. The original Universal Jurisdiction Law was repealed in August 2003 under strong U.S. pressure and threats, but the Habré case was not affected as the investigation had already begun and because there were Belgian plaintiffs.8 In February and March 2002, Judge Fransen started investigations in Chad with a Belgian State Prosecutor and four policemen, collecting evidence of crimes. In October 2002, the government of Chad told the judge that it would waive any immunity that Habré might seek to assert. On 19 September 2005, Judge Fransen issued an international arrest warrant against Habré. The same day, Belgium asked for Habré’s extradition from Senegal. The African Union and the UN Committee against torture Habré was arrested in Senegal on 16 November 2005. On 25 November, the Indicting Chamber of the Court of Appeals of Dakar ruled that it had no jurisdiction to rule on an extradition request against a former head of state. On 26 November, the Interior Minister of Senegal issued an order placing Habré ‘at the disposition of the President of the African Union’. At its January 2006 summit, the African Union set up a Committee of Eminent African Jurists (CEAJ) to consider the options available for Habré’s trial, taking into account, inter alia, ‘adherence to the principles of total reject of impunity’, ‘international fair trial standards including the independence of the judiciary and impartiality of proceedings’, ‘efficiency in terms of cost and time of trial’, ‘accessibility to the trial by alleged victims as well as witnesses’ and ‘priority for an African mechanism’.9 On 26 January 2006, a Belgian minister stated that ‘in the case of a refusal to extradite, Belgium will request application of article 30 of the Convention against Torture of 10 December 1984’. In the case of failure

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of the negotiations between Belgium and Senegal, Belgium would submit the dispute to the International Court of Justice.10 In a decision of 19 May 2006, the UN Committee Against Torture concluded that Senegal had violated the UN Convention against Torture by failing to prosecute or extradite Habré. The Committee called on Senegal ‘to submit the present case to its competent authorities for the purpose of prosecution or, failing that, since Belgium has made an extradition request, to comply with that request, or, should the case arise, with any other extradition request made by another State, in accordance with the Convention’.11 In its report to the July 2006 Summit of the African Union, the CEAJ noted: ‘Since Habré is within its territory Senegal should exercise its jurisdiction over him. As a State party to the Convention Against Torture, Senegal is under an obligation to comply with all its provisions’. It concluded that ‘Senegal is the country best suited to try Habré as it is bound by international law to perform its obligations’.12 On 2 July 2006, the African Union noted that the crimes alleged against Habré were within the competence of the organization, but that, for the present, the African Union had no judiciary body able to judge Habré. It decided to consider the Habré file as a dossier of the Union and called on Senegal to prosecute Habré ‘in the name of Africa’ by a competent Senegalese jurisdiction with guarantees of a fair trial (African Union, 2006). President Wade declared that Senegal would do so. In November 2007, Senegal representatives told the UN Committee against Torture that it was prepared to try Habré but that it needed international funding. The European Union, Belgium, France, Switzerland and The Netherlands had already agreed to help fund the tribunal. No contributions were offered by the African Union. The European Union had sent a mission to Senegal in January 2007 to determine what was needed for the trial, and proposed that Senegal define a prosecution strategy, work according to a precise calendar, and name an administrative and financial coordinator for the trial. President Wade had appointed the former coordinator of Habré’s legal team, Madické Niang, as Minister of Justice. In this post, he is responsible for the organization of the trial. On 30 January 2008, the National Assembly adopted a law allowing Senegalese jurisdictions to prosecute cases of genocide, crimes against humanity and acts of torture, even if committed outside the Senegalese territory. On 8 April 2008, the National Assembly adopted an amendment to its Constitution introducing an exception to the non-retroactivity of criminal law for the crime of genocide, war crimes and crimes against humanity.13

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In May 2008, the Minister of Justice announced a budget of 18 billion CFA (approximately $43 million) and the appointment of Ibrahima Gueye, President of the Court of Cassation (the highest judiciary court) as coordinator of the trial. Three investigating judges were appointed. Judges would be appointed by an expert committee consisting of ten Senegalese magistrates and two magistrates appointed by the European Union. Habré Sentenced to Death in Absentia in Chad In an unexpected development, it was announced on 18 August 2008 that Hissène Habré and 11 leaders of a Chadian armed rebellion had been sentenced by a Criminal Court in N’Djamena to death in absentia for harming the constitutional order and the integrity and security of the territory. The International Federation for Human Rights (FIDH) immediately responded that this judgment applied to charges against Habré’s association with rebel movements who attacked N’Djamena in February 2008. This was not connected with the charges against him for which he is being prosecuted in Senegal: crimes against humanity, torture and other atrocities committed during his presidency in Chad from 1982 to 1990. In consequence, the judgment in Chad could not affect in any way Senegal’s obligations to prosecute Habré in accordance with its international commitments and the mandate of the African Union.14 Belgium’s new proceedings On 19 February 2009, Belgium instituted proceedings against Senegal before the International Court of Justice, on the grounds that a dispute exists ‘between the Kingdom of Belgium and the Republic of Senegal regarding Senegal’s compliance with its obligation to prosecute’ the former President of Chad, Hissène Habré, ‘or to extradite him to Belgium for the purposes of criminal proceedings’.15 In its Application, Belgium maintains that Senegal, where Habré has been living in exile since 1990, has taken no action on its repeated requests to see the former Chadian President prosecuted in Senegal, failing his extradition to Belgium, for acts including crimes of torture and crimes against humanity. Between 30 November 2000 and 11 December 2001, a Belgian national of Chadian origin and Chadian nationals filed complaints in the Belgian courts. Belgium recalled that, since the end of 2001, its competent legal authorities have addressed numerous writs for judicial investigations to Senegal, and, in September 2005, issued an international arrest warrant against Habré on which the Senegalese

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courts did not see fit to take action. Belgium contended that under conventional international law, ‘Senegal’s failure to prosecute Mr. H. Habré, if he is not extradited to Belgium to answer for the acts of torture that are alleged against him, violates the UN Convention against Torture of 1984, in particular Article 5, paragraph 2, Article 7, paragraph 1, Article 8, paragraph 2, and Article 9, paragraph 1’. It added that, under international custom, ‘Senegal’s failure to prosecute Mr. H. Habré, or to extradite him to Belgium to answer for the crimes against humanity which are alleged against him, violates the general obligation to punish crimes against international humanitarian law which is to be found in numerous texts of derived law (institutional acts of international organizations) and treaty law’. Belgium stated that ‘both States have been parties to the United Nations Convention against Torture of 10 December 1984’ since 21 August 1986 (Senegal) and 25 June 1999 (Belgium). Article 30 of the Convention provides that any dispute between two States parties concerning its interpretation or application which it has not been possible to settle through negotiation or arbitration may be submitted to the ICJ by one of the States. Belgium contended that negotiations between the two States ‘have continued unsuccessfully since 2005’ and that it reached the conclusion that they had failed on 20 June 2006. Belgium states, moreover, that it suggested recourse to arbitration to Senegal on 20 June 2006 and notes that the latter ‘failed to respond to that request ... whereas Belgium has persistently confirmed in Notes Verbales that a dispute on this subject continues to exist’. Belgium requested the Court to adjudge and declare, in part, that ‘the Republic of Senegal is obliged to bring criminal proceedings against Mr. H. Habré for acts including crimes of torture and crimes against humanity which are alleged against him as author, co-author or accomplice; failing the prosecution of Mr. H. Habré, the Republic of Senegal is obliged to extradite him to the Kingdom of Belgium so that he can answer for his crimes before the Belgian courts’. Belgium also submitted a request for the indication of provisional measures. It explained that while ‘Mr. H. Habré is [currently] under house arrest in Dakar ... it transpires from an interview which the President of Senegal, A. Wade, gave to Radio France International that Senegal could lift his house arrest if it fails to find the budget which it regards as necessary for the organization of the trial of Mr. H. Habré’. Belgium emphasized that ‘in such an event, it would be easy for Mr. H. Habré to leave Senegal and avoid any prosecution’, which ‘would cause irreparable prejudice to the rights conferred on Belgium by

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international law [and] would violate the obligations which Senegal must fulfil’. Consequently, Belgium requested the Court ‘to indicate, pending a final judgment on the merits’, provisional measures requiring the Respondent to take ‘all the steps within its power to keep Mr. H. Habré under the control and surveillance of the judicial authorities of Senegal so that the rules of international law with which Belgium requests compliance may be correctly applied’. On 9 April 2009, Senegal made the solemn commitment, before the Court, to maintain Habré on its territory until the Court rendered a decision on the substance of Belgium’s complaint against Senegal. This commitment was accepted by Belgium. On 28 May 2009, taking note of the assurances given by Senegal, the Court found that the risk of irreparable prejudice to the rights claimed by Belgium was not apparent on that date, and concluded that there did not exist, in the circumstances of the present case, any urgency to justify the indication of provisional measures by the Court.16

Interim conclusion The prosecution of Hissène Habré is not progressing. There are two parallel processes, leaving aside the 2008 Chad condemnation of Habré to death in absentia, for events unrelated to the charges being prosecuted in Senegal. One is the trial of Habré by a Senegalese criminal court. While victims lodged their first complaints in January 2000, the trial had not started nine years later. Legal and constitutional hurdles had to be overcome. They were solved but slowly; following an initial rejection of the complaints by Senegal’s Court of Cassation in 2001, the National Assembly finally adopted a law in January 2008 allowing Senegalese jurisdictions to prosecute cases of crimes against humanity and acts of torture even if committed outside Senegal’s territory, followed by an amendment to the Constitution in April 2008. These slow legal moves, and hesitant implementation measures, seemed to be caused by the lack of political will to deal promptly with the case by President Wade and other Senegalese authorities. Although Senegal is regarded as having one of the few independent judiciaries in Africa, there have been allegations of direct political interference in the handling of the case, as shown by the removal of Judge Demba Kandji. Besides undocumented allegations of financial interests linking Habré to Senegalese senior officials, the Senegalese government

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may also be reluctant to allow the prosecution of the former head of state of another African country out of a feeling of solidarity among African leaders, and the possible fear that such a process would create a precedent and develop into a pattern, leaving political leaders without their traditional political and judicial immunity. It is unlikely that the move to prosecute Habré would have been possible without the strong and determined support of international and national NGOs. These, led by Human Rights Watch and the International Federation of Human Rights Leagues (FIDH), gave effective assistance to the legal recourse of victims to obtain recognition and, at least, moral reparation for the crimes committed, or allowed to be committed, by Habré. The principal motivation of these international NGOs was to bring to justice those political leaders allegedly responsible for grave violations of international humanitarian and human rights law, that is, to break the long- established impunity system. At the same time these NGOs were intent on having justice applied in Africa, in order to prevent the charge of racial prejudice, justice applied by Westerners on Africans or other third-world leaders. In spite of the delays in this process, they have obtained considerable success in having the African Union first declare, in January 2006, its adherence to the principles of total rejection of impunity and to give a priority for an African mechanism, and, in July 2006, by the African Union call on Senegal to prosecute Habré in the name of Africa. The second process is Belgium’s request for the extradition of Habré under the principle of universal jurisdiction. The doctrine of universal jurisdiction allows or requires national courts to investigate or prosecute persons for crimes committed outside the state’s territory which are not linked to that state by the nationality of the suspect, or of the victim, or by harm to the state’s national interests. It may also involve the right or the obligation to either judge or extradite the suspect to an able and willing state. It thus reinforces the fight against impunity, with the aims of making alleged criminals accountable for their crimes and to give some satisfaction, or even reparations, to victims or their survivors. Customary or conventional international law permits, or, in certain cases, requires states to exercise universal jurisdiction over war crimes, crimes against humanity, genocide and torture. In its Application to institute proceedings against Senegal, Belgium has called on the International Court of Justice to implement the universal jurisdiction requirement of ‘prosecute or extradite’ for alleged crimes of torture and crimes against humanity. This process adds to the

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pressure on Senegal to prosecute Habré, an alternative preferred by the NGOs. A related question may arise if and when a trial starts. For Babacar Sine, one of Senegal’s well-known intellectuals, ‘the case is much more complex than the role of Habré. There is the role of France that supported him. There is the role of the United States that supported him. If we are to judge Hissène Habré, we have to also judge those who supported him’.17 Similar issues have been raised concerning the International Criminal Tribunal for Rwanda – France’s responsibility in supporting the genocidal Hutu government; and the Cambodian Extraordinary Chambers – the support given by China, the United States and others to the Khmer Rouge. These have generally been sidelined by a narrow definition of the courts’ competence. Whatever the relevance of these issues, the focus of the Habré and other trials should be the direct, personal responsibility and accountability of the accused leaders in the crimes committed. Without prejudging the final outcome of the Habré proceedings, President Wade’s stalling does not augur well for the future of trials of African despots by African courts, thought preferable by the African Union to trials by the International Criminal Court.

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Conclusion

The review in preceding chapters, of the work and achievements of international criminal tribunals and of internationalized courts (hybrid, national/international tribunals) shows that international justice is not separate from national and/or international politics, nor immune to their pressures. This is to be expected insofar as these tribunals are created by political decisions of the Security Council or by governments on which they depend for their budgets and for their cooperation, in particular to act as their police to secure custody of suspects, and they operate in a real world of competing political powers. They need the cooperation of governments to operate.

Critics of international justice A major argument of sceptics or opponents to international justice is the fact that international society is still based on national sovereignty, even if it is limited in some areas. Applying and enforcing criminal justice is a traditional prerogative of governments. Can this national prerogative be legitimately transferred to international prosecutors and judges? There is no world government, of which international justice would be one global department, with the backing of an international police and army. The International Criminal Court is not the world’s supreme criminal court; it does not act as an Appeals court over national criminal tribunals. Like all other international jurisdictions, it has no enforcement powers of its own over states. It depends on governments to obtain custody of suspects; it cannot ‘order’ governments to do so. Ministries of Justice are part of national governments, together with Ministries of the Interior and Ministries of Defence. In democratic countries, governments have the legitimacy entrusted to them by their 274

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citizens through periodic elections. The legitimacy of international courts and judges is based on treaties or conventions signed and ratified by governments, and Security Council resolutions. Critics of ‘Hague justice’ also emphasize the politicization of the process, its selectivity and perception of delivering ‘victors’ justice’. They claim that some serious breaches of international standards are being ‘overlooked’, some of the choices are politically motivated and the alleged perpetrators are not facing justice, a charge of double standards. As Jeremy Rabkin1 notes For many centuries, the administration of criminal justice was thought to be the exclusive responsibility of sovereign governments – indeed, a defining attribute of sovereignty. ... An international project, aspiring to universality, does not usually get beyond initial discussions if the world’s foremost military power, and so many other powers, decline to support it. ... And if sovereignty means anything, it means very sharp limits to any serious notion of international criminal justice ... it is very strange to suggest that a court, operating in abstraction from strategic or diplomatic calculation, not to mention in abstraction from force, can make the proper determinations about where and when and how much to invoke its prosecutorial authority. If the international courts are ‘supposed to serve the best interests of humanity as a whole’, how does legal training equip lawyers in The Hague to judge these interests? Rabkin challenges the assertion that the international courts will only enforce the relevant international law. The Prosecutors’ claim that they have no other criterion for decision except what the rules command, is, in his view, ‘ludicrous’, a naïve presumption. He rejects the exaltation of ‘impartiality’ as contrary to the liberal democracy ideals and natural law theory and teaching. Moghalu concurs that national sovereignty is not in decline; there is a multiplicity of nearly 200 sovereignties:2 Globalization of justice for war crimes has failed. The hope for a truly cosmopolitan global justice was based on a predominantly liberal-legalist, and, thus, mistaken interpretation of the Nuremberg trial as a historical event and its legacy in world politics, which led to the unrealistic visions of an all-powerful permanent International Criminal Court. He asserts that international war crimes justice is hegemonic, a fact resented by even weak states, which explains why the pendulum of war

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crimes justice has ‘swung away from unalloyed supranational jurisdiction back to the domestic sphere – or at least a mixture of the two’. For him, ‘In the international sphere, justice is always political, because “there is no formal separation between law and politics in the international society” ’.3 As a substitute and/or as a complement to international justice, the concept of universal jurisdiction allows national courts to try cases of the gravest crimes against humanity, even if these crimes are not committed in the national territory, and even if they are alleged to have been committed by government leaders of other states. Although it exists in limited forms in treaties and the legislation of a few states, there is not yet a body of consistent and accepted judicial practice condoning this concept. Moghalu suggests that ‘it has gone in relative decline’.4 Akhavan5 asks if ‘International Criminal Tribunals [are] a Disincentive to Peace’. He observes that the ‘underlying tension between the pursuit of ideals and the constraints of political reality remains ... while prosecuting heads of state and other leaders is no longer unimaginable, the balance is still firmly on the side of political expedience and submission to powers rather than to justice’. He also recalls that, ‘unlike domestic judicial systems, where prosecutions of serious crimes such as murder or rape is usually not subject to discretion, international judicial systems necessarily must exercise such discretion’.

Nuremberg and Tokyo The Allies imposed victors’ justice on, only, German and Japanese defendants. The alleged crimes of war committed by the United States and British and Soviet armed forces were kept out of reach of the Nuremberg and Tokyo International Military Tribunals, as well as the crimes against peace of the USSR. The Tokyo Tribunal was dominated by American political interests, in part by giving immunity to the Emperor, and in also excluding American bombing of cities and the atomic bombing of Hiroshima and Nagasaki from its jurisdiction. Former U.S. Secretary of Defense Robert McNamara said in a 2003 documentary film: ‘We burned to death 100,000 Japanese civilians in Tokyo – men, women and children – about 900,000 civilians died altogether’. He recalls that U.S. General Curtis E. LeMay, of the army’s air forces, said: ‘If we’d lost the war, we’d all have been prosecuted as war criminals’. For McNamara and LeMay, ‘[we] were behaving as war criminals’.6 A serious legal flaw of both Tribunals was that their trials were based on ex-post facto legislation, in violation of the principle of nullum

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crimen sine lege: international legislation in force at the time that the alleged crimes were committed did not include a definition of crimes against peace or crimes against humanity and of relevant punishment, nor any reference to international tribunals, their composition and their powers. In spite of their imperfections and partiality, the Nuremberg and Tokyo Tribunals created a major judicial precedent: for the first time, high level political and military leaders were made accountable, before a Tribunal, for crimes committed in their name or in the name of their regime; individual responsibility was added to state responsibility. International law finally included individuals as ‘subjects’, rather than being restricted to relations between states. Nuremberg served as a precedent and a guide for the statutes and jurisprudence of later international criminal courts.

Ad hoc temporary tribunals It took almost half a century after Nuremberg before international tribunals were, again, created, starting in the 1990s. Before the creation of the International Criminal Court in 1998, they were all ad hoc, temporary courts dealing with specific countries. They are all due to be closed when their cases are disposed of. Their composition is not limited to a select group of victors, as were the Nuremberg and Tokyo Tribunals; their prosecutors and judges are genuinely ‘international’. As for the International Court of Justice, they represent the main legal systems of the world. Both the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) were exposed to political pressures. The influence of Western countries, in particular that of the United States, was shown in deterring the ICTY Prosecutor from initiating an investigation for war crimes allegedly committed during the NATO air bombing campaign. In the case of the ICTR, the Tutsi-led Rwandan government, the victor, has so far successfully prevented its Prosecutor from investigating, and potentially prosecuting, members of the (Tutsi) Rwandan Patriotic Army for alleged war crimes and crimes against humanity. The removal of the Prosecutor (Carla Del Ponte) from her position for the ICTR was also caused mainly by a request of the Rwandan government, supported by the United States, on political grounds. Among the four national/international courts, only the Special Court for Sierra Leone has been saved from blatant political interference or

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pressures. Western governments, particularly the United States and the United Kingdom, have supported the Sierra Leone Special Court; the United States has applied pressure on Nigeria in order to obtain the arrest of Charles Taylor, but these countries have not interfered politically in the judiciary activities of the Court. By its political and military power and proximity to East Timor, Indonesia stifled the weak efforts of the Serious Crimes Unit by rejecting any arrest warrant and extradition requests of high-level Indonesian military or political suspects; Timor-Leste gave preference to its need for friendly relationships with Indonesia, leaving the needs for justice aside. There was no political will in the UN Security Council to apply pressure on Indonesia. Cambodia, with the quiet support of China and other Asian states, delayed the creation of an international Tribunal to try the Khmer Rouge leaders for many years. The Extraordinary Chambers in the Courts of Cambodia were only created in 2004 and the trial of the first suspect started in 2009, while the Khmer Rouge leader, Pol Pot, had been deposed in 1979. The Cambodian government rejected all efforts by the UN Secretariat to set up an independent tribunal which would conform to international standards of justice; the Chambers are Cambodian courts, where the international judges are in a minority. The dual structure of the Chambers is causing conflicts and more delays. The Special Tribunal for Lebanon, borne of a French initiative, is mandated to prosecute persons responsible for a terrorist attack which killed former Prime Minister Rafik Hariri of Lebanon and 22 others, while other international tribunals had to deal with mass killings or genocides. The changed political attitudes of France and the United States towards Syria, and Syria’s refusal to cooperate, raise serious doubts as to whether the Tribunal will be able or allowed to identify, prosecute and try those responsible for the attack.

The international criminal court The work and independence of the Court are strongly supported by the European Union, and by states particularly renowned for their role in international mediation, conciliation, arbitration and as guardians of ethics in international relations, such as Canada, the Scandinavian countries, Switzerland and Latin American democracies. The UN Secretariat is also in support of international justice and has given effective legal assistance in drafting the statutes of several international courts.7 As noted in the Introduction, it is worth stressing again the major role of human

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rights and humanitarian non-governmental organizations (NGOs) in promoting transitional and international justice.8 Their action starts with identifying, denouncing and publicly shaming those leaders who commit violence on civilian populations. They use public opinion to force democratic governments to act. NGOs contribute to the drafting and adoption of international norms, conventions and treaties. They actively campaign for the ratification of the Rome Statute by more states by encouraging citizens to press their own government to become a Member State. They monitor the implementation of these instruments by states who have ratified them, and denounce the violation of their obligations. However, the ICC faces a problem of legitimacy and impartiality. There is a perception that the ICC investigations and prosecutions weigh unfairly on African and Arab countries. This perception is shared by a number of ‘South’ countries’ leaders who see ICC work as a plot or a threat to impose unwanted Western values on recalcitrant governments and populations, besides being a breach of their national sovereignty. The African Union, the Arab League and the Organization of the Islamic Conference have publicly rejected the indictment process of al-Bashir, and urged the Security Council to order a deferral of investigation or prosecution for 12 months under Article 16 of the Rome Statute.

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whether they should consider, or take into account, prospects for peace negotiations, or ongoing peace negotiations, before launching investigations and trials, or whether they should, in all cases, ignore these prospects or actual negotiations, and proceed with their judicial work, or whether these considerations may depend on specific situations and political context; how to carry out reliable investigations in countries still in the midst of conflicts; how to initiate investigations into crimes committed by both rebels and government, when a situation has been referred to the Court by the country’s government; how to dispel the perception that the Court is biased against ‘South’ countries, and tends to ignore crimes allegedly committed by ‘North’ countries and their allies;

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how to decide that there is a reasonable basis to proceed with an investigation under Article 15 of the Rome Statute, and ensuring that such a decision is clearly, publicly explained and communicated to the concerned parties and to the media. Similarly, that a decision not to proceed with an investigation is also explained and detailed publicly, particularly when a decision not to proceed is based solely on a determination by the Prosecutor that the investigation or case would not serve the ‘interests of justice’; on what basis, in specific cases, the Court decides that a State is unwilling or unable to carry out an investigation or prosecution, a decision which should also be publicly explained to the media; how to maintain a balance between the rights of victims to participate in proceedings, their need for protection, and the accused’s right to a fair trial, and maintaining the presumption of innocence; how to limit the duration of trials.

The Assembly of States Parties should ensure the accountability and transparency of the ICC through the establishment of an independent oversight mechanism.

The reality of international justice In spite of recurrent attacks and challenges, international criminal justice, born in Nuremberg, resurrected in the 1990s and made permanent with the International Criminal Court, is alive. There is a slow but steady move towards the strengthening of international justice norms and institutions. International courts establish facts through their investigations, and in part through admission of guilt from accused, serving later as historical records. Besides retribution on those convicted, the courts’ key justification is to bring justice to victims and to give them a voice. Being composed of international judges, distanced from local, national or regional politics, applying strict due process procedures, they provide suspects with fairer trial guarantees than national courts. The development and future of the ICC will depend on a number of political and judicial factors, its ability to attract more Member States, including major ones, its ‘success’ in obtaining custody of major suspects, and its ability to face and resolve charges of selectivity, victors’ justice and politicization. It should limit excessive expectations; international justice cannot prevent wars or restore peace. It may help in accomplishing reconciliation through the exposure of facts and the

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assignment of guilt only to selected leaders. However, highlighting the crimes and grievances of the parties may not initially create a climate of reconciliation and peace. Except for a few examples given by Akhavan,9 there is no reliable evidence that international tribunals have restrained leaders from ordering or allowing atrocities to be committed. The ICC helps in improving national justice practices, both in modifying laws to conform with treaty obligations and in spurring more vigorous prosecutions of suspects below the level of the ICC’s focus. International criminal justice has opened a new chapter in international law, formerly restricted to relations between states, to individuals as subjects of international law, with rights and obligations. It has developed an international criminal legislation based first on The Hague and Geneva Conventions, Nuremberg Law, the Genocide Convention and other international Conventions. It has defined substantive law, such as crimes against humanity, laid down international procedures. The application of this legislation, formerly limited to national justice, now extends to international courts. These courts have developed a substantial corpus of coherent international law on war crimes, genocide and crimes against humanity, which national courts could not do. The work of international tribunals, in particular the International Criminal Tribunal for the Former Yugoslavia, contributed to expanding the jurisprudence related to questions of rape and its final recognition as a war crime and a crime against humanity; better definition of torture and elements of genocide; and elaboration of the doctrine of command responsibility. This common legal framework led to the exclusion of blanket amnesty in cases of genocide, war crimes, crimes against humanity and gross violations of human rights (Gierycz, 2008: 9). Nuremberg and the later ad hoc tribunals and courts have shown that international courts and judges could and did carry out fair trials and issued sentences proportional to the gravity of the crimes. International criminal justice, after Nuremberg and Tokyo, now excludes the death penalty as a punishment, and encourages countries to do the same, on the grounds of human rights, and on the evidence that, at the national level, a death sentence is not an effective deterring measure. The principal achievement of international justice is to have made senior political and military rulers accountable for their criminal actions, and, if tried in a fair trial, subject to punishment; it has spread the shift from leaders’ impunity to accountability. Among those convicted for grave violations of international humanitarian and human rights law are the Nazi and Japanese leaders. Most of the members of the Hutu interim government responsible for the genocide of the

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Tutsis have been sentenced to long imprisonment terms. A few aged Khmer Rouge leaders have finally been called to justice in Cambodia. President Milosevic was indicted, although his death aborted his trial. Radovan Karadzic is on trial in The Hague. Former President Charles Taylor of Liberia is being tried by the Special Court for Sierra Leone in The Hague. The ICC has issued an arrest warrant for al-Bashir, the President of Sudan. Understandably, other despots fear ‘The Hague’ as their possible destination and reject the legitimacy of international courts as a breach of national sovereignty and as a ‘neo- colonialist’ plot against ‘South’ nations. The negative consequence is that such leaders may stay in their positions as long as possible, in order to escape prosecution. Many of the violations of international humanitarian law committed in most countries where international courts have acted could not have been dealt with effectively, or not at all, in national judicial systems. The reluctance of the Senegalese authorities to try Hissène Habré shows the obstacles met by national courts in the prosecution of political leaders of other countries, as well as the limits of universal jurisdiction.

Reflections for the future To fulfil its mission, to be effective and credible, the ICC has to cooperate with governments and local authorities, while maintaining its independence, a complex and potentially contradictory task. In accordance with its Statute, the ICC is complementary to national justice; it does not replace national justice unless the latter is unwilling or unable to act. For Luis Moreno Ocampo, the Court’s Prosecutor, a mission of the ICC is to help states to agree to the global justice system: ‘Whereas a national criminal justice system is based on command and control, the global criminal system is based on agreement and co- operation’.10 International tribunals have to be focused on the right targets, as their jurisdiction is limited to the ‘most serious crimes of concern to the international community as a whole’. International tribunals also have to limit their prosecutions to a number of alleged criminals, either through the jurisdiction and powers granted to them by their Statutes, or by necessity – their judicial, time and financial resources allow them only to investigate and try a limited number of accused among the potential hundreds or thousands of suspects. The future of the International Criminal Court is not yet assured. Continued efforts should be made to make it better known and to convince reluctant states to join it.

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The Review Conference held in Kampala, Uganda, in June 2010, approved an amendment to the Statute which includes a definition of the crime of aggression and the conditions under which the Court could exercise jurisdiction with respect to the crime. In a stock-taking exercise on international criminal justice, it recognized in a resolution, as essential components of justice, the right of victims to equal and effective access to justice, support and protection, adequate and prompt reparation for harm suffered and access to information concerning violations and redress mechanisms. In the Declaration on Cooperation, the Conference emphasized that all States under an obligation to cooperate with the Court must do so.11 The ultimate success of international criminal justice and of the ICC will depend to a large extent on the continued political support of the international community, of the UN Security Council, of the European Union, and, as far as the ICC is concerned, the continued support and guidance of its Assembly of Member States. The legitimacy and credibility of the ICC will be assessed on the basis of its performance and achievements, based on the competence, integrity, independence and moral courage of the courts’ judicial personnel. In particular, the will and ability of its judges to resist or ignore political pressures and remain true to their oath of office will continue to be the object of close scrutiny. The future of international criminal justice will also depend on unpredictable political and military developments in international relations. The ICC, as the basic and necessary permanent institutional structure now in place, is an essential tool to fight against the impunity of criminal rulers, and it represents a new hope for the many victims. As expressed by Clark,12 ‘... while they are arguably not enough by themselves, criminal trials are a fundamental and necessary starting point for addressing the legacy of human rights violations, helping to establish or re- establish the rule of law, and providing the foundations upon which other transitional justice mechanisms can build’. International justice needs the continued support of many concerned nations, international organizations, diplomats, jurists, human rights NGOs and other activists, in order to deal with, and hopefully overcome, the many challenges and problems facing it.

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Notes Foreword 1. On the theory of the dédoublement fonctionnel, see the work of G. Scelle quoted by A. Cassese (1990), ‘Remarks on Scelle’s Theory of “Role Splitting” (dédoublement fonctionnel) in International Law’, 1 European Journal of International Law: 210 n. 1. 2. See the Judgment of the Israeli Supreme Court of 29 May 1962 in Eichmann, 36 International Law Reports (1968): 304. See also the decision of 31 October 1985 of a US Court in Demjanjuk, 776 F.2d 57, 1985, § 21, and the decision of 12 February 1988 by the District Court of Columbia in the Yunis case, 681 F.Supp. 896, D.D.C., 1988: 903. 3. Corso di diritto criminale VII (Lucca, 1871).

Introduction 1. http://untreaty.un.org/cod/icc/statute/english/rome_statute%28e%29. pdf. 2. Security Council resolution S/RES/1674 (2006), para. 8, 28 April 2006. 3. The same wording is found in Article 14 of the binding International Covenant on Civil and Political Rights, adopted by the UN General Assembly in resolution 2200 A (XXI) of 16 December 1966. It entered into force on 23 March 1976. The non-binding Universal Declaration of Human Rights was adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948. 4. Examples of the incapacity or weaknesses of national justice in despotic and in democratic countries are found in Beigbeder (2005): Chapter 1. 5. See Y. Beigbeder (2006), Judging War Crimes and Torture: French Justice and International Criminal Tribunals and Commissions (1940–2005) (Leiden, NL/ Boston: Martinus Nijhoff Publishers): 13. 6. See The Washington Post, 16 March and 18 November 2009. 7. International Herald Tribune, 6 August 2008. 8. Colloquium (2004), ‘Colloquium of Prosecutors of International Criminal Tribunals on “The Challenges of International Criminal Justice” ’, Report of Proceedings, 25–27 November 2004: 5–6. 9. ‘Geneva Convention of 22 August 1964, for the amelioration of the condition of the wounded in armies in the field’, International Committee of the Red Cross, League of Red Cross Societies (1983), International Red Cross Handbook, 12th edn (Geneva, ICRC): 19–20. 10. Ibid. 23–318. 11. Ibid, 321, 322–32. 12. See a list of ‘Treaties & Agreements’, Arms Control Organization, http://armscontrol.org/treaties, retrieved 18 August 2010. 284

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Notes 285 13. ‘Convention on the Prevention and Punishment of the Crime of Genocide’, approved and proposed for signature and ratification or accession by the General Assembly resolution 260 A (III) of 9 December 1948. 14. Res. 95 (I) – A/236 (1946). 15. Article V. The Convention was adopted by General Assembly resolution 3068 (XXVIII) of 30 November 1973. 16. The Convention was adopted by General Assembly resolution 39/46 of 10 December 1984. It entered into force 26 June 1987. 17. The Convention was adopted by General Assembly resolution 44/25 of 20 November 1989. It entered into force on 2 September 1990. 18. Transitional Justice is based on the concept of a new direction in human rights advocacy: helping societies to heal by accounting for and addressing past crimes after a period of repressive rule or armed conflict. The International Center for Transitional Justice was created in 2001 in New York City. Its approach includes prosecuting perpetrators, documenting and acknowledging violations through non-judicial means such as truth commissions, reforming abusive institutions, providing reparations to victims, and facilitating reconciliation processes. See P. Hazan (2007), Juger la guerre, juger l’Histoir:, Du bon usage des Commissions Vérité et de la justice internationale (Paris: Presses Universitaires de France): 44, 46. 19. In 1982, the National Commission of Inquiry into Disappearances was created in Bolivia. Other Truth Commissions were set up in Chile (1990), El Salvador (1992), Guatemala (1994), Ecuador (1996), Uruguay (2000), Panama and Peru (2001). 20. P.F. Diehl, C. Ku and D. Zamora (2003), `Dynamics of International Law: Interaction of Normative Operating Systems’, International Organization: 57–8. 21. A. Cassese (2003), ‘A Big Step Forward for International Justice’, Crimes of War Project, The International Criminal Court: AN END TO IMPUNITY? 1–6, http://www.crimesofwar.org/print/icc/icc- cassese-print.html, retrieved 29 July 2008. 22. Diehl et al.: 59. 23. OJ L 150/67, Acts adopted pursuant to Title V of the Treaty of the European Union, ‘Council Common Position 2003/444/CFSP of 16 June 2003 on the International Criminal Court’, (4) and (5). 24. Res. AG/RES.2039 (XXXIV- 04), 8 June 2004. 25. M. Chemillier- Gendreau (1996), ‘The International Court of Justice Between Politics and Law’, Le Monde diplomatique, http://www.globalpolicy.org/wldcourt/icj.htm, retrieved 10 August 2008. 26. Among the more active legal, human rights and humanitarian NGOs: Amnesty International, the Coalition for the International Criminal Court, Human Rights Watch, the International Bar Association, the International Commission of Jurists, the International Center for Transitional Justice, International Federation for Human Rights, Médecins sans frontières (MSF), No Peace Without Justice, Physicians for Human Rights, Transparency International, World Organization Against Torture. 27. Security Council resolution S/RES/1674 (2006), para. 7. 28. N. Fritz (2008), ‘When International Justice Is Feared as Colonisation by Law, The Application of Global Legal Accountability Is No Open and Shut Case’, The Times – South Africa, 25 May 2008.

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Notes

29. D. Gierycz (2008), Transitional Justice – Does It Help Or Does It Harm? NUPI Working Paper 737 (Oslo: Norwegian Institute of International Affairs). 30. Articles 42 and 48 of the UN Charter concern the use of force and the action to be taken by Members of the UN. 31. R. Dicker and E. Keppler (2004), ‘Beyond The Hague: The Challenges of International Justice’, Human Rights Watch, http://www.globalpolicy.org/ intljustice/general/2004/0205beyond.htm, retrieved 13 August 2008.

1

The Pioneers: The Nuremberg and Tokyo Military Trials

1. Roosevelt had been a reluctant supporter of the trial, while Harry Truman was a true advocate. J.F. Murphy (1990), ‘Norms of Criminal Procedure at the International Military Tribunal’, in G. Ginsburgs and V.N. Kudriavtsev (eds), The Nuremberg Trial and International Law (Dordrecht/Boston/London, Martinus Nijhoff Publishers): 66. 2. Inter-Allied Information Committee (1942), Punishment for War Crimes: The Inter-Allied Declaration Signed at St. James’s Palace, London, on 13 January 1942 and Related Documents, 2 vols (London: His Majesty’s Stationery Office), 1: 3–4. What other references? 3. Winston S. Churchill, Franklin D. Roosevelt and Joseph Stalin, ‘Moscow Declaration, November 1, 1943’, in United Nations War Crimes Commission (1948), History of the United Nations War Crimes Commission and the Development of the Laws of War (London: United Nations War Crimes Commission): 107–08. 4. The Allied Control Council was a military occupation governing body of the four Allied Occupation Zones in Germany set up in Germany in 1945. Its members were France, the United Kingdom, the United States and the USSR. 5. International Military Tribunal (1947), Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946, 42 vols (Nuremberg: International Military Tribunal) (thereunder IMT Trial), 1:10–16. 6. Among those sentenced to death: Hermann Göring (who committed suicide before his execution), General Alfred Jodl, Marshal Wilhelm Keitel, Joachim von Ribbentropp. Rudolf Hess was sentenced to life imprisonment; Albert Speer and Baldur von Schirach, to twenty years’ imprisonment. Hans Fritzsche, Franz von Papen and Hjalmar Schacht were acquitted. 7. R.L. Koenig (1996), ‘50 Years Later, Nuremberg Ghosts Walk’, St. Louis PostDispatch, 29 September 1996. 8. American Law Institute Annual Meeting, ‘Remarks of the Chief Justice’, 17 May 2004, http://www.supremecourtus.gov/publicinfo/speeches/sp_05-1704a.html. Retrieved 23 August 2008. 9. IMT Trial, 1: 218. 10. W.B. Simons (1990), ‘The Jurisdictional Bases of the International Military Tribunal at Nuremberg’, in G. Ginsburgs and V.N. Kudriavtsev (eds), The Nuremberg Trial and International Law (Dordrecht/Boston/London: Martinus Nijhoff Publishers): 52–59. 11. Not the United Nations Organization created on 24 October 1945, but the term used by President F.D. Roosevelt in the ‘Declaration by United Nations

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12. 13. 14.

15.

16. 17. 18. 19. 20. 21.

22. 23.

24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35.

36.

of 1 January 1942,’ when representatives of 26 nations pledged their governments to continue fighting together against the Axis Powers. Q. Wright (1947), ‘The Law of the Nuremberg Trial’, American Journal of International Law 41: 50–51. M.R. Marrus (1997), The Nuremberg War Crimes Trial 1945–46, A Documentary History (Boston, New York: Bedford Books): 251. J. Rabkin (2007), ‘No substitute for sovereignty: Why international criminal justice has a bleak future – and deserves it’, in Atrocities and International Accountability, Beyond Transitional Justice (Tokyo/New York/Paris: United Nations University Press): 102. Under Article 227 of the Treaty of Versailles, the Kaiser was to be tried by an international tribunal of five judges. However, having taken refuge in the Netherlands, that country refused to release him. The German Supreme Court in Leipzig only tried a few Germans, giving them light sentences. See Beigbeder (1999: 28–29). Marrus: 81. Wright: 51–2. Murphy: 75. Marrus: 248. Marrus: 247–8. The Soviet judge dissented from the decisions in the cases of Schacht, von Papen, and Fritsche, and from the decisions on the General Staff and High Command and the Reich Cabinet. He was of the opinion that Hess should have been condemned to death. T. Taylor (1992), The Anatomy of the Nuremberg Trials (Boston/New York/Toronto/London: Little, Brown and Company): 599. Taylor: 599. S. Pomorski (1990), ‘Conspiracy and Criminal Organization’, in G. Ginsburgs and V.N. Kudriavtsev (eds), The Nuremberg Trial and International Law (Dordrecht/Boston/London: Martinus Nijhoff Publishers): 218–9. Pomorski: 218. U.S. Federal Rules Decisions (1946) (hereinafter ‘Federal Rules Decisions’) 6: 107–108. Federal Rules Decisions: 108. Ibid.: 109. Ibid.: 110. Ibid.: 86. Simons: 49–50. IMT Trial, 9: 362–64. Taylor: 325–6. London Conference of 1936, Treaty for the Limitation of Naval Armament, 25 March 1936. Taylor: 400. H. Donnedieu de Vabres (1947), Le procès de Nuremberg devant les principes modernes du droit pénal international (The Hague: Rec. Acad.): 483, 486, 526–7. B.D. Meltzer (2000), ‘The Nuremberg Trial: A Prosecutor’s Perspective,’ Paper delivered at the Conference on Genocide, John Marshall Law School, 18 April 2000: 10.

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Notes

37. Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, December 20, 1945, 3 Official Gazette Control Council for Germany 50–55 (1946). 38. J. Brunner (2002), ‘American Involvement in the Nuremberg War Crimes Trial Process’, Michigan Journal of History, Winter (2002): 2. 39. Donnedieu de Vabres: 483, 486; see references in Y. Beigbeder (2006), Judging War Crimes and Torture, French Justice and International Criminal Tribunals and Commissions (1940–2005) (Leiden/Boston: Martinus Nijhoff Publishers), 255–6. 40. C. Kress (2006), ‘Germany and International Criminal Law: Continuity or Change?’ in H.R. Reginbogin and C.J.M. Safferling (eds) The Nuremberg Trials, International Criminal Law Since 1945, (Munich, K.G. Saur): 235. 41. C. Burchard (2006), ‘The Nuremberg Trial and Its Impact on Germany’, Journal of International Criminal Justice, 4, no. 4 (Oxford: Oxford University Press): 800–29. 42. N. Boister and R. Cryer (2008), The Tokyo International Military Tribunal, A Reappraisal (Oxford/New York: Oxford University Press): 324–5. 43. Cairo Declaration, 1 December 1943 (1944) American Journal of International Law (Special Supplement) 38: 8, 11; see Transcript, 48417. A major reference book is Richard H. Minear, Victors’ Justice: The Tokyo War Crimes Trial (Princeton, NJ: Princeton University Press, 1971). For a comprehensive, factual description of the Tokyo Trial, see Solis Horwitz, ‘The Tokyo Trial’, in International Conciliation, No. 465 (Carnegie Endowment for International Peace, November 1950). See also: A.C. Brackman (1987), The Other Nuremberg, The Untold Story of the Tokyo War Crimes Trials (New York: Quill-William Morrow). A recent and thorough legal analysis and scholarly reassessment of the Trial is in Boister and Cryer, 2008. 44. ‘The Report of the Tripartite Conference of Berlin, 17 July to 2 August 1945’ (1945) American Journal of International Law (Special Supplement) 39: 245, 251, Transcript, 48417; Annex A-1 of the Judgment. 45. ‘Japanese Instrument of Surrender, 2 September 1945’; 13 US Dept State Bull 364 (1945), American Journal of International Law (Special Supplement) 39: 264. 46. ‘Directive on the Identification, Apprehension and Trial of Persons Suspected of War Crimes’ (no date or serial number) is attached to FEAC 8 24 October 1945, File No. EA 2 106/3/22, Part 1, Archives New Zealand. 47. The original and amended Charters can be found in ‘International Military Tribunal for the Far East’, United States Department of State Publication 2765 (Washington: United States Government Printing Office, 1947): 5–16; the amended Charter is in ‘Trial of Japanese War Criminals’, United States Department of State Publication 2613 (Washington: Government Printing Office, 1946): 39–44. 48. Boister and Cryer: 82–3. 49. Keenan was accused of many faults: a poor administrator, non- consultative, bad-tempered, an alcoholic, absent, unable to control national interests, and a poor litigator (Boister and Cryer: 76). 50. Zhang Zoulin, warlord in North China, was murdered on 1 January 1928 by non- commissioned officers of the Japanese army in Manchuria, considered

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Notes 289

51. 52. 53. 54.

55. 56. 57. 58.

59.

60. 61. 62. 63. 64. 65. 66.

67. 68.

69. 70. 71. 72. 73. 74.

as the first act of aggression by Japan – although it was condemned by the Tokyo government. K.C. Moghalu (2008), Global Justice: The Politics of War Crimes Trials (Stanford: Stanford University Press): 45. Minear: 23–6. Boister and Cryer: 32–3, 36–7. ‘Judgment’, later published under the title International Military Tribunal for the Far East: Dissentient Judgment (Calcutta: Sanyal, 1953), hereunder as ‘Pal Judgment’. Pal Judgment: 44–45, 48, 59, 71, 104. Ibid.: 17, 30. Ibid.: 620–621. Röling’s Dissenting Opinion was reprinted in The Tokyo Judgment, B.V.A. Röling and C.F. Rüter, vol. 2, (Amsterdam: APA-Amsterdam University Press, 1977): 44, 48, 1041 ff. H. Bernard (1948), ‘Dissenting Judgment of the Member from France of the International Military Tribunal for the Far East’, 12 November 1948 [MB 1549, Tokyo War Trials, Box 334, Opinion of the member from France, 1948, Macmillan Brown Library]. Bernard: 2–3. Ibid.: 12–17. Ibid.: 18, 19, 20. Ibid.: 19, 22. Ibid.: 21–22. Ibid.: 23. ‘GHQ, Far East Command, Public Information Office, Immediate Release’, 24 November 1948, File No. 106/3/22, Part 8, Archives New Zealand. The text of MacArthur’s Proclamation is in Minear: 166–7. Boister and Cryer: 265–6. See US Supreme Court, Hirota v. MacArthur, 338 US 197 (1948). The Court denied motions for leave to file petitions for writs of habeas corpus on the ground that ‘The military tribunal set up in Japan by General MacArthur as the agent of the Allied Powers is not a tribunal of the United States, and the courts of the United States have no power or authority to review, affirm, set aside, or annul the judgments and sentences imposed by it on these petitioners, all of whom are residents and citizens of Japan’. See also Minear: 169–172. Boister and Cryer: 48. Ibid.: 73, 328. Ibid.: 102, 114. Ibid.: 202, 220. Ibid.: 270. Ibid.: 316, 321.

2 The International Criminal Tribunal for the Former Yugoslavia 1. K.C. Moghalu (2008), Global Justice: The Politics of War Crimes Trials (Stanford, CA: Stanford University Press): 50.

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290 Notes 2. See ‘A History of the Yugoslav Crisis’, in M.P. Scharf (1997), Balkan Justice, The Story Behind the First International War Crimes Trial Since Nuremberg (Durham, NC: Carolina Academic Press), Chapter 1. 3. The Dayton Agreement was formally signed in Paris on 14 December 1995. It defined, in part, the political divisions of Bosnia and Herzegovina and its structure of government. The Contact Group is composed of France, Germany, Italy, Russia, the United Kingdom and the United States. 4. The report of the Commission first chaired by Frits Kalshoven, then by Cherif Bassiouni, was submitted on 24 May 1994 by the UN SecretaryGeneral to the Security Council (Doc. S/1994/674). The report of the other Commission headed by Tadeusz Mazowiecki, as Special Rapporteur of the UN Human Rights Commission, was submitted in June 1994 (Doc. E/CN.4/1995/4). 5. P. Hazan (2000), La justice face à la guerre, De Nuremberg à La Haye (Paris: Stock): 68–9. 6. The Statute was amended by the Security Council: on 13 May 1998 by resolution 1166, on 30 November 2000 by resolution 1329, on 17 May 2002 by resolution 1411, on 14 August 2002 by resolution 1431, on 19 May 2003 by resolution 1481, on 20 April 2005 by resolution 1597, on 28 February 2006 by resolution 1660. 7. See Security Council Resolutions 1166, 1329, 1597, 1800. 8. C. Del Ponte (2008), Madame Prosecutor: Confrontations with Humanity’s Worst Criminals and the Culture of Impunity: A Memoir, with Chuck Sudetic (New York: Other Press): 6. 9. ‘The Cost of Justice’, ICTY-TPIY, http://www.icty.org/sid/325, retrieved 13 April 2010. 10. ‘The Prosecutor v. Dusko Tadic, Case No. IT-94-I-AR72’. See also ICTY press release CC/PIO/021- e, 2 October 1995, ‘Appeals Chamber Judges Unanimously Confirm the Tribunal’s Jurisdiction’. 11. ‘The Prosecutor v. Dusko Tadic, Case No. IT-94-I-T Decision on Jurisdiction’. See also ICTY press release CC/PIO/015-E, 10 August 1995, ‘Case No. IT-941-T/DEFENDANT: Mr. Dusko Tadic’. 12. These notes are based on ‘Case Information Sheets’ produced by the Tribunal, but not as official documents. 13. F. Hartmann (2007), Paix et châtiment, Les guerres secrètes de la politique et de la justice internationale (Paris, Flammarion): 234. 14. Del Ponte: 105–6. 15. Del Ponte: 111–2. 16. See ‘Case information sheet, Kosovo, Croatia & Bosnia (IT- 02-54), Slobovan Milosevic’, http://www.un.org/icty/cases- e/cis/smilosevic/cisslobovanmilosevic.pdf, retrieved on 8 October 2008. 17. Hartmann: 73–163. 18. Florence Hartmann was spokesperson for the Tribunal’s Prosecutor, Carla Del Ponte, from 2000 to 2006. Her allegations against Geoffrey Nice, Assistant Prosecutor, and against U.S. and British analysts – she thought that the latter had voluntarily and systematically hidden the direct responsibility of Milosevic in the crimes in Bosnia and particularly in Srebrenica – have been rebutted by Nice in a letter published in Le Monde of 22 September 2007. On 27 August 2008, Hartmann was indicted by the Tribunal for outrage,

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Notes 291

19.

20. 21. 22.

23.

24. 25. 26.

27.

28. 29.

as having revealed publicly confidential decisions regarding the Milosevic trial. On 15 September 2009, she was found guilty on two charges of contempt and fined €7,000 (International Herald Tribune, 15 September 2009). The late Richard Holbrooke, a U.S. diplomat, brokered the Dayton Agreement in 1995. See: CNN International, http://edition.cnn.com/, ‘ “Butcher of the Balkans” Found Dead’, 12 March 2006. See ICTY, ‘Case Information Sheet on Radovan Karadzic, Case IT-95-5/18’. Hartmann: 186–199. See articles in International Herald Tribune: 23, 25, 26–27 July, 1 August, 30–31 August. 24 September 2008, – The Economist: 26 July 2008; Le Monde: 23 and 29 July, 31 July, 19 September 2008. Case IT- 05- 87 concerns Milutinovic et al.: Nikola Sainovic, Deputy Prime Minister of the FRY (Serbia and Montenegro) from February 1994 until November 2000; Dragoljub Ojdanic, Chief of the General Staff of the Yugoslav Army, from 24 November 1998, and Minister of Defence of the FRY (Serbia and Montenegro) from 15 February 2000 until 3 November 2000: – Nebojsa Pavkovic, Commander of the Third Army of the Yugoslav Army from 25 December 1998 until early 2000, and Chief of the General Staff of the Yugoslav Army from February 2000 until 24 June 2002; Vladimir Lazarevic, Chief of Staff of the Pristina Corps of the Yugoslav Army from 1998, Commander of the Pristina Corps from 25 December 1998, Chief of Staff of the Third Army of the Yugoslav Army from December 1999, and Commander of the Third Army from 13 March 2000; Sreten Lukic, Head of the Serbian Minister of Internal Affairs (MUP) for Kosovo and Metohija from May 1998, Assistant Chief of the Public Security Service (RJB) and Chief of Border Administration of the Border Police in the MUP from June 1999, and Assistant Minister and Chief of the RJB from 31 January 2001. ICTY Press Release 26 February 2009, ‘Five Senior Serb Officials Convicted of Kosovo Crimes, One Acquitted’. The Washington Post, 27 February 2009; Le Monde, 28 February 2009. Sealed indictments are issued by the Prosecutor and confirmed by a judge. They are not made public to the public at-large or to the media. Their purpose is to avoid giving indictees a chance to hide or flee when they know of an indictment, which often occurred before the practice of sealed indictment was initiated. Indictments and related arrest warrants are transmitted to national authorities, and/or SFOR, when the Prosecutor believes that they would be acted on. This practice is similar to that applied in national jurisdictions. Dr Franjo Tudman (or Tudjman) was elected President of the newly- created state of Croatia in 1990. In August 1990, Serbs in Serb-majority districts loyal to Belgrade seized a third of the country with the support of the Yugoslav army and declared the area the Republic of Serb Krajina. The Operation Storm of August 1995 caused the exodus of about 200,000 Serbs. Tudman signed the Dayton Agreement, together with President Milosevic and Muslim Bosnian President Alija Izetbegovic. BBC News, 18 October 1999, ‘World: Europe, No Extradition for Croatian Generals’. Many crimes were committed by the ‘El Mujahed’ Detachment of the 3rd Corps of the Army of Bosnia-Herzegovina, composed of foreign Muslims,

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292

30. 31.

32.

33. 34. 35. 36.

37. 38.

39.

40.

41.

42.

43. 44.

45. 46. 47. 48.

Notes many of whom had fought the Soviet Army in Afghanistan. Delic had been put on notice that soldiers of this Detachment had a propensity to commit crimes, and particularly crimes against captured enemy combatants and civilians. V. Peskin (2008), ‘Haradinaj: A Forced Marriage between Politics and Justice’, International Justice Tribune, 17 March to 6 April 2008. P. Mitchell (2008), ‘Kosovo: The Hague Acquits Former PM Haradinaj of War Crimes amid Alleged Witness Intimidation’, World Socialist Web Site, 16 April 2008: 1, http://www.wsws.org/articles/2008/apr2008/kla-a16.shtml, retrieved 27 October 2008. S. Maupas (2008), ‘Ramush Haradinaj acquitté par le TPIY’, Radio France International, 4 avril 2008, http://www.rfi.fr/actufr/articles/100/ article_64632,asp, retrieved 16 October 2008. Mitchell: 2. ‘Case Information Sheet, IT- 04- 84, Haradinaj et al.’: 7–8. International Herald Tribune, 22 July 2010, ‘Ex-Kosovo Leader Faces Partial Retrial’, A. Cowell and D. Bilefsky. International Court of Justice, Press Release No. 2010/25 of 22 July 2010: ‘Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo’. M. Simons and S. Castle, ‘Court Backs Kosovo on Autonomy’, International Herald Tribune, 23 July 2010. ‘Serbia Rejects Kosovo’s Independence Ruling’, VOANews.com, 23 July 2010. www.voanews.com/english/news/europe/Serbia- Rejects- KosovosIndependence-Ruling-99120639.html, retrieved 1 September 2010. ‘Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia’, ICTY, 8 June 2000. Human Rights Watch (2001), ‘War Crimes in Kosovo’, http://www.hrw. org/reports/2001/kosovo/undword.htm and www.hrw.org/reports/2001/ kosovo/undword2b.htm, retrieved 4 November 2008. ‘Introductory statement by Justice Louise Arbour, Prosecutor ICTY and ICTR at the launch of the ICC Coalition’s Global Ratification Campaign’, press release, The Hague Appeal for Peace, 13 March 1999, Doc. JL/PIU/401-2, 13 May 1999. J. Israel (2005), ‘NATO Says The Hague Tribunal (or ICTY) Belongs to NATO. The Tribunal Says They and NATO Are Partners’, Emperor’s Clothes documents assembled by Jared Israel, www.emperor’s- clothes.com, 2 July 2005, http://emperors- clothes.com/docs/tribdocs.htm, retrieved 5 November 2008. Moghalu: 61. ‘Statement by Madame Carla Del Ponte, Prosecutor of the International Criminal Tribunal for the Former Yugoslavia,’ press release, Doc. PR/Al P.I.S./459- e, 30 December 1999. Del Ponte: 60–61. Hartman: 252–84. United Nations Security Council (2002), ‘Statement by the President of the Security Council’, S/PRST/2002/21, 23 July 2002. United Nations Security Council, S/2002/678, 19 June 2002.

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Notes 293 49. The Office of the High Representative in Bosnia and Herzegovina was created under the Dayton Agreement. He is also the European Union Special Representative in Bosnia and Herzegovina. 50. ‘Letter dated 12 November 2009 from the President of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, addressed to the President of the Security Council’, Doc. S/2009/589, 13 November 2009; and ‘Resolution 1900 (2009) Adopted by the Security Council at its 6242nd Meeting, on 16 December 2009’, S/ RES/1900 (2009). 51. UN Security Council S/2007/663, 12 November 2007, ‘Letter dated 12 November 2007 from the President of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, addressed to the President of the Security Council. 52. Ibid., para. 32. 53. ICTY (2008), ‘Partnership and Transition between the ICTY and National Courts’, http://www.un.org/icty/cases- e/factsheets/partnership- e.htm, retrieved 20 September 2008. 54. ‘Serbia Must Boost Support for War Crimes Chamber’, Human Rights Watch, 28 June 2007. http://hrw.org/english/docs/2007/06/28/serbia16252_txt. htm, retrieved 22 October 2008. 55. Human Rights Watch (2008), ‘Unfinished Business: Serbia’s War Crimes Chamber: Overview’http://hrw.org/backgrounder/ECA/serbia0607/3.htm, retrieved 22 October 2008. 56. Council of Europe, Parliamentary Assembly, ‘Honouring of Obligations and Commitments by Bosnia and Herzegovina’, Resolution 1626 (2008), 30 September 2008. 57. Amnesty International (2008b), ‘Croatia: A window of opportunity to end war crimes inpunity’, press release, 11 April 2008. 58. Human Rights Watch (2007), ‘Serbia Must Boost Support for War Crimes Chamber’, 28 June 2007. http://hrw.org/english/docs/2007/06/28/ serbia16252_txt,htm Retrieved 22 October 2008. 59. G. Oosthuizen and R. Schaeffer (2008), ‘Complete Justice: Residual Functions and Potential Residual Mechanisms of the ICTY, ICTR and SCSL’, Hague Justice Journal, 3, no. 1/2008: 48–67. 60. ‘Summary of the Tadic Verdict’, press release, 7 May 1997, CC/PIO/190- e, Appendix D in Scharf, Balkan Justice, 1997. 61. ‘The Prosecutor v. Dusko Tadic, Case No. IT-94-I-AR72’. See also ICTY press release CC/PIO/021- e, 2 October 1995: ‘Appeals Chamber Judges Unanimously Confirm the Tribunal’s Jurisdiction’. 62. ‘Serbia Apologizes for Srebrenica Massacre’, International Justice Desk, Radio Nederland Wereldomroep, 31 March 2010, http://www.rnw.nl/ international-justice/print/74448, retrieved 7 April 2010. 63. ICTY (2008), ‘The Tribunal’s Core Achievements’. http://www.un.org/icty/ cases- e/factsheets/achieve- e.htm Retrieved 20 September 2008. 64. ICTY Press Release, ‘Furundzija Case: The judgment of the Trial Chamber’, 10 December 1998, http://www.icty.org/sid/7609, retrieved 15 April 2009.

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294

Notes

65. J. Pejic (2002), ‘Accountability for International Crimes: From Conjecture to Reality’, International Review of the Red Cross, Vol. 84, No. 845: 15–16. 66. ‘Prosecutor v. Dusko Tadic, Case No. IT-94-I-AR72: Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction’, 2 October 1995. 67. R. Zacklin (2004), ‘The Failings of Ad Hoc International Tribunals’, Journal of International Criminal Justice, Vol. 2 (2004): 541–5. 68. G.K. McDonald (2003), ‘Assessing the Impact of the International Criminal Tribunal for the Former Yugoslavia’, in S.R. Ratner and J.L. Bischoff (eds) International War Crimes Trials: Making a Difference? Proceedings of an International Conference Held at the University of Texas School of Law, November 6–7, 2003 (Austin, Texas): 16. 69. Claude Jorda (France) was Judge at the ICTY since January 1994, and was appointed President of this Tribunal by his peers in November 1999. He was elected to the ICC in February 2003 as Chair of the Pre-Trial Division and resigned for health reasons in May 2007. 70. F. Petit (2005), ‘Interview with Judge Claude Jorda: A Trial Should Never Last More than 18 Months Total’, International Justice Tribune Collection 2006, IJT38, 19 December 2005: 63. 71. United Nations Security Council, ‘The Rule of Law and Transitional Justice in Conflict and Post- conflict Societies’, Report of the Secretary- General, S/2004/616, 23 August 2004: para. 42. 72. The estimated cost for a major trial at the ICTY or ICTR is about $50 million; a ‘mega trial’ in the United States, such as the Oklahoma bombing case, can cost $70 million or more. See: ‘Bargain Justice from the ICTY’, 24 July 2008. http://www.undispatch.com/archives/2008/07/bargain_justice.php, retrieved 5 October 2008. 73. Moghalu: 75.

3

The International Criminal Tribunal for Rwanda

1. The information and assessments in this section are based on the report entitled Rwanda: The Preventable Genocide, called OAU Report hereunder, submitted on 29 May 2000 by an International Panel of Eminent Personalities mandated by the Organization of African Unity, supplemented by other references. The Panel’s mandate was ‘to investigate the 1994 genocide in Rwanda and the surrounding events in the Great Lakes Region ... as part of efforts aimed at averting and preventing further wide-scale conflicts in the ... Region’. Panel Members were the former Presidents of Botswana and Mali, the Chairperson of the Swedish Committee for UNICEF, a former Liberian Government Minister, a former Chief Justice of the Supreme Court of India, a former Algerian Ambassador, a former Canadian Ambassador and Permanent Representative of Canada to the UN, http://www.Africa-union.org/Official_documents/ reports/Report_rowanda_genocide.pdf, retrieved 21 November 2008. 2. ICTR Judgement 97-23- S, quoted by the OAU Report, para. 14.4. 3. Security Council resolutions 872 of 5 October 1993 and 912 of 21 April 1994. 4. ‘Letter dated 15 December 1999 from the Secretary- General addressed to the President of the Security Council’ enclosing copy of the Carlsson Report, S/1999/1257, 16 December 1999.

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Notes 295 5. See Note 1. 6. UN Security Council, S/PRST/1994/16, 7 April 1994. 7. K.C. Moghalu (2008), Global Justice: The Politics of War Crimes Trials (Stanford, CA: Stanford University Press): 20. 8. US Law U.S.C. 1091, 25 November 1988. 9. Article II of the Convention: In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. 10. UN Security Council, S/1994/1125, 4 October 1994. 11. Doc. S/1994/115, 29 September 1994. 12. Thirteen of the Council’s members voted for resolution 955, China abstained and Rwanda voted against. 13. See: ICTR, ‘General Information’, http://www.ictr.org/ENGLISH/geninfo/ index.htm, retrieved 2 September 2010. 14. UNGA res. 50/213, 50 UN GAOR Supp. (No. 49) at 24, UN Doc. A/50/49 (Vol. II) (1995), UN Doc. A/51/789 (1997). 15. US Daily Bulletin, Geneva, AEF304, 12 February 1997, AEF301, 26 February 1997. 16. UN Doc. A/52/784, 6 February 1998, p. 2, paras 111 and 112, A/54/393, 23 September 1999, paras 70, 71 and 89, A/C.5/54/SR.22, 1 February 2000, para. 26. 17. See press release, ICTR/INFO-9-2-266.EN, 21 May 2001. 18. http://www.internews.org/activities/ICTR_Reports/ICTRnewsMay02/html, retrieved 22 February 2004. 19. ‘Un avocat au TPIR renvoyé pour malhonnêteté et fraude’, AFP, http://www. mdrwi.org/rapports%20et%20doc/tpir%20justice%20int, 28 October 2004, retrieved 16 August 2010 – including a reply by Me Degli. 20. As reported in Charles Onana, Les secrets de la justice internationale (Paris: Ed. Duboiris, 2005): 397. 21. ICTR ‘Status of Cases’. http://69.94.11.53/ENGLISH/cases/status/htm, retrieved 29 August 2010. 22. These notes are based on ‘Case Information Sheets’ produced by the Tribunal, but not as official documents. 23. Press release ICTR/INFO-9-2-138, 2 September 1998, IHT, 3- 4 October 1998. See also 54th General Assembly, p. 274, press release ICTR/INFO-9-2-269. EN, 1 June 2001. 24. UN General Assembly res. 50/213 C, Doc. A/51/789, 6 February 1997. 25. Undated report (probably 1997) ‘The Position of the Government of the Republic of Rwanda on the International Criminal Tribunal for Rwanda (ICTR)’, http://www.rwandemb.org/prosecution/position.htm, retrieved 23 February 2004.

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296 Notes 26. For a detailed description and assessment of this case, see chapter 5, ‘A Baptism of Fire: The Barayagwiza Affair’, in K.C. Moghalu (2005), Rwanda’s Genocide: The Politics of Global Justice (New York/Basingstoke: Palgrave Macmillan). 27. ‘Appeals Chamber: Jean-Bosco Barayagwiza v. The Prosecutor, Decision, 3 November 1999’. 28. International Herald Tribune (1999), ‘Order to Release Suspect Puts Court in a Bind’, 20 December 1999. 29. Moghalu: 117. 30. United Nations Commission on Human Rights (1994), ‘Report on the situation of Human Rights in Rwanda submitted by Mr. R. Degni-Ségui, Special Rapporteur of the Commission on Human Rights’, Doc. E/CN.4/S-3/1 of 25 May 1994: paras 22, 54, 62, 63. 31. United Nations Commission of Experts (1994), ‘Letter dated 1 October 1994 from the Secretary- General addressed to the President of the Security Council enclosing the Preliminary report of the Commission of Experts Established Pursuant to Security Council Resolution 935 (1994)’, S/1994/1125, and ‘Final Report’, S/1994/1405, 9 December 1994. 32. Robert Gersony’s report, following his five-week field trip to Rwanda on behalf of the UN High Commissioner for Refugees, was blocked by the then Secretary- General of the UN, Boutros Boutros- Ghali, who then sent Kofi Annan to Rwanda to inform the new RPF government that the report would not be published, according to Human Rights Watch: ‘because the international community understood the difficult context in which the new government was operating’. The existence of the Gersony report is formally denied by the UN. See ‘Rwanda in the Congo’, http://www.willum.com/ dissertation/2rwandaincongo.pdf, retrieved 1 December 2008. 33. T. Cruvellier (2007), ‘International Tribunal for Rwanda: “The Troubled Mandate” ’ International Justice Tribune, Series No. 2, Justice Memo. Paris: 43. 34. P. Erlinger (2008), ‘The “Rwanda Genocide” Cover-up’, Truthout, http://www. truthout.org/article/uns-louise-arbour-under-fire- over-rwanda, retrieved 1 December 2008: 5. 35. C. Del Ponte (2008), Madame Prosecutor, Confrontations with Humanity’s Worst Criminals and the Culture of Impunity, A Memoir, with Chuck Sudetic (New York, Other Press), 178. 36. F. Hartmann (2007). Paix et châtiment, Les guerres secrètes de la politique et de la justice internationale (Paris, Flammarion), 268-71. 37. Fédération Internationale des Ligues des Droits de l’Homme, Lawyers Committee for Human Rights, Human Rights Watch, Rencontre Africaine pour la Défense des Droits de l’Homme. 38. Human Rights Watch (2003), ‘Security Council: Do Not Undermine ICTR’s Independence, Letter to Council Members on Eve of Meeting with Lead Prosecutor’, 7 August 2003. http://hrw.org/press/2003/08/rwanda080703ltr. htm, retrieved 16 August 2003. 39. International Herald Tribune (2003), ‘Rwanda Seeking Ouster of War- Crimes Prosecutor, Del Ponte Draws Anger over Probes of Tutsi’, 29 July 2003. 40. Security Council resolutions S/RES/1503 (2003) of 28 August 2003 (para. 8), 1504 (2003) and 1505 (2003) of 4 September 2003. 41. Under Article 8 of its Statute, the ICTR and national courts have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in Rwanda and Rwandan citizens for such

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Notes 297

42.

43.

44.

45.

46. 47.

48.

49.

50.

51.

violations committed in the neighbouring States, between 1 January 1994 and 31 December 1994. However, the ICTR has primacy over the national courts of all States. At any stage of the procedure, the ICTR may formally request national courts to defer to its competence. International Criminal Tribunal for Rwanda (2008), ‘Statement by Justice Hassan B. Jallow, Prosecutor of the ICTR, to the UN Security Council’, 4 June 2008, http://69.94.11.53/ENGLISH/speeches/jallow080604.htm, retrieved 20 November 2008. World News Journal (2008), ‘Letter from ICTR Detainees to the SG Ki Moon and the ICTR President’ of 29 June 2008, on the subject of ‘Denunciation of the Obstruction of Justice by the ICTR Prosecutor’. N. Fritz (2008), ‘When International Justice Is Feared as Colonisation by Law, the Application of Global Legal Accountability Is No Open and Shut Case’, The Times – South Africa, 25 May 2008. ICTR, ‘Letter dated 12 May 2008 from the President of the International Criminal Tribunal for Rwanda to the President of the Security Council, Report on the Completion Strategy of the International Criminal Tribunal for Rwanda’, Doc. S/2008/322, 13 May 2008, paras 48, 50. ICTR, Doc. A/63/209- S/2008/514, 4 August 2008, paras 15, 35, 36, 37. Human Rights Watch (2008b), ‘Law and Reality: Progress in Judicial Reform in Rwanda’, ‘Rwanda: Progress in Judicial Reforms Falls Short’, 23 July 2008, http://www.hrw.org/en/news/2008/07/23/rwanda-progress-judicialreforms-falls-short, retrieved 8 December 2008. Conference organized by the Belgian organization Redress and the organization African Rights in May 2008. ‘ICTR/Rwanda – Rejection of Suspects’ Transfers is Lack of Respect to National Courts’, Hirondelle News Agency, Arusha, 2 July 2008, http://www.hirondellenews.com/content/ view/2211/517/, retrieved 8 December 2008. ‘ICTR/UN – ICTR Appeals Chamber to Continue Work until Mid-2013’, Hirondelle News Agency, Arusha, 12 June 2009, http://www.hirondellenews. com/content/view/3428/333/, retrieved 5 September 2009. ‘Address to the United Nations General Assembly, 13th Annual Report of the ICTR,’ ICTR, Judge Dennis Byron, President, 13 October 2008. http://69.94.11.53/ENGLISH/speeches/byron081013.htm, retrieved 20 November 2008. A report documenting the most serious human rights violations committed in the Democratic Republic of the Congo by the Office of the UN High Commissioner for Human Rights was to be made public on 1 October 2010. The report, leaked before, alleges that Rwanda and its military allies carried out systematic waves of well-planned, highly organized reprisal killings against Hutu refugees in 1994 and later years. The Rwandan government issued a statement challenging the findings. The Washington Post, ‘U.N. says Rwandan troops carried out mass killings in the ’90s’, 29 August 2010.

4 Special Panels for Serious Crimes in East Timor – Now Timor-Leste On 20 May 2002, the country declared its independence under the name of Timor-Leste.

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298

Notes

1. International Center for Transitional Justice (ICTJ), ‘The Serious Crimes Process in Timor-Leste: In Retrospect’, by C. Reiger and M. Wierda, March 2006. See I.A. Brief History of the Conflict, I.B. Nature of the Atrocities: 4–8, http://www.ictj.org/static/Prosecutions/Timor.study.pdf, retrieved 24 January 2009. 2. This resolution was adopted by 72 votes to 10, with 43 abstentions: the USSR and China voted for the resolution, while the United States, India, Japan and the Philippines voted against, and France and the United Kingdom abstained. A similar pattern of voting was observed in the voting of subsequent General Assembly resolutions, 32/34 (1977), 33/39 (1978), 39/40 (1979), 35/27 (1980), 36/50 (1981), 37/30 (1982). 3. The Force was led by Australia and consisted of troops from Australia, Britain, Thailand and other countries. In addition, 200 US troops provided communications and logistical support. 4. See Security Council resolutions 1410 (2002) and 1599 (2005). 5. UN Doc. A/54/660, ‘Situation of Human Rights in East Timor’, 10 December 1999. The visit of the Rapporteurs took place from 4 to 10 November 1999. 6. Doc. A/54/660, paras 71–2. In para. 49, the report says that ‘TNI officers were both perpetrators of sexual violence and directly involved in the command of the militia’. 7. Doc. A/54/726- S/2000/59 of 31 January 2000: paras 123, 128. 8. ICTJ, 2006: 6. 9. Para. 74.6 of Doc. A/54/660 and para. 153 of Doc. A/54/726- S/2000/59. 10. Law 26/2000 and decrees 53/2001, 96/2001. 11. Coalition for International Justice (2004), ‘Unfulfilled Promises, Achieving Justice for Crimes against Humanity in East Timor’, November 2004, http:// www.globalpolicy.org/intljustice/tribunals/timor/2004/1104unfulfilled. pdf, retrieved 26 January 2009: 2, 3, 21. 12. UN Doc. S/2005/458 of 15 July 2005, ‘Letter dated 24 June from the Secretary- General addressed to the President of the Security Council’ and Annex 1. 13. Details on East Timor accused are found in http://www.trial- ch.org/trialwatch/profil_print.php?ProfileID= 14. The other seven were: Major- General Damiri, Major- General Makarim, Colonel Muis, Governor Soares, Lieutenant Colonel Sudrajat, Colonel Suratnam, Major- Colonel Syahnakri. 15. See UNTAET Regulations 2000/11, /14, /15, /16, /18, /25. 16. ICTJ, 2006: 12–13. 17. Judicial System Monitoring Programme (JSMP) (2005), ‘The Future of Serious Crimes’, T.A. Sarmento, Victoria University, Melbourne, Australia, 16–18 June 2005. http://www.jsmp.minihub.org/Reporst/Other%20Reports/ Melbourne%20Symposium/Tiago%20Speech/THE%FUTURE%20OF%20 SERIOUS%20CRIMES%5B1%5D,by%20Tiago.pdf, retrieved 2 February 2009: 7–9. 18. ICTJ, 2006: 30. 19. JSMP, 2007: 13–15. 20. See JSMP Justice Update, ‘The Special Panels for Serious Crimes Hear Their Final Case’ (Issue 12/2005). 21. ICTJ, 2006: 21–2, 32–3.

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Notes 299 22. U.N. Wire, 2003, http://www.unwire.org/U.N.Wire/20030228/32304 story. asp. retrieved 6 September 2010. 23. ICTJ, 2006: 32–3. 24. To this end, it included a novel provision for the establishment of Community Reconciliation Procedures (CRP) for relatively less serious crimes, in complement to the Serious Crimes process. UNTAET Regulation 2002/9 of 18 May 2002 amended Regulation 2001/10 to specify that ‘in principle, serious criminal offences, in particular, murder, torture and sexual offences shall not be dealt with by a CRP’. 25. Commission for Reception, Truth and Reconciliation, Timor-Leste – CAVR Report, 2005: 23–7, http://www.cavr-timorleste.org/, retrieved 30 January 2001. 26. JSMP, 2005: section 6. 27. ‘Letter dated 24 June 2005 from the Secretary- General addressed to the President of the Security Council’ enclosing a summary of the report of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999, and the full report (Annexes I and II), UN Security Council, S/2005/458, 15 July 2005: Annex I, para. 20. 28. J. Kingston (2007), ‘East Timor’s Search for Justice, Reconciliation and Dignity’, in E. Hughes, W.A. Schabas and R. Thakur (eds) Atrocities and International Accountability: Beyond Transitional Justice (Tokyo: United Nations University Press): 88–9. 29. Global Policy Forum (2007), ‘UN Boycotts East Timor Truth Commission over Amnesty Concerns’, Associated Press, 27 July 2007, ‘Indonesia Criticizes UN Chief over Stance on E. Timor Commission’, Earthtimes. org, 31 July 2007, http://www.globalpolicy.org/intljustice/tribunals/ timor/2007/0727unboycott.htm, and http://www.globalpolicy.org/intljustice/tribunals/timor/2007/0731indcrit.htm, both retrieved 3 February 2009. 30. ICTJ, 2008: 39–40. 31. Only Enrico Guterres, a Timorese militia commander, served part of his jail sentence, before he was acquitted by the Supreme Court. 32. See Note 28. 33. Among these NGOs: Amnesty International, Human Rights Watch, Caritas Australia, East Timor Action Network.

5

The Special Court for Sierra Leone

1. See ‘Sierra Leone – UNAMSIL Background’, http://www.un.org/en/peacekeeping/ missions/past/unamsil/background.html, retrieved 19 April 2010. 2. Steven D. Roper and Lilian A. Barria (2006), Designing Criminal Tribunals: Sovereignty and International Concerns in the Protection of Human Rights (Aldershot (UK)/Burlington (US): Ashgate Publishing): 32. 3. ‘Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone’, UN Doc. S/1999/777, 12 July 1999, Art. IX(2), XXVI(1). 4. Human Rights Watch (2000), ‘Letter of 19 May 2000’, http://www.hrw.org/ press/2000/05/sl-ltr0519.htm. retrieved 12 December 2000.

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300 Notes 5. Security Council Resolutions 1306 of 5 July 2000, 1343 of 7 March 2001, and 1459 of 28 January 2003. Rough diamonds have been used by the Revolutionary United Front with the support of Taylor’s Liberia to finance the war against the Sierra Leone government. Since 2002, the Kimberley Process Certification Scheme imposes stringent requirements to certify the conflict-free origin of diamonds. 6. Roper and Barria: 31–4. 7. UN News Wire, 2 August 1999, Le Monde, 30 November 1999. 8. See ‘Expedited UN Criminal Tribunal Urged, Letter to UN Security Council on Sierra Leone’, Human Rights Watch, http://www.hrw.org/press/2000/05/ sl-ltr0519.htm, 19 May 2000; ‘Decisive UN Action on Sierra Leone Urged’. [email protected], 20 June 2000; IHT, 21 June and 29–30 July 2000. 9. K.C. Moghalu (2008), Global Justice: The Politics of War Crimes Trials (Stanford, CA: Stanford University Press): 107. 10. UN Doc. S/2000/1234, 22 December 2000. 11. ‘Letter from the Secretary- General to the President of the Security Council’, UN Doc. S72001/693, 13 July 2001. However, the Court would be established once the Secretary- General had ascertained that sufficient contributions were in hand. 12. See ‘Sierra Leone: UN, Government Sign Historic Accord to Set Up Special War Crimes Court’, UN News Center, 16 January 2002. 13. International Center for Transitional Justice, ‘The Special Court for Sierra Leone Under Scrutiny’, T. Petriello and M. Wierda, March 2006: 15. 14. United Nations Security Council, S/2007/338, Annex III, 7 June 2007. 15. Special Court for Sierra Leone (2008), ‘Special Court Prosecutor Welcomes Final Judgment in AFRC Case’, press release, 22 February 2008. 16. Common Dreams (2008), ‘Sierra Leone: War Crimes Ruling Bolsters Victim Protection, Reason for Fighting Cannot Reduce Penalties’, Human Rights Watch, 28 May 2008, http://www.commondreams.org/news2008/0528- 09. htm, retrieved 22 December 2008. 17. Special Court for Sierra Leone, Outreach and Public Affairs Office press release, 26 October 2009, ‘Appeals Chamber Upholds Sentences for Convicted Revolutionary United Front Leaders’. 18. Special Court for Sierra Leone, Outreach and Public Affairs Office press release, 31 October 2009, ‘Special Court Prisoners Transferred to Rwanda to Serve Their Sentences’. 19. Moghalu: 111. 20. In its Judgment delivered on 14 February 2002 in the case concerning the ‘Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium)’, the ICJ found that the issue and international circulation by Belgium of the arrest warrant of 11 April 2000 against Mr. Abdulaye Yerodia Ndombasi failed to respect the immunity from criminal jurisdiction and the inviolability which the Minister enjoyed under customary international law, and that Belgium must cancel the arrest warrant. However, the Court made it clear that immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does not mean that they enjoy impunity in respect of any crimes they might have committed, irrespective of their gravity. As one of the four exceptions to the principle of immunity, the Court

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Notes 301

21. 22.

23. 24.

25. 26.

27. 28.

29.

30. 31. 32. 33. 34.

35. 36.

37.

stated that incumbent or former Foreign Ministers may be tried by international criminal courts or tribunals if their founding Statutes so provide: examples named by the ICJ are the ICTY, the ICTR and the ICC. ‘Summary of Decision on Immunity from Jurisdiction – Prosecutor v. Charles Ghankay Taylor’, Case SCSL-2003- 01-I, 31 May 2004. Art. 6.2 of the Statute of the Sierra Leone Special Court states: ‘The official position of any accused persons, whether as Head of State or Government or as a responsible government official, shall not relieve such persons of criminal responsibility nor mitigate punishment’. Information in this section is based on Moghalu: 114–19. Article 27 of the Rome Statute, ‘Irrelevance of official capacity’: 1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person. Moghalu: 118–9. See Amnesty International, ‘Special Court for Sierra Leone. A Historic Decision to Reject Amnesty for Crimes under International Law’, AI Index: AFR 51/006/2004, 18 March 2004, which also includes AI’s concerns about certain aspects of the Court’s reasoning in reaching that decision. Case No. SCSL-2004-15-PT, and SCSL-2004-16-PT, ‘Summary of decision’, 13 March 2004. ‘Summary of Decision on Preliminary Motion Based on Lack of Jurisdiction (child recruitment) – Prosecutor v. Sam Hinga Norman’, Case Number SCSL2003-14-AR72(E), 31 May 2004. Article 8, ‘War Crimes’ 2.(a) (xxvi) of the Rome Treaty includes grave breaches of the Geneva Conventions of 1949 as war crimes: ‘Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities’. Seventh Annual Report of the President of the Special Court for Sierra Leone, June 2009 to May 2010, Completion Strategy, 35. See Security Council res. 1260 (1999), para. 10, 20 August 1999. UN Doc. S/2000/915, para. 8. TRC Act 2000, s. 6(1). Information in this section is based on Priscilla Hayner’s report of January 2004, International Center for Transitional Justice (2004): ‘The Sierra Leone Truth and Reconciliation Commission: Reviewing the First Year’. Hayner: 7. Justice in Perspective (2007), ‘Truth and Reconciliation Commission, Africa, Sierra Leone’, latest update, January 2008. www.justiceinperspective.org.za/ index.php?option=com_content&task=view&i, retrieved 20 December 2008. D.M. Crane (2007), ‘Dancing with the Devil: Prosecuting West Africa’s Warlords – Current Lessons Learned and Challenges’, in E. Hughes, W.A.

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302

Notes

Schabas and R. Thakur (eds) Atrocities and International Accountability: Beyond Transitional Justice, (United Nations University Press): 137. 38. Chatham House (2007), ‘The Special Court for Sierra Leone and How it Will End, A Summary of the Chatham House International Law Discussion Group Meeting of 9 July 2007’, http://www.chathamhouse.org.uk/files/9574_ il090707.pdf, retrieved 19 December 2008. 39. Crane: 138–9. 40. Crane: 141.

6 The Extraordinary Chambers in the Courts of Cambodia 1. See B. Kiernan (1996), The Pol Pot Regime: Race, Power and Genocide under the Khmer Rouge (New Haven, CT/London: Yale University Press): 8. 2. New York Times, 30 July 1997; Le Monde, 2 August, 25 October 1997 and 17 April 1998. 3. UN Security Council res. 745 (1992) of 28 February 1992. 4. UN Doc. ‘Identical letters dated 23 June 1997 from the Secretary- General addressed to the President of the General Assembly and to the President of the Security Council’, attaching the letter of 21 June 1997 from the two prime Ministers of Cambodia. 5. UNGA res. A/51/930, S/1997/488, 24 June 1997; S.D. Roper and L.A. Barria (2006), Designing Criminal Tribunals: Sovereignty and International Concerns in the Protection of Human Rights (Aldershot (UK)/Burlington (US): Ashgate Publishing): 34–5. 6. International Herald Tribune, 19 September 1996. 7. General Assembly res. 52/135. 8. Le Monde, 31 December 1998. 9. International Herald Tribune, 29 December 1998. 10. ‘Report of the Group of Experts for Cambodia established pursuant to UNGA res. 52/135’, transmitted by the Secretary- General with his own report on 15 March 1999, UN Doc. A/53/850, S/199/231, paras 15, 16, 35, 137. 11. UNGA res. 57/228 A. 12. ‘Report of the Secretary- General on the Khmer Rouge Trials’, UN Doc. A/57/769, 31 March 2003, paras. 13–14. 13. UNGA res. 57/228B, 13 May 2003; Doc. A/57/806. 14. Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, with inclusion of amendments (Kram NS/RKM/1004/006), unofficial translation by the Council of Jurists and the Secretariat of the Cambodian Government Task Force, revised on 23 November 2004. 15. ECCC, ‘Internal Rules (Rev.2), Procedure’, 5 September 2008, http://www. eccc.gov.kh/english/cabinet/fileUpload/88/IR_Revision2_05- 01- 08_En.pdf, retrieved 22 March 2009. 16. Article 43.6 of the 1998 Rome Statute of the International Criminal Court provides for a Victims and Witnesses Unit within the Registry, and article 68.3 allows the victims’ views and concerns to be presented and considered at appropriate stages of the proceedings under certain conditions. However, the Statute does not give victims a ‘Civil Party’ status.

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Notes 303 17. ‘7th Plenary Session of Judges of the ECCC’, 2–9 February 2010; ‘Defence Support Section: Press Statement’, 9 February 2010, http://www.eccc.gov.kh, retrieved 22 April 2010. 18. ECCC, ‘Revised Budget Estimates from 2005 to 2009’, July 2008: 3, 5, 8, http://www.unakrt- online.org/Docs/Other/2005- 09%20ECCC%20 Approved%20Budget.pdf, retrieved 22 March 2009. 19. ‘Budget Estimates from 2005 to 2009’, ECCC, July 2008; ‘List of Pledging Donors for UN Share for Establishment of the Extraordinary Chambers’ and ‘ECCC Budget Cambodian side’, 12 March 2009, http://www.eccc.gov.kh/ english/un_finances.aspx, retrieved 14 March 2009. 20. International Justice Tribune (2007b), ‘Five Khmer Rouge to Go before the Judges’, No. 72, 23 July 2007; Trial Watch (2009a), ‘Kaing Guek Eav’, 17 February 2009, http://www.trial- ch.org/trialwatch/profil_print. php?ProfileID=313&Lang=en, retrieved 21 March 2009. 21. See Trial Watch, Ta-mok profile: http://www.trial- ch.org/en/resources/trialwatch/trial- ... =ta-mok, retrieved 6 September 2010. 22. ECCC, Press Release, ‘First ECCC Trial on Crimes of 1970s Khmer Rouge Regime Officially Opens’, 17 February 2009. khmernews.wordpress.com/2009/ ... / press- release- first- eccc- trial- on- crimes- of-1970s- khmer- rouge- regimeofficially- ... retrieved 22 March 2009. See also, The Economist, 4 August 2007; Le Monde, 29 February 2008, 17, 18 February 2009; International Herald Tribune, 18 February, 2 March 2009. 23. ECCC, ‘Statement from the Co-Prosecutors’, 16 August 2010, http://www. eccc.gov.kh/english/news.view.aspx?doc_id=363, retrieved 6 September 2010. 24. Trial Watch (2008), ‘Ieng Sary’, 10 July 2008, http://www.trial- ch.org/trialwatch/profil_print.php?ProfileID=660&Lang=en, retrieved 21 March 2009. 25. T. Bell (2007), ‘Khmer Rouge Couple Charged with War Crimes’, Telegraph.co.uk, 13 November 2007, http:/www.telegraph.co.uk/news/ worldnews/1569127/K hmer- Rouge- couple- charged- with- war- crimes, retrieved 19 March 2009. 26. The Post.blog (2009), ‘Ieng Thirith Threatens Court with Hell; Ieng Sary Plans to Highlight Poor Health’, 25 February 2009, http://www.Phnompenhpost. com/index.php/component/option,com_myblog/Itemid,14, retrieved 21 March 2009. 27. F. Deron (2008), ‘L’ex- dirigeant khmer rouge Nuon Chea face à ses victimes’, F. Deron, Le Monde (2008), 10–11 February 2008. 28. International Herald Tribune, (2004),’Khmer Rouge leader now pleads ignorance, Shift comes as trial for genocide nears’, Seth Mydans, 5 January 2004. 29. ECCC, ‘Co-Prosecutors Request Indictment of Nuon Chea, Ieng Sary, Khieu Samphan and Ieng Thirith,’ 16 August 2010, http://www.eccc.gov.kh/ english/news,view.aspx?doc_id=364 Retrieved 29 August 2010. 30. For instance: Newsweek, 6 October 2007; International Justice Tribune, 8 October 2007. 31. United Nations Development Programme (2007), ‘Audit of Human Resources Management at the Extraordinary Chambers in the Courts of Cambodia (ECCC)’, Report No. RCM0172, 4 June 2007. 32. Attachments I and II to UNDP report of 4 June 2007.

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304 Notes 33. ‘ECCC Special Human Resources Management Review, Summary’, commissioned by UNDP/EC/UNDESA and submitted by the HRM Review Team, 26 March 2008. 34. Open Society Justice Initiative (2009), ‘Long-Awaited Agreement to Tackle Corruption at the Khmer Rouge Tribunal Contains Major Flaws’, 24 February 2009. 35. ECCC, ‘Remarks by the Director of the Office of Administration at Press Conference on Results of the Special Review’, 25 April 2008. 36. J.A. Hall (2008), ‘Don’t Pave Cambodia’s Flawed Path to Justice’, The Christian Science Monitor, 15 January 2008, http://www.csmonitor.com/2008/0115/ p09s02- coop.html, retrieved 24 March 2009. 37. United Nations General Assembly (2003), ‘Report of the Secretary- General on Khmer Rouge Trials’, Doc. A/57/769, 31 March 2003. 38. M. Macan-Marcar (2006), ‘Hun Sen’s Hand in Genocide Trial Delays?’ Inter Press Service News Agency, 27 November 2006, War Crimes Prosecution Watch, Vol. 2, no. 8, 11 December 2006: 2, http://www.publicinternationallaw. org/warcrimeswatch/archives/wcpw_vol02issue08, retrieved 16 October 2008. 39. N. Pheaktra and G. Wilkins (2009), ‘Judges Should Focus on Current KR Suspects: Govt’, The Phnom Penh Post, 12 March 2009. 40. ECCC (2009c), ‘Statement regarding prosecutorial disagreement’, 2 September 2009, http://www.eccc.gov.kh/english/news.view.aspx?doc_ id=308, retrieved 5 September 2009. 41. Cambodge Soir, ‘Khmers Rouges: Robert Petit démissionne’, 23 June 2009, http://www.cambodgesoir.info/index.php?option=com_contenr&vie, retrieved 5 September 2009. 42. S. Strangio (2008), ‘Cambodia: Whose Tribunal Is It Anyway?’, Global Policy Forum, 18 February 2008, http://www.globalpolicy.org/intljustice/tribunals/ cambodia/2008/021anyway.htm, retrieved 14 March 2009. 43. Le Monde (2001), ‘Le procès des Khmers rouges n’en finit pas de se préparer’, J.C. Pomonti, 4 July 2001. 44. The Economist (2001), ‘China, The Ghosts of Misdeeds Past’, 13 January 2001. 45. The US presence in Vietnam ended on 30 April 1975 with the fall of Saïgon and the victory of the Viet Cong. 46. Le Monde 2 (2009), ‘Sihanouk dans l’ombre des Khmers rouges’, F. Deron, 28 February 2009. 47. US document declassified on 27 July 2004, No. 200303692. See also S. Power (2002), ‘A Problem from Hell’: America and the Age of Genocide (New York: Basic Books). 48. G. Nelaeva (2007), ‘Prosecution of Rape and Sexual Assaults as International Crimes, Explaining Variations’, unpublished dissertation (Budapest: Central European University): 126, n180. 49. J.P. Cerone (2007), ‘Dynamic Equilibrium: The Evolution of US Attitudes towards International Criminal Courts and Tribunals’, The European Journal of International Law 18, no. 2: 311–13. 50. Nelaeva: 126 n 180, and 128–30. 51. About 70 per cent of the Cambodian population is under the age of 30 (Mydans, 2009).

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Notes 305 52. S. De Bertodano (2007), ‘Were There More Acceptable Alternatives to the Iraqi High Tribunal?’ Journal of International Criminal Justice, Vol. 5: 294–300. 53. In 2007, a weekly average of 21.9 articles relating to the ECCC was published in the Cambodian press, that is, in Cambodian newspapers publishing in Khmer, English and French. This has risen to 27.3 articles per week in 2008. From May to December 2007, a weekly average of 22.3 radio programmes were aired in Cambodia on issues related to the ECCC. From January to June 2008, the average was 19.6 radio programmes per week. The Court Report, The Extraordinary Chambers in the Courts of Cambodia, Moving Forward Through Justice, February 20; International Herald Tribune.

7

The Special Tribunal for Lebanon

1. See ‘Lebanon/History’, by Tore Kjeilen, and ‘Political Situation’, Looklex Encyclopedia, http://looklex.com/e.o/lebanon.history.htm, retrieved 9 September 2010. 2. The Taif Agreement (also ‘National Reconciliation Accord,’ or ‘Document of National Accord’) was an agreement reached to provide the basis for the ending of the civil war and the return to political normalcy in Lebanon. Negotiated in Taif, Saudi Arabia, it was designed to end the decades-long Lebanese civil war, politically accommodate the demographic shift to a Muslim majority, reassert Lebanese authority in South Lebanon (then occupied by Israel), and legitimize the Syrian presence in Lebanon, though the agreement set a time frame for Syrian withdrawal and stipulated that the Syrians withdraw in two years. It was signed on 22 October 1989 and ratified on 4 November 1989. 3. ‘Statement of the President of the Security Council’, Doc. S/PRST/2005/4, 15 February 2005. 4. See Resolution S/RES/1595 (2005) of 7 April 2005. The Report of the factfinding Mission is in Doc. S/2005/203. 5. ‘Letter dated 20 October 2005 from the Secretary- General addressed to the President of the Security Council’ transmitting ‘the report of the United Nations International Independent Investigation Commission (IIIC) prepared pursuant to resolution 1595 (2005)’, Doc. S/2005/662, 20 October 2005. 6. ‘Letter dated 12 December 2005 from the Secretary- General addressed to the President of the Security Council’ attaching the second report of the IIIC: Doc. S/2005/775, Annex, 10 December 2005: para. 21. 7. Doc. S/2005/783, 13 December 2005. 8. Resolution 1644 (2005) of 15 December 2005. 9. Resolution 1757 (2007), of 30 May 2007, with Annex: Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal. 10. D.A. Bellemare, ‘Eleventh report of the International Independent Investigation Commission established pursuant to Security Council resolutions 1595 (2005), 1636 (2005), 1644 (2005), 1686 (2006), 1748 (2007) and 1815 (2008), 3 December 2008’.

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306 Notes 11. Nassim (Damascus, Syria), ‘Hariri Endless Investigation and Pending Justice’, Instablogs, 4 December 2008. http://liberator.instablogs.com/entry- endlessinvestigation ... retrieved 26 July 2009. 12. M. Milanovic (2007), ‘The Oddity that Is the Hariri Tribunal’, Paper presented at the 2007 AHRI conference, http://ssrn.com/abstract=1014906: 1, 24 April 2010. 13. The Defence Office ‘shall protect the rights of the defence, provide support and assistance to defence counsel and to persons entitled to legal assistance, including, where appropriate, legal research, collection of evidence and advice, and appearing before the Pre-Trial Judge or a Chamber in respect of specific issues’ (Art. 13.2 of the Statute). 14. On 10 October 2008, Lebanon’s Justice Minister presented to the government a draft law for the abolition of the death penalty. 15. ‘Special Tribunal for Lebanon, Annual Report (2009–2010)’: 8. 16. Art. 5 of the Agreement – see Note 9. 17. ICC Observers, ‘Antonio Cassese to Head Special Tribunal for Lebanon’, AFP, 25 March 2009, http://iccobservers.org/2009/03/25/antonio- casseseto-head-special-tribunal-for-lebanon, retrieved 24 April 2010. 18. Special Tribunal for Lebanon. www.stl-tsl.org/sid/30, retrieved 8 September 2010. 19. ‘Antonio Cassese Elected President of the Special Tribunal for Lebanon’, 30 March 2009. http://internationallawobserver.eu/2009/03/30/antoniocassese-appointment ... , retrieved 24 April 2010. 20. ‘Rafik Hariri Tribunal Appoints New Chief of Investigation’, 13 March 2010. http://english.people.com.cn/90001/90777/90854/6918097.html, retrieved 24 April 2010. 21. The four Lebanese generals were senior security officials with alleged close ties with Syria: Raymond Azar, former chief of military intelligence, Ali Hajj, former chief of the Lebanese police, Jamil al-Sayyed, former director of internal security and Mustafa Hamdan, former commander of the presidential guard. See International Herald Tribune, 2 March 2009 and Le Monde, 2 May 2009. 22. International Center for Transitional Justice (2009c), ‘Vincent Reassures Lebanese on Tribunal’, The Daily Star, 1 May 2009, http://www.ictj.org/en/ news/coverage/article/2573.html?printe, retrieved 24 July 2009. 23. International Center for Transitional Justice (2009b), ‘Lebanon Tribunal Fuels Doubts by Freeing General’, Lyon, A., 1 May 2009, http://www.ictj. org/en/news/coverage/article/2577.html?printe, retrieved 23 July 2009. 24. Lebanon’s national unity government was formed in November 2009. Hezbollah has two ministers among its fifteen members: ‘Lebanon’s National-Unity Cabinet Formed’, NOW Lebanon, 9 November 2009, http:// nowlebanon.com/NewsArchiveDetails.aspx?ID=125341, retrieved 10 September 2010. Herman von Hebel (Netherlands) is acting Registrar since March 2010. The UN Secretary- General appointed François Roux (France) as the head of the Defence Office. 25. Le Monde, 15 July 2010; ‘Hezbollah: Members to Be Indicted in Hariri Death’, Yahoo! News, 22 July 2010. http://news.yahoo.com/s/ap/20100722/ ap_on_re_mi_ea/ml_lebanon, retrieved 10 September 2010; Libération, 31 July/1 August 2010’; ‘Lebanon Tribunal Receives Evidence from Hezbollah on Ex-PM Murder’, Jurist, 17 August 2010, http://jurist.org/

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Notes 307

26.

27. 28.

29. 30.

31.

32.

33. 34.

35. 36.

37.

paperchase/2010/08//lebanon-tribunal-receives evidence, retrieved 3 September 2010; ‘Hezbollah No Longer Recognizes International Tribunal and Calls for Its Abolition’, Asharq alawsat, 19 August 2010, http://aawsat. com/english/news/.asp?section=1&id=22023, retrieved 3 September 2010. The Turkish Capitulations granted by successive Sultans to Christian nations, particularly France, conferred rights and privileges in favour of their nationals resident or trading in the Ottoman dominions. Libération (2009), ‘Tribunal spécial pour Hariri’, 2 March 2009. J. Hammer (2008), ‘Getting Away With Murder?’, The Atlantic, December 2008: 2, http://www.theatlantic.com/doc/200812/hariri-assassination/2, retrieved 27 July 2009. Time (2008), ‘Syria, US at Odds Over Hariri Probe’, 16 April 2008. ‘Clinton Says US Sees Benefit in Having Strong Diplomatic Ties to Syria, Despite Conflicts’, Politics News, 22 April 2010. http://blog.taragana. com/politics/2010/04/22/clinton- says- us- sees- benefits-in-having- strongdiplomatic-ties-to-syria- despite- conflicts, retrieved 25 April 2010. M. Young (2009), ‘The Hariri Tribunal: A Case That Time Forgot’, Lebanon News, 17 July 2009. www.nowlebanon.com/Print.aspx?ID=103127, retrieved 17 July 2009. International Center for Transitional Justice (2008), ‘Lebanon – ICTJ Activity’ http://ictj.org(en/where/region5/588.html?printer_friendly=1, retrieved 24 July 2009. Amnesty International (2009a), ‘Amnesty International Says Hariri Tribunal “Insufficient” ’, DPA, 27 February 2009. ‘The Special Tribunal for Lebanon Dismisses Recent Allegations against its Spokesperson and Other Tribunal’s Officials’. www.stl-tsl.org/sid/184, also, ‘Hariri Tribunal “Not Making Any Progress” ’, RNW, www.rnw.nl/ international- justice/print/77181, retrieved 24 April 2010. See Note 15. Security Council Doc. SC/9543, ‘Security Council Grants Two-Month Extension to International Commission Investigating Former Prime Minister’s Assassination’, 17 December 2008. See James Cockayne (2007), ‘The Special Tribunal for Lebanon – A Cripple from Birth?’ Foreword, in Journal of International Criminal Justice 5, No. 5, November: 1061–4, and other articles on the Lebanon Tribunal in the same issue.

8 The International Criminal Court (1): Statute, Mandate and Structure 1. ‘Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998’, A/CONF.183/9. 2. C.K. Hall (1998), ‘The First Proposal for a Permanent International Court’, International Review of the Red Cross, No. 322, 57–74. 3. Draft Proposal for the Establishment of an International Court of Criminal Jurisdiction, UN Doc. A/AC.10/21 (1947). Donnedieu de Vabres was the French Judge to the Nuremberg Trial.

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308 Notes 4. See Roy S. Lee (ed.) (1999), UNITAR, in cooperation with The Project on International Courts and Tribunals, The International Criminal Court, The Making of the Rome Statute, Issues, Negotiations, Results, In cooperation with The Project on International Courts and Tribunals (The Hague/London/ Boston: Kluwer Law International): 2–6. 5. This is only a short summary of the main elements of the Statute of the Court. The text of the Statute is in Lee: 479–572. 6. H.P. Kaul (2007), ‘The International Criminal Court: Current Challenges and Perspectives’, ‘Symposium – Judgment at Nuremberg’, in Washington University Global Studies Law Review 6, No. 3 (2007), 575–582. 7. L. Moreno- Ocampo (2007), ‘Building a Future on Peace and Justice: Address by Mr. Luis Moreno- Ocampo’, Nuremberg, 24–25 June 2007, http://www. icc- cpi.int/otp/otp_events/LMO_20070624.html, retrieved 2 February 2008. 8. Doc. ICC-ASP/5/Res. 3, ‘Strengthening the International Criminal Court and the Assembly of States Parties’, 1 December 2006. 9. Y. Beigbeder (2005), International Justice against Impunity: Progress and New Challenges (Boston/Leiden: Martinus Nijhoff Publishers): 191–202. 10. The Report is entitled ‘U.S. Policy Toward the International Criminal Court: Further Positive Engagement’. The group was co- chaired by former Deputy Secretary of Defence, William Taft, and a federal appeals court judge who served on the ICTY, Patricia Wald, http://www.asil.org/files/ ASIL-08-DiscPaper2.pdf, retrieved 19 February 2011. 11. Amnesty International (2007) ‘Fact sheet: China and the International Criminal Court’, 19 July 2007, http://asiapacific.amnesty.org/library/Index/ ENGASA170232007?open&of=ENG- CHN, retrieved 17 May 2009. 12. ‘VI. China and the International Criminal Court’, Ministry of Foreign Affairs of the People’s Republic of China, 28 October 2003, http://www. mfa.gov.cn/eng/wjb/zzjg/tyfls/tyfl/2626/2627/t15473/htm retrieved 19 February 2011. 13. Bakhtiyar Tuzmukhamedov (2005), ‘The ICC and Russian Constitutional Problems’, Journal of International Criminal Justice 3, no. 3: 621–626, http:// jicj.oxfordjournals.org/cgi/content/abstract/3/3/621, retrieved 17 May 2009. 14. U. Ramanathan, ‘Report of a Workshop on International Criminal Court and India’, 3 July 2004, http://www.iccnow.org/documents/ MumbaiWorkshopReportJul04.pdf, retrieved 12 September 2010. 15. European Union, ‘The International Criminal Court & the fight against impunity’, The EU’s Human Rights & Democratisation Policy, Overview, November 2006, http://ec.europa.eu/external_relations/human_rights/icc/ index.htm, retrieved 18 May 2009. 16. Sudan Tribune (2008), ‘Turkey Inched Closer to Ratifying ICC Statute during al-Bashir’s Visit’, 22 August 2008, http://www.sudantribune.com/spip. php?article28366, retrieved 19 May 2009. 17. The Czech Republic ratified the Rome Statute on 21 July 2009. 18. Sudan signed the Rome Statute, but repudiated its signature in August 2008. 19. Lee: 81–2.

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Notes 309 20. The crime of aggression is not included in the Statutes of the ad hoc international criminal tribunals created after the Nuremberg and Tokyo Tribunals. 21. Resolution ICC-ASP/1/Res.1, 9 September 2002. 22. Justice Without Frontiers (2008), B. Chelebian, in The Monitor, Journal of the Coalition of the International Criminal Court, No. 36, May–October 2008: 18. 23. ICC Resolution RC/Res.6, ‘The Crime of Aggression’, adopted at the 13th plenary meeting, on 11 June 2010, by consensus. 24. Art. 121.3 of Rome Statute. 25. ‘Review Conference of the Rome Statute concludes in Kampala’, press release ICC-ASP-20100612-PR546, 12 June 2010, http://www.icc- cpi.int/menus/asp/ reviewconference/pressreleaserc/r, retrieved 11 September 2010. 26. ‘ICC Reaches Partial Agreement on Crime of Aggression’, RFI, 12 June 2010, www.english.rfi.fr/africa/20100612-icc-reaches-partial-agreement, retrieved 13 September 2010. 27. See ‘Conclusion of Landmark ICC Review Conference: Difficult Compromise and Commitments to Be Confirmed’, FIDH, 14 June 2010, http:// www.fidh. org/Conclusion- of-landmark-ICC-Review- Conference, and ‘ICC Conference Adopts Definition of Crime of Aggression’, International Law Prof Blog, 14 June 2010. http://lawprofessors.typepad.com/international_law/2010/06/ icc-ado, both retrieved 13 September 2010. 28. Article 17 defines issues of admissibility relating in part to a State’s unwillingness or inability to prosecute and to the gravity of a case. 29. On Transitional Justice, see Note 18 in the Introduction. 30. Doc. ICC- OTP, 2007. 31. Regulations of the Office of the Prosecutor, Doc. ICC-BD/05- 01- 09, entry into force: 23 April 2009. 32. Lee: 384. 33. I am indebted for this section to Gwendolyn Bunse, of The American NonGovernmental Organizations Coalition for the International Criminal Court, a program of the United Nations Association of the United States of America, for her contribution on ‘Current Developments about Victims’ Participation at the International Criminal Court’, updated on 14 February 2008. 34. Bunse: 5–7. 35. These criteria are in Article 53(1)(a) and (b) or Article 53(2)(a) and (b).

9 The International Criminal Court (2): Referrals and Investigations 1. International Criminal Court, ‘Report of the International Criminal Court to the United Nations for 2008/2009’, Doc. A/64/356, 17 September 2009. 2. BBC News, ‘Country profile: Uganda’, 9 April 2009. www.bbc.co.uk/1/hi/ world/africa/country_profiles/1069166.stm, retrieved 4 June 2009. 3. Amnesty International, ‘Uganda: Agreement and Annex on Accountability and Reconciliation Falls Short of a Comprehensive Plan to End Impunity’, 1 March 2008, www.amnesty.org/en/library/info/AFR59/001/2008/en, retrieved 6 June 2009.

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310

Notes

4. See Security Council Report, ‘Northern Uganda/LRA Historical Chronology’, revised on 8 June 2009, www.securitycouncilreport.org/site/c. glKWLeMTIsG/b.2880391/, retrieved 10 June 2009. 5. Details on these cases may be found in profiles prepared by Trial Watch, Switzerland. Texts of the arrest warrants are in ICC- 02/04- 01/05-29-USExp. (Kony), ICC- 02/04- 01/05-13-US-Exp. (Otti), ICC- 02/04- 01/05-15-USExp. (Odhiambio), ICC- 02/04- 01/05-16-US-Exp. (Ongwen). 6. Article 19(1): ‘The Court shall satisfy itself that it has jurisdiction in any case brought before it. The Court may, on its own motion, determine the admissibility of a case in accordance with article 17’. Article 17 refers, in part, to a State unwillingness or genuine inability to carry out the investigation or prosecution. 7. Doc. ICC- 02/04- 01/05, ‘Situation in Uganda in the Case of The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen – Decision on the admissibility of the case under article 19(1) of the Statute’, 10 March 2009. 8. Uganda’s response was filed as Annex 2 to the ‘Third Report of the Registrar on the execution of the “Decision on responses to observations submitted under Rule 103” ’, Doc. ICC- 02/04- 01/05-369. 9. See ‘Ugandan First Response’ of 28 March 2008 and ‘Ugandan Second Response’ of 10 July 2008, Docs. ICC- 02/04- 01/05-286-Anx2, and ICC02/04- 01/05-305-Anx2. 10. International Crisis Group, ‘Conflict in Congo’, updated 16 June 2009, http://www.crisisgroup.org/home/index.cfm?id=2829&1=2, retrieved 19 June 2009. 11. In September 2002, the UPC was renamed the Union des patriotes congolais/ Réconciliation et Paix, and Lubanga became its President. 12. The UN finally agreed to submit all the relevant evidence, as a result of the intervention of the Head of Peacekeeping Operations in New York: Le Monde, 27 January 2009. 13. International Criminal Court, ‘Case Information Sheet, Situation in the Democratic Republic of the Congo, The Prosecutor v. Thomas Lubanga Dyilio, Case No. ICC- 01/04- 01/06’, updated 23 January 2009. 14. ‘Fake Child Soldiers at Lubanga Trial’, by Thyjs Bouwknegt, Radio Netherlands Wereldomroep, 7 April 2010, http://www.rnw.nl/international-justice/ print/76217, retrieved 30 April 2010. 15. The International Federation for Human Rights, Association Africaine des droits de l’homme, Ligue des électeurs et Groupe Lotus. See: FIDH press release ‘Fourth ICC Arrest Warrant in the DRC Situation’, 30 April 2008, www.fidh.or/spip.php?article5508, retrieved 25 June 2008. 16. According to a report from the UN High Commissioner for Human Rights, released in October 2010, more than 600 incidents in the DRC took place between 1993 and 2003 in which tens of thousands of people were killed. Most of these attacks were directed against non- combatant civilian populations consisting primarily of women and children: ‘UN Human Rights Chief Announces Release Date for DR Congo “Mapping Report” ’, 2 September 2 010, ht t p://w w w.ohc h r.org / E N/ NewsEve nt s/ Pages/ D isplayNews. aspx?NewsID=10302&LangID=E, retrieved 14 September 2010. 17. ICC, ‘Background, Situation in the Central African Republic’, Doc. ICC- otpBN-20070522-220-A_EN, 22 May 2007.

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Notes 311 18. International Center for Transitional Justice, ‘Confronting Past Crimes at the National Level’, Focus: Regional Dynamics in Central Africa, 2009, http://www.ictj.org/static/Factsheets/ICTJ_CAR_fs2009.pdf, retrieved 23 June 2009. 19. International Crisis Group (2008), ‘Conflict history: Sudan’, updated September 20 08, http://w w w.crisisgroup.org/home/index.cfm?action=conf lict_ search&1=1&t=1&c_com, retrieved 27 June 2009. 20. ‘Report of the International Commission of Inquiry on Darfur to the United Nations Secretary- General, pursuant to Security Council Resolution 1564 of 18 September 2004’, 25 January 2005, Executive Summary, Doc. S/2005/60, http://www.un.org/News/dh/sudan/com_inq_darfur.pdf, retrieved 27 June 2009. 21. UN Press Release SC/8351, ‘Security Council Refers Situation in Darfur, Sudan, to Prosecutor of International Criminal Court’, 31 March 2005, http://www.un.org/News/Press/docs/2005/sc8351.doc.htm, retrieved 30 March 2007. 22. H. Köchler (2005), ‘Double Standards in International Criminal Justice: The Case of Sudan’, Statement by Dr. Hans Köchler, President of the International Progress Organization, 2 April 2005, http://www.i-p- o.org/Koechler- SudanICC.pdf, retrieved 30 May 2005. 23. The International Federation for Human Rights, ‘Sudan: A New Step towards Impunity’, 10 September 2007, http://www.fidh.org/article.php3?id_ article=4679, retrieved 20 September 2007. 24. See ICC Case Information Sheet, ‘Situation in the Darfur, Sudan, The Prosecutor v. Ahmad Muhammad Harun (“Ahmad Harun”) and Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”)’ updated 11 June 2009; and Trial Watch, ‘Ahmad Modammed Harun’, http://www.trial- ch.org/trialwatch/ profil_print.php?ProfileID=621&Lang=en, retrieved 29 June 2009. 25. International Herald Tribune, 15 July 2008, 5 March 2009. 26. International Herald Tribune, 28–29 March 2009. 27. African Union, ‘Communiqué, Peace and Security Council, 142nd Meeting, 21 July 2008, Addis Ababa’. 28. See ‘Organization of the Islamic Conference (OIC) Rejects ICC Double Standard’, SOL Sudan Online News & Information Centre, 17 March 2009, http://www.sol-sd.com/news/117/ARTICLE/3397/2009- 03-17.html, retrieved 2 July 2009. 29. African Union, ‘Communiqué on the 3 February 2010 Judgment of the International Criminal Court Appeals Chamber on Darfur’, 4 February 2010. 30. ‘Pre-Trial Chamber I Informs the Security Council and the Assembly of States Parties about Omar al-Bashir’s Visits to Kenya and Chad’, press release, ICC- CPI-20100827-PR568, 27 August 2010. 31. Sudan Tribune, 6 May 2009. 32. ‘Jordan Dissents from Arab Position on ICC Warrant for Sudan’s Bashir’, Sudan Tribune, 18 May 2009, http://www.sudantribune.com/spip.php?article30619, retrieved 18 May 2009; African Union (2010), ‘Communiqué on the 3 February 2010 Judgment of the International Criminal Court Appeals Chamber on Darfur’, 4 February 2010. 33. AP, 13 July 2009, in thestar.com.

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312 34. 35. 36. 37. 38.

39.

40.

41.

42.

43.

44. 45.

46.

47.

48. 49. 50. 51. 52.

Notes The Times, ‘SA Would Arrest Bashir: Department’, 30 July 2009. International Herald Tribune, 3 March 2009. International Herald Tribune, 30 June 2009. ICC, ‘Fifteenth Diplomatic Briefing of the International Criminal Court, Compilation of Statements’, 7 April 2009: 9. Article 16: ‘Deferral of investigation or prosecution. No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.’ ‘Russia Urges UN Security Council to Discuss Again Sudan’s Bashir’s Case’, Sudan Tribune, 1 July 2009, http://www.sudantribune.com/spip. php?article30750, retrieved 1 July 2009. ‘China wants Bashir case suspended’, Al Jazeera, News Asia-Pacific, 5 March 2009, http://english.aljazeera.net/news/asia-pacific/2009/03/2009353165379622. html, retrieved 1 July 2009. See International Herald Tribune, 26 March 2009 and ‘Letter by W.R. Pace, Convenor of the Coalition for the International Criminal Court, to Mr M. d’Escoto Brockman dated 12 March 2009’. See ICC ‘Case No. ICC- 02/05- 02/09, Case The Prosecutor v. Bahr Idriss Abu Garda’; - ICC Press Release ‘Bahr Idriss Abu Garda arrives at the premises of the Court’, ICC press release, ICC-CPI-20090517-PR413, 17 May 2009; Trial Watch, ‘Bahr Idriss Abu Garda’, http://www.trial-ch.org/trialwatch/profil_print. php?ProfileID=806&Lang=en, retrieved 3 July 2009 and on 30 April 2010. ‘Kenyans praise “landmark” ICC probe’, Radio Netherlands Worldwide, 1 April 2010,.http://wwwrnw.nl/international-justice/article/kenyans-praiselandmark, retrieved 30 April 2010. New York Times, 23 April 2009. Ben Hubbard, ‘UN’s Gaza War Crimes Investigation Faces Obstacles’, Ben Hubbard, Association Press, 9 June 2009. www.jordantimes.com/?news=15462, Retrieved 17 June 2009. Y. Ronen (2010), ‘ICC Jurisdiction over Acts Committed in the Gaza Strip, Article 12(3) of the ICC Statute and Non-state Entities’, Journal of International Criminal Justice, Vol. 8, No. 1: 3–27. International Criminal Court (2010), Letter of 12 January 2010 from ICC Director, Jurisdiction, Complementarity and Cooperation Division to Deputy High Commissioner for Human Rights, UN High Commissioner for Human Rights, Ref. OPT/INCOM/PSE/OHCHR-1/JCCD-ag. UN Doc. S/2009/244, 13 May 2009. Amnesty International, ‘Israel/Gaza, Operation “Cast Lead”: 22 Days of Death and Destruction’, 2 July 2009. As decided by the Council resolution S-9/1 of 12 January 2009. UN Doc. A/HRC/12/48, 25 September 2009. United Nations Office of the High Commissioner for Human Rights, ‘UN Fact Finding Mission Finds Strong Evidence of War Crimes and Crimes against Humanity Committed during the Gaza Conflict; Calls for End to Impunity’, 15 September 2009, http://www.ohchr.org/EN/NewsEvents/ Pages/DisplayNews.aspx?NewsID=91&LangID=E, retrieved 1 May 2010.

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Notes 313 53. ‘U.N. Rights Council Backs Gaza “war crimes” report’, CNN.com, 16 October 2009. 54. ‘European Parliament Backs Goldstone Report by Majority’, 11 March 2010, http://www.worldjewishcongress.org/en/main/showNews/id/9143, retrieved 2 May 2010. 55. ‘Israel Defends Actions in 2009 Gaza Conflict’, CNN, 30 January 2010, http://edition.cnn.com/2010/WORLD/meast/01/29/israel.gaza.report/, retrieved 2 May 2010. 56. ‘Israeli Study Exposes “Four Basic Flaws” in Goldstone Report’, World Jewish Congress, 15 March 2010.www.worldjewishcongress.org/en/main/ showNews/id/9148, retrieved 2 May 2010. 57. Alan Dershowitz, ‘The Case Against the Goldstone Report’, 1 February 2010, http://www.huffingtonpost.com/alan- dershowitz/the- case- against- thegoldstone-report, retrieved 2 May 2010. 58. International Herald Tribune, 27 February 2007. 59. ‘Building a Future on Peace and Justice: Address by Mr. Luis MorenoOcampo’, Nuremberg, 24–25 June 2007, http://www.icc- cpi.int/otp/otp_ events/LMO_20070624.html, retrieved 2 February 2008. 60. International Crisis Group, ‘International Crisis Group: “The Choices Facing Sudan after the Arrest Warrant for Bashir” ’, Nadim Hasbani in Al Hayat, 5 March 2009, http://www.crisisgroup.org/home/index.cfm?id=5973&1=1, retrieved 6 March 2009. 61. A. Neier (2008), ‘International Justice: Fifteen Years of Progress’, International Herald Tribune, 13 May 2008. 62. Quoted by A. Clapham in Journal of International Criminal Justice, Vol. 7, No. 1 (March 2009): 103. 63. K. Roth in the same Journal: 115. 64. A. Cassese (2009), ‘Selectivity, Fairness, and Proper Ways for an International Tribunal to Interact with the Media’, Journal of International Criminal Justice, Vol. 7, No. 1 (March): 112–5.

10

The Iraqi Special Tribunal

1. See T. Kjeilen, ‘Iraq History’, Looklex Encyclopedia. http://looklex.com/ e.o/iraq,history.htm, retrieved 17 September 2010; ‘Sadam Hussein alMajid al-Tikriti’, Trial Watch. http://trial- ch.org/trialwatch/profil_print. php?ProfileID=125& ... , retrieved 3 August 2009. 2. Trial Watch: http://www.trial-ch.org/en/resources/trial-watch/trial-watch/ profile.html?tx_jbtrial_pi2[tab]=facts&tx_jbtrial_pi2[profile]=saddam_husseinal-majid-al-tikriti_125&cHash=3a0cf1a6de Retrieved 19 February 2011. 3. Human Rights Watch (2002), ‘Justice for Iraq, A Human Rights Watch Policy Paper’. http://staging.hrw.org/backgrounder/mena/iraq1217bg.htm, retrieved 15 December 2002. 4. S. De Bertodano (2006), ‘Problems Arising from the Mixed Composition and Structure of the Cambodian Extraordinary Chamber’, Journal of International Criminal Justice, Vol. 4: 297. 5. Human Rights Watch. ‘Human Rights Watch (2002): 6 Human Rights Watch (2002). ‘Justice for Iraq, A Human Rights Watch Policy Paper’, http://staging.

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314

6. 7. 8.

9.

10.

11.

12. 13. 14. 15.

16.

17.

18. 19.

Notes hrw.org/backgrounder/mena/iraq1217bg.htm, retrieved 15 December 2002. However, de Bertodano states that non-political crimes were tried under a properly functioning legal system staffed by lawyers and judges without strong links to the Ba’ath party and that there was a cadre of experienced independent jurists. Although they had no experience of dealing with international crimes, they had considerable experience of dealing with complex cases under a properly functioning legal system. ‘Coalition Provisional Authority Order Number 42: Delegation of Authority Regarding an Iraqi Tribunal’, CPA/ORD/9 Dec 2003/48 (2003)(IST Statute). Human Rights Watch, ‘Iraq, Judging Dujail, The First Trial before the Iraqi High Tribunal’, November 2006. For instance, the guarantee of equality in access to witnesses has disappeared from the 2003 text (Art. 20.d.5 vs. Art. 19.4.E of the 2005 Statute). The requirement that the Tribunal render a ‘reasonable opinion’ in Art. 23.b of the 2003 Statute has disappeared from the 2005 Statute; see G. Mettraux (2007), ‘The 2005 Revision of the Statute of the Iraqi Special Tribunal’, Journal of International Criminal Justice 5: 288–9. ‘Law No (10) 2005, Law of the Iraqi Higher Criminal Court’, Official Gazette of the Republic of Iraq. http://law.case.edu/saddamtrial/documents/IST_ statute_official_english.pdf, retrieved 18 September 2010. Other applicable laws are: the Baghdadi Penal Law of 1919, for the period starting from 17 July 1968 until 14 December 1969; the Penal Law No. 111 of 1969, in force in 1985 (third version) for the period from 15 December 1969 until 1 May 2003; the Military Penal Law No. 13 of 1940 and the Military Procedure Law No. 44 of 1941 (Art. 17.1). In the 2003 Statute, the decision to disqualify a judge was taken by a majority of permanent members, and the decision to disqualify the President was to be taken by Governing Council (Art. 5.f. 2–3). In the 2003 Statute, the Chief Investigative Judge was ‘required’ to appoint non-Iraqi nationals as advisers or observers (Art. 7.n). Human Rights Watch (2006b): 2. Details on the defendants are in Trial Watch: http://www.trial- ch.org/trialwatch/profil_print.php?ProfileID Al-Amiri stated, in an exchange with Saddam Hussein: ‘I will answer you: you are not a dictator. Not a dictator. You were not a dictator. The people or those who are around the official make him a dictator, and it is not just you. This is the case all over the world.’ (Human Rights Watch, 2006 b): 40. William Schabas (2007), ‘Analysis of the Verdict – Imposing the Death Penalty on Saddam Hussein Violates International Human Rights Law’, in Michael P. Scharf, Gregory S. McNeal and Brianne M. Draffin (eds) A Teacher’s Guide and Supplement to Saddam on Trial: Understanding and Debating the Iraqi High Tribunal (Durham, NC: Carolina Academic Press): 25. Human Rights Watch, ‘The Anfal Trial: Questions and Answers’, 22 June 2007, http:www.hrw.org/legacy/english/docs/2006/08/14/iraq13982.htm, retrieved 21 August 2009. Details on sentences are in International Center for Transitional Justice (2007). International Justice Tribune, ‘Without Saddam, Anfal Trial Elicits Little Reaction’, 9–22 July 2007.

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Notes 315 20. J. Trahan (2009), ‘A Critical Guide to the Iraqi High Tribunal’s Anfal Judgment: Genocide against the Kurds’, Michigan Journal of International Law, Vol. 30 (Winter): 305–408. 21. Chatham House (2008), ‘The Iraqi Tribunal: The Post- Saddam Cases, A Summary of the Chatham House International Law Discussion Group meeting held on 4 December 2008’: 6. www.chathamhouse.org.uk/files/13117_ il041208.pdf, retrieved 24 August 2009. 22. The other 12 defendants are: Abd Hamid Mahmoud Al-Nassiri, Ibrahim Abdul Sattar Muhammad Al Dahan, Waleed Hamid Tawfeeq Al-Nassiri, Iyad Ftiyah Khalifah Al-Rawi, Sabaawi Ibrahim Al-Hasan, Abdel- Ghafour Fleih Al-Ani, Ayad Taha Shihab Al-Duri, Latif Maal Hamood Al- Sabaawi, Qais Abdul Razaq Muhammad al-Adhami, Sabir Abdul Aziz Hussain Al-Duri, Saadi Tu’ma Abbas Al-Jaburi and Sufyan Maher Hasan Al- Ghreri. 23. Other defendants were: Mizdan Khudier Hadi, a former Revolutionary Command Council member, Abid Hamid Mahmoud, former secretary to Saddam, Ahmed Hussein Khudier, former finance minister, and Essam Rasheed Khuwaish, former Central Bank Governor. 24. United States Department of State (2009), ‘2008 Human Rights Report: Iraq Bureau of Democracy, Human Rights, and Labor’, 25 February 2009. www. state.gov/g/drl/rls/hrrpt/2008/nea/119116.htm, retrieved 24 August 2009. 25. Human Rights Watch (2006): 40. 26. Human Rights Watch (2007a), ‘Iraq: Halt New Dujail Trial Executions, More Hangings Would Further Jeopardize Respect for Rule of Law’, 8 January 2007. www.commondreams.org/cgi-bin/newsprint.cgi?file=/news2007, retrieved 3 August 2009. 27. RadioFreeEurope, RadioLiberty, 17 March 2009: ‘Iraq Urges Execution of Hussein-Era Officials’ 28. Global Policy Forum (2006), ‘Expert on Judiciary Expresses Concern’, 6 N o v e m b e r 2 0 0 6 , h t t p : // w w w. g l o b a l p o l i c y. o r g / c o m p o n e n t / article/163/29003.html, retrieved 18 August 2009. 29. Cleveland Experts Meeting (2006), ‘Ten Lessons from the Saddam Trial, Generated from the October 7, 2006 Cleveland Experts Meeting’, haired by Michael Scharf, 19 February 2007. Grotian Moment: The International War Crimes Trial Blog, http://law.case.edu/saddamtrial/index.asp?t=1, retrieved 18 August 2009.

11 The Delayed Trial of Hissène Habré 1. ‘Former Leader of Chad: Human Rights Abuser or Cold War Pawn?’, International Herald Tribune, 2 March 2000. 2. See ‘The Case Against Hissène Habré, an African Pinochet’, Human Rights Watch, http://www.hrw.org/justice/habre/intro_web2.htm, retrieved 17 June 2008; see also ‘Hissène Habré’, Trial Watch, 13 July 2007, http://www. trial- ch.org/trialwatch/profil_print.php?ProfileID=87&Lang=en Retrieved 7 April 2009. 3. ‘Hissène Habré’, Trial Watch, 13 July 2007, http://www.trial- ch.org/ trialwatch/profil_print.php?ProfileID=87&Lang=en, retrieved 7 April 2009.

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Notes

4. The Chadian Association asked for the assistance of New York-based Human Rights Watch in bringing the case to justice in Senegal. A coalition of Chadian, Senegalese and international NGOs, and a group of Senegalese lawyers organized to support the complaints. They include the Dakar-based African Assembly for the Defense of Human Rights (RADDHO), the Parisbased International Federation of Human Rights Leagues (FIDH), the Chadian Association for the Promotion and Defense of Human Rights (ATPDH), the National Organization for Human Rights (Senegal), the London-based Interights, and the French organization Agir Ensemble pour les Droits de l’Homme. 5. Cour de Cassation, Crim, Arrêt No. 14, 20 March 2001, ‘Souleymane Guengueng et autres Contre Hissène Habré’. http://www.hrw.org/french/ themes/Habré- cour_de_cass.html. 6. Libération (2007), ‘Le Sénégal bloque le procès de Hissène Habré’, 6 July 2007. 7. ‘United Nations Office of the High Commissioner for Human Rights, Letter of H. Gaham of 27 April 2001 to R. Brody’, Human Rights Watch. 8. See ‘U.S. Reaction to Belgian Universal Jurisdiction Law’ in The American Journal of International Law, 2003, Vol. 97: 984–7. 9. Human Rights Watch, ‘Declaration on the Hissène Habré Case and the African Union, 24 January 2006’. 10. Under Article 30, 1, ‘Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court’. 11. United Nations Committee Against Torture (2006), ‘Communication No. 181/2001: Senegal 19/05/2006 – CAT/C/36/D/181/2001’, http://www.unhchr. ch/tbs/doc.nsf/(Synbol)/aafdd8e81a424894c125718coo4490f6?Opendocum ent, retrieved 18 April 2009. 12. ‘Report of the Committee of Eminent African Jurists on the Case of Hissène Habré’, paras. 17, 18 and 28, http://www.hrw.org/justice/habre/CEJA_ Reporo506.pdf – May 2006. retrieved 17 June 2008. 13. International Federation for Human Rights, ‘Le Sénégal modifie sa Constitution permettant le jugement de Hissène Habré’, FIDH Communiqué, 10 April 2008. 14. International Federation for Human Rights, ‘Condamnation à mort de Hissène Habré par la justice tchadienne: aucune incidence sur son jugement au Sénégal’, 18 August 2008, http://www.fidh.org/Condamnation-a-mortde-Hissene, retrieved 6 May 2009. 15. International Court of Justice (2009), ‘Belgium institutes proceedings against Senegal and requests the Court to indicate provisional measures’, press release No. 2009/13, 19 February 2009. 16. Human Rights Watch (2009), ‘The Case against Hissène Habré, an “African Pinochet”, Case Summary’, 11 February 2009, http://www.hrw.org/en/ news/2009/02/11/case- against- hissene- habre- african- pinochet#anchor,

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Notes 317 retrieved 11 May 2010. See also International Court of Justice press release No. 2009/22, ‘Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Request for the Indication of Provisional Measures: The Court finds that the circumstances, as they now present themselves to it, are not such as to require the exercise of its power to indicate provisional measures’, 28 May 2009. 17. International Herald Tribune (2000), ‘Former Leader of Chad: Human Rights Abuser or Cold War Pawn?’ 2 March 2000.

Conclusion 1. J. Rabkin (2007), ‘No substitute for sovereignty: Why international criminal justice has a bleak future – and deserves it’, in Atrocities and International Accountability: Beyond Transitional Justice (Tokyo/New York/Paris: United Nations University Press): 98–132. 2. K.C. Moghalu (2008), Global Justice: The Politics of War Crimes Trials (Stanford, CA: Stanford University Press): 170–8. 3. Rachel Kerr (2004), The International Criminal Tribunal for the Former Yugoslavia: An Exercise in Law, Politics and Diplomacy (Oxford: Oxford University Press): 208.s Quoted by Moghalu (2008): 176. 4. Moghalu, 2008: 103. 5. P. Akhavan (2009), ‘Are International Criminal Tribunals a Disincentive to Peace? Reconciling Judicial Romanticism with Political Realism’, Project Muse, Human Rights Quarterly, Vol. 31: 631. 6. International Herald Tribune, 7 July 2009. 7. The UN secretariat drafted the Statute of the ICTY, which was then ‘copied’ for the ICTR. It also drafted the Statute of the Special Court for Sierra Leone in negotiation with the government of Sierra Leone. 8. See ‘Introduction’, n. 7. Among the more active human rights and humanitarian NGOs: Amnesty International, Human Rights Watch, Coalition for the International Criminal Court, International Center for Transitional Justice, International Federation for Human Rights, Médecins sans frontières, No Peace Without Justice, Physicians for Human Rights, Transparency International, World Organization Against Torture. 9. Akhavan: 625, 652. 10. Colloquium (2004), ‘Colloquium of Prosecutors of International Criminal Tribunals on “The Challenges of International Criminal Justice” ’, Report of Proceedings, 25–27 November 2004: 31. 11. ‘Review Conference of the Rome Statute concludes in Kampala’, ICC press release, ICC-ASP-20100612-PR546, 12 June 2010. 12. J.N. Clark (2009), ‘The Limits of Retributive Justice: Findings of an Empirical Study in Bosnia and Hercegovina’, Journal of International Criminal Justice, Vol. 7, No. 3 (July): 486.

10.1057/9780230305052 - International Criminal Tribunals, Yves Beigbeder 9780230_294295_15_not.indd 317

3/18/2011 12:59:18 PM

Bibliography African Union (2006), ‘Decision of the African Union on the Trial of Hissène Habré’, Doc. Assembly/Au/3(vii), 2 July 2006. African Union (2008),’Communiqué, Peace and Security Council, 142nd Meeting, Addis Ababa’, 21 July 2008. African Union (2010), ‘Communiqué on the 3 February 2010 Judgment of the International Criminal Court Appeals Chamber on Darfur’, 4 February 2010 P. Akhavan (2009), ‘Are International Criminal Tribunals a Disincentive to Peace? Reconciling Judicial Romanticism with Political Realism’, Project Muse, Human Rights Quarterly, Vol. 31, 624–654. American Law Institute Annual Meeting, ‘Remarks of the Chief Justice’, 17 May 2004, retrieved 23 August 2008. http://www.supremecourtus.gov/publicinfo/ speeches/sp_05-17- 04a.html Amnesty International (2000), ‘Collateral Damage or Unlawful Killings? Violations of the Laws of War by NATO during Operation Allied Force’, as reported by Democracy Now!, 8 June 2000. http://www.democracynow. org/2000/6/8natos_war_crimes_in_yugoslavia, retrieved 5 November 2008. Amnesty International (2007), ‘Fact sheet: China and the International Criminal Court’, 19 July 2007. http://asiapacific.amnesty.org/library/Index/ ENGASA170232007?open&of=ENG- CHN, retrieved 17 May 2009. Amnesty International (2008a), ‘Uganda: Agreement and annex on accountability and reconciliation falls short of a comprehensive plan to end impunity’, 1 March 2008. www.amnesty.org/en/library/info/AFR59/001/2008/en, retrieved 6 June 2009. Amnesty International (2008b), ‘Croatia: A window of opportunity to end war crimes inpunity’, Press Release, 11 April 2008. Amnesty International (2009a), ‘Amnesty International says Hariri tribunal ‘insufficient’, DPA, 27 February 2009. http://www.monsterandcritics.com/ news/middleeast/news/pri, retrieved 23 July 2009. Amnesty International (2009b), ‘Israel/Gaza, Operation “Cast Lead”: 22 days of death and destruction’, 2 July 2009. BBC News (1999), ‘World: Europe, No extradition for Croatian generals’, Gabriel Partos. http://news.bbc.co.uk/2/hieurope/478647.stm, retrieved 14 October 2008. BBC News (2006), ‘Obituary: Ta Mok’, 21 July 2006. http://news.bbc.co.uk/2/hi/ asia-pacific/5128664.stm, retrieved 20 March 2009. BBC News (2009), ‘Country profile: Uganda’, 9 April 2009. http://www.bbc. co.uk/1/hi/world/africa/country_profiles/1069166.stm, retrieved 4 June 2009. Y. Beigbeder (2005), International Justice against Impunity, Progress and New Challenges (Boston/Leiden: Martinus Nijhoff Publishers). Y. Beigbeder (2006), Judging War Crimes and Torture, French Justice and International Criminal Tribunals and Commissions (1940–2005). (Leiden/Boston: Martinus Nijhoff Publishers). 318

10.1057/9780230305052 - International Criminal Tribunals, Yves Beigbeder 9780230_294295_16_bib.indd 318

3/18/2011 1:00:18 PM

Bibliography

319

T. Bell (2007), ‘Khmer Rouge couple charged with war crimes’, Telegraph.co.uk, 13 November 2007. http:/www.telegraph.co.uk/news/worldnews/1569127/ Khmer-Rouge- couple- charged-with-war- crimes, retrieved 19 March 2009. S. Berger (2006), ‘Khmer Rouge leader arrested in Cambodia’, Telegraph.co.uk, 5 July 2006. http:/www.telegraph.co.uk/news/worldnews/asia/cambodia/1523066/ Prayers-for-justice, retrieved 19 March 2009. H. Bernard (1948), ‘Dissenting Judgment of the Member from France of the International Military Tribunal for the Far East’, 12 November 1948, [MB 1549, Tokyo War Trials, Box 334, Opinion of the member from France, 1948, Macmillan Brown Library]. N. Boister and R. Cryer (2008), The Tokyo International Military Tribunal, A Reappraisal (Oxford/New York, Oxford University Press). A.C. Brackman (1987), The Other Nuremberg, The Untold Story of the Tokyo War Crimes Trials (New York, Quill-William Morrow). J. Brunner (2002), American Involvement in the Nuremberg War Crimes Trial Process, Michigan Journal of History, Winter (2002). G. Bunse (2008), ‘Current Developments about Victims’ Participation at the International Criminal Court’, The American Non- Governmental Organizations Coalition for the International Criminal Court’, a program of the United Nations Association of the United States of America, updated on 14 February 2008. C. Burchard (2006), ‘The Nuremberg Trial and its Impact on Germany’, Journal of International Criminal Justice, Vol. 4, No. 4, Oxford, Oxford University Press. Carlsson Report (1999), Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda. A. Cassese (2003), ‘A Big Step Forward for International Justice’, Crimes of War Project, The International Criminal Court: AN END TO IMPUNITY?1- 6, retrieved 29 July 2008 from http://www.crimesofwar.org/print/icc/icc-cassese-print.html A. Cassese (2009), ‘Selectivity, Fairness, and Proper Ways for an International Tribunal to Interact with the Media’, Journal of International Criminal Justice, Vol. 7, No. 1, March 2009. J.P. Cerone (2007), ‘Dynamic Equilibrium: The Evolution of US Attitudes towards International Criminal Courts and Tribunals’, The European Journal of International Law, Vol. 18, No. 2. Chatham House (2007), ‘The Special Court for Sierra Leone and How it Will End, A summary of the Chatham House International Law discussion group meeting of 9 July 2007’, http://www.chathamhouse.org.uk/files/9574_il090707. pdf, retrieved 19 December 2008. Chatham House (2008), ‘The Iraqi Tribunal: The Post- Saddam Cases, A Summary of the Chatham House International Law Discussion Group meeting held on 4 December 2008. www.chathamhouse.org.uk/files/13117_il041208.pdf, retrieved 24 August 2009. M. Chemillier- Gendreau (1996), ‘The International Court of Justice Between Politics and Law’, Le Monde diplomatique, retrieved 10 August 2008 from http:// www.globalpolicy.org/wldcourt/icj.htm China (2003), ‘VI. China and the International Criminal Court’, Ministry of Foreign Affairs of the People’s Republic of China, 28 October 2003. http:// www.fmprc.gov.ch/rng/wjb/zzjg/tyfls/tyfl/2626/2627/t15473.htm, retrieved 17 May 2009.

10.1057/9780230305052 - International Criminal Tribunals, Yves Beigbeder 9780230_294295_16_bib.indd 319

3/18/2011 1:00:18 PM

320 Bibliography J.N. Clark (2009), ‘The Limits of Retributive Justice, Findings of an Empirical Study in Bosnia and Hercegovina’, Journal of International Criminal Justice, Vol. 7, No. 3, July 2009, 463–487. Cleveland Experts Meeting (2006), ‘Ten Lessons from the Saddam Trial, Generated from the October 7, 2006 Cleveland Experts Meeting’, Chaired by Michael Scharf, 19 February 2007. Grotian Moment: The International War Crimes Trial Blog http://law.case.edu/saddamtrial/index.asp?t=1, retrieved 18 August 2009. Coalition for International Justice (2004), ‘Unfulfilled Promises, Achieving Justice for Crimes against Humanity in East Timor’, November 2004. www.globalpolicy.org/intljustice/tribunals/timor/2004/1104unfulfilled.pdf, retrieved 26 January 2009. Coalition for the International Criminal Court (2005), ‘Council Makes Historic Referral on Darfur to ICC’, Elise Keppler amd Yolanda J. Revilla, in The International Criminal Court MONITOR, the Newspaper of the NGO Coalition for the International Criminal Court, Issue 29 – April 2005. Coalition for the International Criminal Court (2008), ‘Comments and recommendations to the Seventh Session of the Assembly of States Parties, 14–22 November 2008, The Hague’, Independent Oversight Mechanism Team, 31 October 2008. Colloquium (2004), ‘Colloquium of Prosecutors of International Criminal Tribunals on “The Challenges of International Criminal Justice” ’, Report of Proceedings, 25–27 November 2004. Commission for Reception, Truth and Reconciliation, Timor Leste – CAVR Report (2005), http://www.cavr-timorleste.org/, retrieved 30 January 2001. Common Dreams (2008), ‘Sierra Leone: War Crimes Ruling Bolsters Victim Protection, Reason for Fighting Cannot Reduce Penalties’, Human Rights Watch, 28 May 2008. http://www.commondreams.org/news2008/0528- 09. htm, retrieved 22 December 2008. Council of Europe, Parliamentary Assembly (2008), ‘Honouring of obligations and commitments by Bosnia and Herzegovina’, Resolution 1626, 30 September 2008. D.M. Crane (2007), ‘Dancing with the devil: Prosecuting West Africa’s warlords – current lessons learned and challenges’, in E. Hughes, W.A. Schabas and R. Thakur (eds) Atrocities and International Accountability, Beyond Transitional Justice (United Nations University Press). T. Cruvellier (2007), ‘International Tribunal for Rwanda, The troubled mandate’ International Justice Tribune, Series – No. 2, Justice Memo. Paris. S. De Bertodano (2006), ‘Problems Arising from the Mixed Composition and Structure of the Cambodian Extraordinary Chamber’, Journal of International Criminal Justice, Vol. 4, 285–93. S. De Bertodano (2007), ‘Were There More Acceptable Alternatives to the Iraqi High Tribunal?’, Journal of International Criminal Justice, Vol. 5, 294–300. C. Del Ponte (2008), Madame Prosecutor, Confrontations with Humanity’s Worst Criminals and the Culture of Impunity, A Memoir, with Chuck Sudetic (New York, Other Press). R. Dicker and E. Keppler (2004), ‘Beyond The Hague: The Challenges of International Justice’, Human Rights Watch, retrieved 13 August 2008 http:// www.globalpolicy.org/intljustice/general/2004/0205beyond.htm

10.1057/9780230305052 - International Criminal Tribunals, Yves Beigbeder 9780230_294295_16_bib.indd 320

3/18/2011 1:00:18 PM

Bibliography

321

P.F. Diehl, C. Ku and D. Zamora (2003), ‘Dynamics of International Law: Interaction of Normative Operating Systems’, International Organization, 57–8. H. Donnedieu de Vabres (1947), Le procès de Nuremberg devant les principes modernes du droit pénal international (The Hague, Rec. Acad.). P. Erlinger (2008), ‘The “Rwanda Genocide” Cover-up’, Truthout, http://www. truthout.org/article/uns-louise-arbour-under-fire- over-rwanda, retrieved 1 December 2008. European Union (2006), ‘The International Criminal Court & the fight against impunity’, The EU’s Human rights & Democratisation Policy, Overview, November 2006. http://ec.europa.eu/external_relations/human_rights/icc/ index.htm, retrieved 18 May 2009. Extraordinary Chambers in the Courts of Cambodia (ECCC) (2008a), ‘Remarks by the Director of the Office of Administration at Press Conference on Results of the Special Review’, 25 April 2008. Extraordinary Chambers in the Courts of Cambodia (ECCC) (2008b), ‘Revised Budget Estimates from 2005 to 2009’, July 2008, www.unakrt- online.org/ Docs/Other/2005- 09%20ECCC%20Approved%20Budget.pdf, retrieved 22 March 2009. Extraordinary Chambers in the Courts of Cambodia (ECCC) (2008c), ‘Internal Rules (Rev.2), Procedure’, 5 September 2008, www.eccc.gov.kh/english/cabinet/ fileUpload/88/IR_Revision2_05- 01- 08_En.pdf, retrieved 22 March 2009. Extraordinary Chambers in the Courts of Cambodia (ECCC) (2009a), Press Release, ‘First ECCC Trial on Crimes of 1970s Khmer Rouge Regime Officially Opens’, 17 February 2009. khmernews.wordpress.com/2009/ ... /press-release-first-eccc-trialon-crimes-of-1970s-khmer-rouge-regime-officially, retrieved 22 March 2009. Extraordinary Chambers in the Courts of Cambodia (ECCC) (2009b), ‘Revised Budget Estimates from 2005 to 2009’, ECCC, July 2008, and ‘List of Pledging Donors for UN Share for Establishment of the Extraordinary Chambers’ and ‘ECCC Budget Cambodian side’, 12 March 2009. http://www.eccc.gov.kh/english/un_finances.aspx, retrieved 14 March 2009. Extraordinary Chambers in the Courts of Cambodia (ECCC) (2009c), ‘Statement regarding prosecutorial disagreement’, 2 September 2009, http://www.eccc. gov.kh/english/news.view.aspx?doc_id=308, retrieved 5 September 2009. Extraordinary Chambers in the Courts of Cambodia (ECCC) (2010), ‘Opening Speech, H.E. President Kong Srim, ECCC Plenary Session, 2 February 2010’. www.eccc.gov.kh, retrieved 22 April 2010. F. de Fontette (1996), Le procès de Nuremberg (Paris, Presses universitaires de France). N. Fritz (2008), ‘When International Justice is Feared as Colonisation by Law, The Application of Global Legal Accountability is No Open and Shut Case’, The Times – South Africa, 25 May 2008. D. Gierycz (2008), Transitional Justice – Does It Help Or Does It Harm? [737] NUPIWorkingPaper (Oslo, Norwegian Institute of International Affairs). M. Glasius (2009), ‘What is Global Justice and Who Decides? Civil Society and Victim Responses to the International Criminal Court’s First Investigations’, Human Rights Quarterly, Vol. 31, 496–520. Global Policy Forum (2006), ‘Expert on Judiciary Expresses Concern’, 6 November 2006. http://www.globalpolicy.org/component/article/163/29003. html, retrieved 18 August 2009.

10.1057/9780230305052 - International Criminal Tribunals, Yves Beigbeder 9780230_294295_16_bib.indd 321

3/18/2011 1:00:18 PM

322 Bibliography Global Policy Forum (2007), ‘UN Boycotts East Timor Truth Commission Over Amnesty Concerns’, Associated Pres, 27 July 2007, – ‘Indonesia Criticizes UN Chief Over Stance on E. Timor Commission’, Earthtimes. org. 31 July 2007. http://www.globalpolicy.org/intljustice/tribunals/ timor/2007/0727unboycott.htm, and http://www.globalpolicy.org/intljustice/ tribunals/timor/2007/0731indcrit..htm, retrieved 3 February 2009. Government of Canada (2008), ‘Special Court for Sierra Leone’, http://www. canadainternational.gc.ca/prmny-mponu/assets/pdfs/Special_Court_Sierra_ Leone- eng.pdf, retrieved 13 December 2008. J.A. Hall (2008), ‘Don’t pave Cambodia’s flawed path to justice’, The Christian Science Monitor, 15 January 2008, http://www.csmonitor.com/2008/0115/ p09s02- coop.html, retrieved 24 March 2009. J. Hammer (2008), ‘Getting Away With Murder?’, The Atlantic, December 2008, http://www.theatlantic.com/doc/200812/hariri-assassination/2, retrieved 27 July 2009. F. Hartmann (2007), Paix et châtiment, Les guerres secrètes de la politique et de la justice internationale (Paris, Flammarion). P. Hazan (2000), La justice face à la guerre, De Nuremberg à La Haye (Paris, Stock). P. Hazan (2007), Juger la guerre, juger l’Histoire, Du bon usage des Commissions Vérité et de la justice internationale (Paris: Presses Universitaires de France). E. Henry (2007), ‘Khmer Rouge leader arrested in Cambodia’, Telegraph, co.uk, 20 September 2007. http:/www.telegraph.co.uk/news/worldnews/1563595/ Khmer-Rouge-leader-arrested-in- Cambodia, retrieved 13 March 2009. Hirondelle (2008), ‘ICTR/Rwanda – Rejection of suspects’ transfers is lack of respect to national courts’, Hirondelle News Agency, Arusha, 2 July 2008. http://www.hirondellenews.com/content/view/2211/517/, retrieved 8 December 2008. S. Horwitz (1950), ‘The Tokyo Trial’, in International Conciliation, Carnegie Endowment for International Peace, No. 465, November 1950. Human Rights Watch (2000), ‘Letter of 19 May 2000’, www.hrw.org/ press/2000/05/sl-ltr0519.htm, retrieved 12 December 2000. Human Rights Watch (2001), ‘War Crimes in Kosovo’, http://www.hrw.org/ reports/2001/kosovo/undword.htm and http://www.hrw.org/reports/2001/ kosovo/undword2b.htm, retrieved 4 November 2008. Human Rights Watch (2002), ‘Justice for Iraq, A Human Rights Watch Policy Paper’. http://staging.hrw.org/backgrounder/mena/iraq1217bg.htm, retrieved 15 December 2002. Human Rights Watch (2003), ‘Security Council: Do Not Undermine ICTR’s Independence, Letter to Council Members on Eve of Meeting with Lead Prosecutor’, 7 August 2003 http://hrw.org/press/2003/08/rwanda080703ltr. htm, retrieved 16 August 2003. Human Rights Watch (2004), ‘Indonesia: Courts Sanction Impunity for East Timor Abuses, United Nations, others need to find mechanisms to bring perpetrators to justice’, 5 August 2004. http://www.hrw.org/en/news/2004/08/05/ indonesia- courts-sanction-impunity- east-timor.htm, retrieved 27 January 2009. Human Rights Watch (2005), ‘Human Rights Watch Policy Paper: The Meaning of “The Interests of Justice” in article 53 of the Rome Statute’, June 2005.

10.1057/9780230305052 - International Criminal Tribunals, Yves Beigbeder 9780230_294295_16_bib.indd 322

3/18/2011 1:00:19 PM

Bibliography

323

Human Rights Watch (2006a), ‘Declaration on the Hissène Habré Case and the African Union, 24 January 2006’. http://hrw.org/english/docs/2006/01/24/ chad12571.htm, retrieved 18 April 2009. Human Rights Watch (2006b), ‘Iraq, Judging Dujail, The First Trial before the Iraqi High Tribunal’, November 2006. Human Rights Watch (2007a), ‘Iraq: Halt New Dujail Trial Executions, More Hangings Would Further Jeopardize Respect for Rule of Law’, 8 January 2007. http://www.commondreams.org/cgi-bin/newsprint.cgi?file=/news2007, retrieved 3 August 2009. Human Rights Watch (2007b), ‘Serbia Must Boost Support for War Crimes Chamber’, 28 June 2007, http://hrw.org/english/docs/2007/06/28/serbia16252_txt,htm, retrieved 22 October 2008. Human Rights Watch (2008a), ‘Unfinished Business: Serbia’s War Crimes Chamber: Overview’, http://hrw.org/backgrounder/ECA/serbia0607/3.htm, retrieved 22 October 2008. Human Rights Watch (2008b), ‘Law and Reality: Progress in Judicial Reform in Rwanda’, ‘Rwanda: Progress in Judicial Reforms Falls Short’, 23 July 2008, http://www.hrw.org/en/news/2008/07/23/rwanda-progress-judicial-reformsfalls-short, retrieved 8 December 2008. Human Rights Watch (2008c), ‘Human Rights Watch Memorandum for the Seventh Session of the International Criminal Court Assembly of States Parties, II. Building an Effective and Credible Court’, 7 November 2008, http://www. hrw.or/en/node/76652/section/4, retrieved 26 May 2009. Human Rights Watch (2009), ‘The Case against Hissène Habré, an “African Pinochet”, Case Summary’, 11 February 2009, http://www.hrw.org/en/ news/2009/02/11/case- against- hissene- habre- african- pinochet#anchor9, retrieved 11 May 2010. International Center for Transitional Justice (2004), ‘The Sierra Leone Truth and Reconciliation Commission: Reviewing the First Year’, Priscilla Hayner, ICTJ, January 2004, http://www.ictj.org/images/content/1/0/100.pdf, retrieved 20 December 2008. International Center for Transitional Justice [and the Human Rights Center at the University of California, Berkeley] (2005), ‘Forgotten Voices, A PopulationBased Survey of Attitudes about Peace and Justice in Northern Uganda’, 25 July 1005, http://ictj.org/en/news/press/release/262.html, retrieved 10 June 2009. International Center for Transitional Justice (2006), ‘The Serious Crimes Process in Timor-Leste: In Retrospect’, by C. Reiger and M. Wierda, March 2006, http:// www.ictj.org/static/Prosecutions/Timor.study.pdf, retrieved 24 January 2009. International Center for Transitional Justice (2007), ‘Iraq Tribunal Issues Verdict in Anfal Case’, 24 June 2007, http://www.ictj.org/en/en/news/press/ release/1240.html (English), retrieved 24 August 2009. International Center for Transitional Justice (2008a), ‘Too Much Friendship, Too Little Truth, Monitoring Report on the Commission of Truth and Friendship in Indonesia and Timor-Leste’, by M. Hirst, January 2008, http://www.ictj.org/ images/content/9/7/972.pdf, retrieved 3 February 2009. International Center for Transitional Justice (2008b), ‘Lebanon – ICTJ Activity’, http://ictj.org(en/where/region5/588.html?printer_friendly=1, retrieved 24 July 2009.

10.1057/9780230305052 - International Criminal Tribunals, Yves Beigbeder 9780230_294295_16_bib.indd 323

3/18/2011 1:00:19 PM

324

Bibliography

International Center for Transitional Justice (2008c), ‘Uganda, ICTJ Activity’, http://www.ictj.org/en/where/region1/629.html, retrieved 29 April 2010. International Center for Transitional Justice (2009a),’Confronting Past Crimes at the National Level’, Focus: Regional Dynamics in Central Africa, 2009, www. ictj.org/static/Factsheets/ICTJ_CAR_fs2009.pdf, retrieved 23 June 2009. International Center for Transitional Justice (2009b), ‘Lebanon tribunal fuels doubts by freeing general’, Lyon, A., 1 May 2009, http://www..ictj.org/en/ news/coverage/article/2577.html?printe, retrieved 23 July 2009. International Center for Transitional Justice (2009c), ‘Vincent reassures Lebanese on Tribunal’, The Daily Star, 1 May 2009, http://www.ictj.org/en/news/coverage/article/2573.html?printe, retrieved 24 July 2009. International Court of Justice (2009), ‘Belgium institutes proceedings against Senegal and requests the Court to indicate provisional measures’, Press Release No. 2009/13, 19 February 2009. International Criminal Court (2007), ‘Assembly of States Parties concludes its sixth session’, 14 December 2007, http://www.icc- cpi.int/pressreleases/311. html, retrieved 2 February 2008. International Criminal Court (2008a), ‘Report of the Committee on Budget and Finance on the work of its tenth session, Annex I’, Assembly of States parties, Doc. ICC-ASP/7/3, 26 May 2008. International Criminal Court (2008b), ‘Report on the activities of the Court’, Doc. ICC-ASP/7/25, 29 October 2008. International Criminal Court (2009a), ‘Case Information Sheet, Situation in the Democratic Republic of the Congo, The Prosecutor v. Thomas Lubanga Dyilio, Case No. ICC- 01/04- 01/06’, updated 23 January 2009. International Criminal Court (2009b), ‘Report of the Special Working Group on the Crime of Aggression’, Doc. ICC-ASP/7/SWGCA/2, 20 February 2009. International Criminal Court (2009c), ‘Case Information Sheet, Situation in Darfur, Sudan, The Prosecutor v. Omar Hassan Ahmad Al Bashir (“Omar Al Bashir”), Case No. ICC- 02/05- 01/09’, updated 5 June 2009. International Criminal Court (2009d), ‘Statement to the United Nations Security Council on the situation in Darfur, Sudan, pursuant to UNSCR 1593 (2005)’, Mr,.Luis Moreno- Ocampo, Prosecutor of the International Criminal Court, 5 June 2009. International Criminal Court (2009e), ‘ICC Prosecutor receives materials on post- election violence in Kenya’, Doc. ICC- OTP-20090726-PR438, 16 July 2009, http://www.icc- cpi.int/Menus/ICC/Press%20and%20Media/Press%, retrieved 29 July 2009. International Criminal Court (2009f), ‘Report of the International Criminal Court to the United Nations for 2008/2009’, Doc. A/64/356, 17 September 2009. International Criminal Court (2010), Letter of 12 January 2010 from ICC Director, Jurisdiction, Complementarity and Cooperation Division to Deputy High Commissioner for Human Rights, UN High Commissioner for Human Rights, Ref. OPT/INCOM/PSE/OHCHR-1/JCCD-ag. International Criminal Tribunal for Rwanda (2008a), ‘Statement by Justice Hassan B. Jallow, Prosecutor of the ICTR, to the UN Security Council, 4 June 2008, http://69.94.11.53/ENGLISH/speeches/jallow080604.htm, retrieved 20 November 2008.

10.1057/9780230305052 - International Criminal Tribunals, Yves Beigbeder 9780230_294295_16_bib.indd 324

3/18/2011 1:00:19 PM

Bibliography

325

International Criminal Tribunal for Rwanda (2008b), ‘Letter dated 12 May 2008 from the President of the International Criminal Tribunal for Rwanda to the President of the Security Council, Report on the completion strategy of the International Criminal Tribunal for Rwanda’, Doc. S/2008/322, 13 May 2008, paras. 48, 50 International Criminal Tribunal for Rwanda (2008c), ‘Report of the International Criminal Tribunal for Rwanda, Note by the Secretary- General, Thirteenth annual report of the International Criminal Tribunal for Rwanda for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January 1994 and 31 December 1994’, Doc. A/63/209- S/2008/514, 4 August 2008, paras. 15, 35, 36, 37. International Criminal Tribunal for Rwanda (2008d), ‘Bagosora, Ntabakuse and Nsengiyumva given life sentences; Kabiligi acquitted’, Press Release ICTR/ INFO-9-2-582.EN, 18 December 2008. International Criminal Tribunal for Rwanda (2008e), ‘Address to the United Nations General Assembly, 13th Annual Report of the ICTR, Judge Dennis Byron, President, 13 October 2008. http://69.94.11.53/ENGLISH/speeches/ byron081013,htm, retrieved 20 November 2008. International Criminal Tribunal for Rwanda (2009), ‘Status of Cases’, undated, http://69.94.11.53/ENGLISH/cases/status.htm, retrieved 1 September 2009. International Criminal Tribunal for the former Yugoslavia (1999a), Press release: Introductory statement by Justice Louise Arbour, Prosecutor ICTY and ICTR at the launch of the ICC Coalition’s Global Ratification Campaign, The Hague Appeal for Peace, 13 March 1999, Doc. JL/PIU/401-2, 13 May 1999. International Criminal Tribunal for the former Yugoslavia (ICTY) (1999b), Press release: Statement by Madame Carla del Ponte, Prosecutor of the International Criminal Tribunal for the former Yugoslavia, Doc. PR/ Al P.I.S. / 459- e, 30 December 1999. International Criminal Tribunal for the former Yugoslavia (2000), ‘Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia’, 8 June 2000. International Criminal Tribunal for the former Yugoslavia (2008a), ‘Partnership and Transition between the ICTY and National Courts’ http://www.un.org/ icty/cases- e/factsheets/partnership- e.htm, retrieved 20 September 2008. International Criminal Tribunal for the former Yugoslavia (2008b), ‘The Tribunal’s Core Achievements’, http://www.un.org/icty/cases- e/factsheets/ achieve- e.htm, retrieved 20 September 2008. International Criminal Tribunal for the former Yugoslavia (2009), Press Release ‘Five Senior Serb Officials Convicted of Kosovo Crimes, One Acquitted’, 26 February 2009, http://www.icty.org/sid/10070, retrieved 5 March 2009. International Crisis Group (2008), ‘Conflict history: Sudan’, updated September 20 0 8, htt p://w w w.cr isisg roup.org/home/index.cf m?ac tion= conf lic t _ search&1=1&t=1&c_com, retrieved 27 June 2009. International Crisis Group (2009a), ‘The choices facing Sudan after the arrest warrant for Bashir’, Nadim Hasbani in Al Hayat, 5 March 2009, http://www. crisisgroup.org/home/index.cfm?id=5973&1=1, retrieved 6 March 2009.

10.1057/9780230305052 - International Criminal Tribunals, Yves Beigbeder 9780230_294295_16_bib.indd 325

3/18/2011 1:00:19 PM

326 Bibliography International Crisis Group (2009b), ‘Conflict in Congo’, updated 16 June 2009, http://www.crisisgroup.org/home/index.cfm?id=2829&1=2, retrieved 19 June 2009. International Federation for Human Rights (FIDH) (2008a), ‘Political agreement to try the perpetrators of the most serious crimes in Uganda’, 25 February 2008, http://www.fidh.org/Political-agreement-to-try, retrieved 4 June 2009. International Federation for Human Rights (FIDH) (2008b), ‘Le Sénégal modifie sa Constitution permettant le jugement de Hissène Habré’, FIDH Communiqué, 10 April 2008. International Federation for Human Rights (FIDH) (2008c), ‘Senegal: UN Decision on Hissène Habré Flouted’, 16 May 2008, http://www.fidh.org/ Senegal-UN-Decision- on-Hissene, retrieved 7 April 2009. International Federation for Human Rights (FIDH) (2008d), ‘Condamnation à mort de Hissène Habré par la justice tchadienne: aucune incidence sur son jugement au Sénégal’, 18 August 2008, http://www.fidh.org/Condamnationa-mort- de-Hissene, retrieved 6 May 2009. International Herald Tribune (1999), ‘Order to Release Suspect Puts Court in a Bind’, 20 December 1999. International Herald Tribune (2000), ‘Former Leader of Chad: Human Rights Abuser or Cold War Pawn?’, 2 March 2000. International Herald Tribune (2003), ‘Rwanda seeking ouster of war- crimes prosecutor, Del Ponte draws anger over probes of Tutsi’, 29 July 2003. International Herald Tribune (2004), ‘Khmer Rouge leader now pleads ignorance, Shift comes as trial for genocide nears’, Seth Mydans, 5 January 2004. International Herald Tribune (2008), ‘Bosnian Muslim leader is convicted of cruelty’, 16 September 2008. International Justice Tribune (2007a), Without Saddam, Anfal trial elicits little reaction’, 9-22 July 2007. International Justice Tribune (2007b), ‘Five Khmer Rouge to go before the judges’, No. 72, 23 July 2007. J. Israel (2005), ‘NATO says The Hague Tribunal (or ICTY) belongs to NATO. The Tribunal says they and NATO are Partners’, Emperor’s Clothes, Documents assembled by Jared Israel, 2 July 2005, http://emperors- clothes.com/docs/tribdocs.htm, retrieved 5 November 2008. Judicial System Monitoring Programme (2005), ‘The Future of Serious Crimes’, T.A. Sarmento, Victoria University, Melbourne, Australia, 16–18 June 2005, http://www.jsmp.minihub.org/Reporst/Other%20Reports/Melbourne%20 Symposium/Tiago%20Speech/THE%FUTUR E%20OF%20SER IOUS%20 CRIMES%5B1%5D,by%20Tiago.pdf, retrieved 2 February 2009. Judicial System Monitoring Programme (2007), ‘Digest of the Jurisprudence of the Special Panels for Serious Crimes’, Dili, Timor Leste, April 2007, http:// w w w.jsmp.minihub.org/Reports/20 07/SPSC/SERIOUS%20CRIMES%20 DIGEST%20(Megan)%20250407.pdf, retrieved 29 January 2009. Justice in Perspective (2007), ‘Truth and Reconciliation Commission, Africa, Sierra Leone’, Latest Update, January 2008, http://www.justiceinperspective. org.za/index.php?option=com_content&task=view&i, retrieved 20 December 2008.

10.1057/9780230305052 - International Criminal Tribunals, Yves Beigbeder 9780230_294295_16_bib.indd 326

3/18/2011 1:00:20 PM

Bibliography

327

Justice Without Frontiers (2008), B. Chelebian, in The Monitor, Journal of the Coalition of the International Criminal Court, Issue No. 36, May- October 2008, 18. H.P. Kaul (2007),’The International Criminal Court: Current Challenges and Perspectives’, ‘Symposium – Judgment at Nuremberg’, in Washington University Global Studies Law Review, Vol. 6, No. 3, 575–582. B. Kiernan (1996), The Pol Pot Regime, Race, Power and Genocide junder the Khmer Rouge (New Haven/London, Yale University Press). J. Kingston (2007), ‘East Timor’s search for justice, reconciliation and dignity’, in E.Hughes, W.A. Schabas and R. Thakur (eds) Atrocities and International Accountability, Beyond Transitional Justice (Tokyo, United Nations University Press). H. Köchler (2005), ‘Double Standards in International Criminal Justice, The Case of Sudan’, Statement by Dr. Hans Köchler, President of the International Progress Organization, 2 April 2005, i-p- o.org/Koechler- Sudan-ICC.pdf, retrieved 30 May 2005. R.L. Koenig (1996), ‘50 Years Later, Nuremberg Ghosts Walk’, St. Louis PostDispatch, 29 September 1996. C. Kress (2006), ‘Germany and International Criminal Law: Continuity or Change?’, in Reginbogin. H.R. and Safferling, C.J.M. (eds) The Nuremberg Trials, International Criminal Law Since 1945 (Munich, K.G Saur). R.S. Lee (ed.) (1999), UNITAR, in cooperation with The Project on International Courts and Tribunals, The International Criminal Court, The Making of the Rome Statute, Issues, Negotiations, Results (Kluwer Law International, The Hague/ London/Boston, 1999). Le Monde (2001), ‘Le procès des Khmers rouges n’en finit pas de se préparer’, J.C. Pomonti, 4 July 2001. Le Monde (2008), ‘L’ex- dirigeant khmer rouge Nuon Chea face à ses victimes’, F. Deron, 10–11 February 2008. Le Monde 2 (2009), ‘Sihanouk dans l’ombre des Khmers rouges’, F. Deron, 28 February 2009. Libération (2007), ‘Le Sénégal bloque le procès de Hissène Habré’, 6 July 2007. Libération (2009), ‘Tribunal spécial pour Hariri’, 2 March 2009. M. Macan-Marcar (2006), ‘Hun Sen’s Hand in Genocide Trial Delays?’, Inter Press Service News Agency, 27 November 2006, War Crimes Prosecution Watch, Vol. 2 – Issue 8, 11 December 2006, p.2. http://www.publicinternationallaw.org/warcrimeswatch/archives/wcpw_vol02issue08, retrieved 16 October 2008. M.R. Marrus (1997), The Nuremberg War Crimes Trial 1945–46, A Documentary History (Boston, New York, Bedford Books). S. Maupas (2008), ‘Ramush Haradinaj acquitté par le TPIY’, Radio France International, 4 avril 2008, http://www.rfi.fr/actufr/articles/100/ article_64632,asp, retrieved 16 October 2008. B.D. Meltzer (2000), ‘The Nuremberg Trial: A Prosecutor’s Perspective’, Paper delivered at the Conference on Genocide, John Marshall Law School, 18 April 2000. G.K. McDonald (2003) ‘Assessing the impact of the International Criminal Tribunal for the former Yugoslavia’, in S.R. Ratner and J.L. Bischoff (eds) International War Crimes Trials: Making a Difference? Proceedings of an

10.1057/9780230305052 - International Criminal Tribunals, Yves Beigbeder 9780230_294295_16_bib.indd 327

3/18/2011 1:00:20 PM

328

Bibliography

International Conference held at the University of Texas School of Law, November 6–7 (Austin, Texas). G. Mettraux (2007), ‘The 2005 Revision of the Statute of the Iraqi Special Tribunal’, Journal of International Criminal Justice, Vol. 5, 287–293. M. Milanovic (2007), ‘The Oddity that is the Hariri Tribunal’, Paper presented at the 2007 AHRI conference, http://ssrn.com/abstract=1014906. R.H. Minear (1971), Victors’ Justice, The Tokyo War Crimes Trial (Princeton, NJ: University Press). P. Mitchell (2008), ‘Kosovo: The Hague acquits former PM Haradinaj of war crimes amid alleged witness intimidation’, World Socialist Web Site, 16 April 2008, http://www.wsws.org/articles/2008/apr2008/kla-a16.shtml, retrieved 27 October 2008. K.C. Moghalu (2005), Rwanda’s Genocide, The Politics of Global Justice (New York/ Basingstoke, Palgrave Macmillan). K.C. Moghalu (2008), Global Justice, The Politics of War Crimes Trials (Stanford, Stanford University Press). L. Moreno- Ocampo (2007), ‘Building a Future on Peace and Justice, Address by Mr. Luis Moreno- Ocampo’, Nuremberg, 24–25 June 2007. http://www.icc- cpi. int/otp/otp_events/LMO_20070624.html, retrieved 2 February 2008. J.F. Murphy (1990), ‘Norms of Criminal Procedure at the International Military Tribunal’, in G. Ginsburghs and V.N. Kudriavtsev (eds) The Nuremberg Trial and International Law (Dordrecht/Boston/London, Martinus Nijhoff Publishers). S. Mydans (2009), ‘Young Cambodians, Oblivious of Horrors’, The New York Times, 18 April 2009. Nassim (Damascus, Syria), `Hariri Endless Investigation and Pending Justice’, Instablogs, 4 December 2008, http://liberator.instablogs.com/entry- endlessinvestigation, retrieved 26 July 2009. A. Neier (2008), ‘International justice, Fifteen years of progress’, International Herald Tribune, 13 May 2008. G. Nelaeva (2007), ‘Prosecution of Rape and Sexual Assaults as International Crimes. Explaining Variations’, unpublished dissertation (Budapest, Central European University). G. Oosthuizen and R. Schaeffer (2008), ‘Complete justice: Residual functions and potential residual mechanisms of the ICTY, ICTR and SCSL’, Hague Justice Journal, Vol 3 1/2008. Open Society Justice Initiative (2009), ‘Long-Awaited Agreement to Tackle Corruption at the Khmer Rouge Tribunal Contains Major Flaws’, 24 February 2009. Organization of African Unity (OAU Report) (2000), ‘Rwanda: The Preventable Genocide, International Panel of Eminent Personalities’, http://www. Africa- union.org/Official_documents/reports/Report_rowanda_genocide. pdf, retrieved 21 November 2008. S.M. Patrick (2008), ‘The Dilemma of International Justice’, Council on Foreign Relations, Interview, 28 July 2008. J. Pejic (2002), ‘Accountability for international crimes: From conjecture to reality’, International Review of the Red Cross, Vol. 84, No. 845. J. Persico (1994), Nuremberg: Infamy on Trial, New York, Penguin. V. Peskin (2008), ‘Haradinaj, a forced marriage between politics and justice’, International Justice TRIBUNE, 17 March to 6 April 2008.

10.1057/9780230305052 - International Criminal Tribunals, Yves Beigbeder 9780230_294295_16_bib.indd 328

3/18/2011 1:00:20 PM

Bibliography

329

F. Petit (2005), ‘Interview with judge Claude Jorda: A trial should never last more than 18 months total’. International Justice Tribune Collection 2006, IJT-38, 19 December 2005. N. Pheaktra and G. Wilkins (2009), ‘Judges should focus on current KR suspects: govt’, The Phnom Penh Post, 12 March 2009. S. Pomorski (1990), ‘Conspiracy and Criminal Organization’, in G. Ginsburghs and V.N. Kudriavtsev (eds) The Nuremberg Trial and International Law (Dordrecht/Boston/London, Martinus Nijhoff Publishers). Porter (2008), ‘An Independent Oversight Mechanism for the International Criminal Court’, The American Non- Governmental Organizations Coalition for the International Criminal Court’, a program of the United Nations Association of the United States of America, updated on 6 February 2008. J. Rabkin (2007), ‘No substitute for sovereignty: Why international criminal justice has a bleak future – and deserves it’, in Atrocities and International Accountability, Beyond Transitional Justice (Tokyo/New York/Paris, United Nations University Press). H.R. Reginbogin, C.J.M. Safferling with W.R. Hippel (eds) (2006), The Nuremberg Trials, International Criminal Law Since 1945, 60th Anniversary International Conference, On Behalf of Touro College Jacob D. Fuchsberg Law Center (Munich, K.J. Saur). B.V.A. Röling and A. Cassese (1993), The Tokyo Trial and Beyond, Reflections of a Peacemonger (Cambridge, UK, Polity Press). Y. Ronen (2010), ‘ICC Jurisdiction over Acts Committed in the Gaza Strip, Article 12(3) of the ICC Statute and Non-state Entities’, Journal of International Criminal Justice, Vol. 8, No. 1, 3–27. S.D. Roper and L.A. Barria (2006), Designing Criminal Tribunals, Sovereignty and International Concerns in the Protection of Human Rights (Aldershot (UK) and Burlington (Aldershot, UK, Burlington, VT, USA, Ashgate). L.N. Sadat (2007), ‘Judgment at Nuremberg: Foreword to the Symposium’, Washington University Global Studies Law Review, Vol. 6, No. 3, 492. M.P. Scharf (1997), Balkan Justice, The Story Behind the First International War Crimes Trial Since Nuremberg (Durham, NC, Carolina Academic Press). Serbia (2008), ‘News and Announcements’ Republic of Serbia, Office of the War Crimes Prosecutor, 14 April 2008-10-28, http://www.tuzilastvorz.org.rs/html_ trz/VESTI_SAOPSTENJA_ENG.htm, retrieved 26 October 2008. W.B. Simons (1990), ‘The Jurisdictional Bases of the International Military Tribunal at Nuremberg’, in G. Ginsburghs and V.N. Kudriavtsev (eds) The Nuremberg Trial and International Law (Dordrecht/Boston/London, Martinus Nijhoff Publishers). B.F. Smith (1977), Reaching Judgment at Nuremberg (New York, Basic Books). Special Court for Sierra Leone (2008), ‘Special Court Prosecutor Welcomes Final Judgment in AFRC Case’, Press Release, 22 February 2008. Special Court for Sierra Leone (2009), ‘Special Court Officials Brief U.N. Security Council on Progress, Challenges’, Press Release, 16 July 2009. S. Strangio (2008), ‘Cambodia: Whose Tribunal Is It Anyway?’, Global Policy Forum, 18 February 2008, http://www.globalpolicy.org/intljustice/tribunals/ cambodia/2008/021anyway.htm, retrieved 14 March 2009. Sudan Tribune (2008). ‘Turkey inched closer to ratifying ICC statute during Al-Bashir’s visit’, 22 August 2008. http://www.sudantribune.com/spip. php?article28366, retrieved 19 May 2009.

10.1057/9780230305052 - International Criminal Tribunals, Yves Beigbeder 9780230_294295_16_bib.indd 329

3/18/2011 1:00:20 PM

330

Bibliography

T. Taylor (1949), ‘The Nuremberg Trials: War Crimes and International Law’, International. Conciliation, No. 450, April 1949. T. Taylor (1992), The Anatomy of the Nuremberg Trials (Boston/New York/Toronto/ London, Little, Brown and Company). The Economist (2001), ‘China, The ghosts of misdeeds past’, 13 January 2001. The Post.blog (2009), ‘Ieng Thirith threatens court with hell; Ieng Sary plans to highlight poor health’, 25 February 2009, http://www.Phnompenhpost.com/ index.php/component/option,com_myblog/Itemid,14, retrieved 21 March 2009. Time (2008), ‘Syria, US at Odds Over Hariri Probe’, 16 April 2008. Timor Leste News Archive (2007), ‘Charges “senseless”, Wiranto tells applauding crowd’, 6 May 2007. http://www.jsmp.minihub.org/News/Jan- des%202007/ News%20May%2007.html, retrieved 26 January 2009. J. Trahan (2009), ‘A Critical Guide to the Iraqi High Tribunal’s Anfal Judgment: Genocide against the Kurds’, Michigan Journal of International Law, Vol. 30:305– 408, Winter. Trial Watch (2007), ‘Hissène Habré’, 13 July 2007. http://www.trial- ch.org/ trialwatch/profil_print.php?ProfileID=87&Lang=en, retrieved 7 April 2009. Trial Watch (2008), ‘Ieng Sary’, 10 July 2008, http://www.trial- ch.org/trialwatch/ profil_print.php?ProfileID=660&Lang=en, retrieved 21 March 2009. Trial Watch (2009a), ‘Kaing Guek Eav’, 17 February 2009, http://www.trial- ch. org/trialwatch/profil_print.php?ProfileID=313&Lang=en, retrieved 21 March 2009. Trial Watch (2009b), ‘Jean-Pierre Bemba Gombo’, 17 June 2009, http://www. trial- ch.org/trialwatch/profil_print.php?ProfileID=767&Lang=en, retrieved 23 June 2009. B. Tuzmukhamedov (2005), ‘The ICC and Russian Constitutional Problems’, Journal of International Criminal Justice, Vol. 3, No. 3: 621–626; doi:10.1093/jicj/ mqi048, http://jicj.oxfordjournals.org/cgi/content/abstract/3/3/621, retrieved 17 May 2009. United Nations Commission of Experts (1994), ‘Letter dated 1 October 1994 from the Secretary- General addressed to the President of the Security Council enclosing the Preliminary report of the Commission of Experts Established Pursuant to Security Council Resolution 935 (1994), S/1994/1125, and Final Report, S/1994/1405, 9 December 1994. United Nations Commission on Human Rights (1994), ‘Report on the situation of Human Rights in Rwanda submitted by Mr. R. Degni-Ségui, Special Rapporteur of the Commission on Human Rights, Doc. E/CN.4/S-3/1 of 25 May 1994. United Nations Committee Against Torture (2006), Communication No. 181/2001: Senegal 19/05/2006 – CAT/C/36/D/181/2001, http://www.unhchr. ch/tbs/doc.nsf/(Synbol)/aafdd8e81a424894c125718coo4490f6?Opendocume nt, retrieved 18 April 2009. United Nations Development Programme (2007), ‘Audit of Human Resources Management at the Extraordinary Chambers in the Courts of Cambodia (ECCC), Report No. RCM0172, 4 June 2007. United Nations Development Programme (2008), ‘UNDP Statement on the ECCC Human Resources Management Review’, J. Scheuer, UNDP Country Director, 25 April 2008.

10.1057/9780230305052 - International Criminal Tribunals, Yves Beigbeder 9780230_294295_16_bib.indd 330

3/18/2011 1:00:21 PM

Bibliography

331

United Nations Foundation (2003), U.N. Wire, ‘Serious Crimes Unit Indicts 48 More Suspects; More’, 28 February 2003. http://www.unwire.org// unwire/20030228/32304_story.asp, retrieved 22 January 2009. United Nations General Assembly (2003), ‘Report of the Secretary- General on Khmer Rouge trials’, Doc. A/57/769, 31 March 2003. United Nations Group of Experts Report (1999), ‘Report of the Group of Experts for Cambodia established pursuant to UNGA Res. 52/135, 22 February 1999, transmitted by the Secretary- General with his own report, Doc. A/53/850, S/199/231, 15 March 1999. United Nations Office of the High Commissioner for Human Rights (2009), ‘UN Fact Finding Mission finds strong evidence of war crimes and crimes against humanity committed during the Gaza conflict; calls for end to impunity’, 15 September 2009, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews. aspx?NewsID=91&LangID=E, retrieved 1 May 2010. United Nations Security Council (2002), ‘Statement by the President of the Security Council, S/PRST/2002/21, 23 July 2002. United Nations Security Council (2004), ‘The rule of law and transitional justice in conflict and post- conflict societies’, Report of the Secretary- General, S/2004/616, 23 August 2004. United Nations Security Council (2005a), ‘Letter dated 24 June 2005 from the Secretary- General addressed to the President of the Security Council’ enclosing a summary of the report of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor Leste (then East Timor) in 1999, and the full report (Annexes I and II): S/2005/458, 15 July 2005. United Nations Security Council (2005b), ‘Letter dated 20 October 2005 from the Secretary- General addressed to the President of the Security Council’ enclosing the report of the UN International Independent Investigation Commission (Lebanon), Doc. S/2005/662. United Nations Security Council (2007a), ‘Letter dated 7 June 2007 from the Chargé d’affaires a.i. of the Permanent Mission of Canada to the United Nations addressed to the President of the Security Council’, S/2007/338, 7 June 2007. United Nations Security Council (2007b), ‘Security Council extends term of Former Yugoslavia Tribunal Prosecutor for final period until end of 2007’, 5742nd Meeting, SC/9115, 14 September 2007. United Nations Security Council (2007c), ‘Letter dated 12 November 2007 from the President of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, addressed to the President of the Security Council’, S/2007/663, 12 November 2007, Annex 1, para. 44. United States Department of State (2009), ‘2008 Human Rights Report: Iraq Bureau of Democracy, Human Rights, and Labor’ 25 February 2009, http:// www.state.gov/g/drl/rls/hrrpt/2008/nea/119116.htm, retrieved 24 August 2009. A. Wieviorka (Ed.) (1996), Les procès de Nuremberg et de Tokyo (Paris, Editions Complexe). World News Journal (2008), ‘Letter from ICTR Detainees to the SG Ki Moon and the ICTR President’ of 29 June 2008, on the subject of ‘Denunciation of

10.1057/9780230305052 - International Criminal Tribunals, Yves Beigbeder 9780230_294295_16_bib.indd 331

3/18/2011 1:00:21 PM

332

Bibliography

the obstruction of justice by the ICTR Prosecutor’, http://africannewsanalysis. blogspot.com/2008/07/letter-from-ictr- detainees-to-sg-ki.html, retrieved 1 December 2008. Q. Wright (1947), ‘The Law of the Nuremberg Trial’, American Journal of International Law Vol. 41. M. Young (2009), ‘The Hariri tribunal: A case that time forgot’, Lebanon News, 17 July 2009, http://www.nowlebanon.com/Print.aspx?ID=103127, retrieved 17 July 2009. R. Zacklin (2004), ‘The Failings of Ad Hoc International Tribunals’, Journal of International Criminal Justice, Vol. 2. D. Zolo (2006), La giustizia dei vincitori: Da Norimberga a Baghdad. Rome: Editori Laterza. Reviewed by Toscano, A. ‘Sovereign Impunity’, New Left Review, 50, March April 2008: 128–130.

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Index Adede, A, 91 Afghanistan, 209, 241 African Union, 197, 230, 267–8, 273, 279 Akayesu, J.-P., 92–3 Al-Bashir, Omar, 197, 229–33, 239, 241, 282 Algeria, 197, 227 Ali Kushayb, 228–9, 239 American Society of International Law (ASIL), 194 Amin Dada, 210 Amnesty, 138, 223 Amnesty International, 72, 102, 127, 182, 210–11, 236 Angola, 217 Annan, Kofi, 60–1, 167, 187, 231, 233, 266 Arab League, 235, 279 Arbour Louise, 60, 71–3, 93, 99 Argentina, 197 Armenia, 197 Assad, Al Bashir, 171–2, 178, 180–1 Assad, Hafez, 17 Australia, 38, 166, 197 Aziz, Tarek, 260 Bagosora, Theoneste, 86 Barayagwiza, J.B., 95–8, 105 Belgium, 266–72 Bellemare, Daniel, 173, 177, 183 Bemba, J.P., 209, 222–3 Bernard, Henri, 41, 43–5 Bizimungu, Pasteur, 88 Blaskic, Tihomir, 66–7 Bokarie, Sam, 133 Bosnia, 52, 61 War Crimes Chamber, 74 Botswana, 231, 240 Bozizé, François, 222–4 Brahimaj, Lahi, 69–70 Brazil, 197, 227 Bucyibaruta, L., 102

Burundi, 217 Bush, George W., 61 Byron, C.M.D., 90, 103–4 Cairo Conference, 37 Cambodia Extraordinary Chambers, 83, 145–69, 174–5, 179, 207, 261, 273, 278, 282 Budget, 155–6 Jurisdiction, 151 Structure, 151–5 Canada, 38, 40, 167, 177, 197, 278 Carlsson report, 87 Cassese, Antonio, 9–10, 63, 177, 182, 241–2 Central African Republic, 221–4 Cermak, Ivan, 67–8 Chad, 217, 222, 230, 264–73 Chechnya war, 195–6, 241 China, 11, 37–8, 40, 53, 88, 146, 166–7, 194–5, 197, 227, 232, 241, 273, 278 Chirac, Jacques, 60, 63, 180 Chissano, Joseph, 211–12 Chui, M.N., 209, 216, 219–20 Churchill, Winston, 21 Clinton, Bill, 194 Coalition for International Justice, 113–14, 121 Coalition for the International Criminal Court, 196, 198, 232 Colombia, 209 Comoros, 197 Congo, Democratic Republic of, 197, 216–22, 224 Conventions Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 7, 265–8, 270 Geneva – and Protocols, 5, 31, 187, 192–3, 281 333

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334

Index

Conventions – continued International – on the Suppression and Punishment of the Crime of Apartheid, 7 On the Prevention and Punishment of the Crime of Genocide, 6, 188, 192, 281 The Hague -, 5, 29, 31, 281 Côte d’Ivoire, 209 Council of Europe, 195–7 Crane, David, 135, 143–4 Crimes against humanity, 22, 32–3 Crimes against peace, 22, 29–31 Croatia, 42, 61 Czech Republic, 197 Damiri, Adam, 115 Darfur, 224–8, 239, 240 Dayton Peace Accord, 53, 82 Deby, Idriss, 264, 266 Degli, J.Y., 92 Delic, Rasim, 68 Del Ponte, Carla, 60, 70, 73, 83–4, 96–7, 99–100, 105 Denmark, 167 Dieng, A., 90 Diouf, Abdou, 266 Djibouti, 197 Djindjic, Zoran, 61 Doctors without borders, 229 Donnedieu de Vabres, Henri, 23, 32, 34–5, 42, 188 Duch (Kaing Guek Eav), 145, 157–8, 169 Duclos, Pierre, 92 Dumas, Roland, 53 Dyani, B., 92 Dyilo, T. Lubanga, 206, 209, 216, 218–19 East Timor (Timor Leste), 109–24, 261, 278 Commission for reception, truth and reconciliation (CAVR), 119–20, 124 Commission of truth and friendship (CTF), 120–2 Serious Crimes Process in -, 115–18

Economic Community of West African States (ECOWAS), 135 Military Observer Group (ECOMOG), 126 Egypt, 197 European Court of Human Rights, 195 European Union, 10, 64, 196, 234, 251, 268, 278, 283 European Commission, 161 Falco, Robert, 23 Fofana, M., 133 France, 3, 21, 28, 38, 170–1, 177, 179–81, 193, 200, 231, 241, 251, 265, 268, 273, 278 Fransen, Daniel, 177, 267 Fretilin, 110 Gaddafi, Muammar, 265 Galic, Stanislas, 65–6 Gambia, 241 Garda, B.I.A., 224, 232–3 Gbao, A., 134 Genocide, 36, 257, 281 Cambodia, 145–7 Rwanda, 85–7 Germany, 20–36, 47–8, 177, 276 Gersony, Robert, 99 Ghana, 240–1 Golstone, Richard, 24, 99 Goldstone report, 236–7 Gotovina, Ante, 67–8 Habré, Hissène, 264–73 Habyarimana, Juvénal, 86 Halilovic, Sefer, 68–9 Haradinaj, Ramush, 69–70, 143 Hariri, Rafik, 170–83, 278 Harun, A.M., 228–9 Hirohito, 36, 39, 47 Human Rights Regime, 6–7 Human Rights Watch, 72, 102–3, 127–34, 257, 272 Hun Sen, 147–9, 164 Hussein, Saddam, 3, 247–50, 255–6, 258, 262 Ieng, Sary, 158–9 Ieng Thirith, 158–9

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Index 335 India, 38, 193, 196–7 Indonesia, 109–24, 278 International Center for Transitional Justice, 141 International Committee of the Red Cross (ICRC), 5, 187 International Court of Justice (ICJ), 25, 71, 189, 269–72 International Criminal Court (ICC), 137, 185–243, 261, 273–5, 277–80, 282 Assembly of States Parties, 192, 199, 280, 283 Crime of aggression, 198–200 Interests of justice, 201–3 Review Conference, 283 Rome Statute, 2, 10, 189–93, 251, 253 The origin, 187–9 Universality, 193–8 Victims’ rights, 203–6, 208 International Criminal Tribunal for Rwanda (ICTR), 11–13, 15, 85–106, 143, 148, 168, 179, 189, 193, 253–4, 260, 273, 277 Achievements, 92 Budget, 90 Completion strategy, 102–3, 139 Statute, 89–90 International Criminal Tribunal for the Former Yugoslavia (ICTY), 14, 51–85, 106, 143, 148, 160, 168, 179, 189, 240, 253–4, 260, 277, 281 Achievements, 59, 85, 88 Budget, 57 Completion strategy, 73–9 Statute, 54–7 International Crisis Group (ICG), 240 International Federation of Human Rights (FIDH), 188, 269, 272 International Human Rights Regime, 5–6 International Law Commission, 188, 198 Iraqi Special Tribunal (IST), 3, 241, 247–63 Anfal trial, 257–9 Benefts, 261

Criticisms, 261–3 Dujail trial, 255–7 Intifida trial, 259 Statute, 253–5 Israel, 178, 181, 197, 234–8 Italy, 177 Jackson, Robert E., 23, 26, 29 Jallow, Hassan Bubacar, 90, 100–1 Japan, 37, 167, 177, 197, 200, 276 Jesse-Petersen, Soren, 70 Jordan, 180, 197, 231, 234 Jumblat, Walid, 171 Justice in perspective, 141 Justice without frontiers, 199 Kabbah, Alhaji Dr A.T., 126, 128 Kabila, Laurent, 217–18 Kagame, Paul, 85, 87, 93, 100, 104 Kallon, Morris, 134 Kamara, B.B., 133 Kambanda, Jean, 86, 93 Kandji, Demba, 265–6, 271 Kanu, S.B., 133 Karadzic, Radovan, 52–3, 62–4, 282 Katanga, G., 209, 216, 219–20 Keenan, Joseph B., 38 Kellogg-Briand Pact, 29–30 Kenya, 230, 233–4, 241 Khieu Samphan, 147, 159 Kissinger, Henry A., 166–7 Kondewa, A., 133–4 Kony, Joseph, 210, 212 Koroma, J.P., 126, 133 Kosovo, 53, 60–1, 69–71 Kostunica, Vojislav, 61 Krstic, Rasdislav, 65 Kuwait, 248, 259 Lahoud, Emile, 171–2, 180 Laos, 146 Lawrence, Geoffrey, 23–4, 27, 38 League of Arab States, 236 League of Nations, 277 Lebanon, 170–83, 261 See also Special Tribunal for Lebanon LeMay, Curtis E., 276

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336 Index Liberia, 126, 144, 223 Libya, 222, 231, 265 Lomé Peace Agreement, 126–7, 138, 140 London Agreement, 21, 25 Lon Nol, 145 MacArthur, Douglas A., 37–8, 45, 48 Mc Donald, G.K., 81 McNamara, Robert, 276 Mali, 240 Markac, Mladen, 67–8 Mehlis, Detlev, 172–3, 178, 180 Mexico, 197 Milosevic, Slobovan, 3, 14, 52, 60–2, 82, 135, 144, 229, 240, 282 Milutinovic, Milan, 64–5 Mladic, Ratko, 53 Mobutu, J.D., 217 Moreno-Ocampo, Luis, 4, 192, 219, 234, 239–40, 282 Morocco, 197 Moscow Declaration, 21, 25 Moynier, Gustave, 187 Muna, Bertrand, 91 Munyeshyaka, W., 102 Museveni, Yoweri, 210–11 Namibia, 217 Nasrallah, Hassan, 178 Netherlands, 38, 137, 167, 177, 268 New Zealand, 38, 40, 197 Nicaragua, 232 Nigeria, 135, 144, 197, 278 Nkunda, Laurent, 217–18 Non-governmental organizations (NGOs), 84, 141, 143, 188, 196, 199, 208, 229, 272, 279, 283 Norman, S.H., 133, 139 North Atlantic Treaty Organization (NATO), 53, 63, 71–3, 84, 105–6, 143, 277 Norway, 167 Ntariyamira, Cyprien, 86 Nuon Chea, 147, 159 Nuremberg International Military Tribunal, 1, 3–4, 20–36, 47–8, 79–80, 82, 84, 142, 198, 276–7, 280–1 Nuremberg Charter, 22–3

Obama Administration, 194, 239 Oboto, Milton, 210 Odhiambo, Okot, 212 Okali, A., 91 Ongwen, Dominic, 213 Open Society Justice Initiative, 162–3 Organization of African Unity Report, 87 Organization of the Islamic Conference, 279 Pakistan, 197 Pal, Radhabinod, 40–2 Palestine, 209, 234–8 Patassé, Ange-Félix, 222 Petit, René, 165 Philippines, 38, 40 Ping, Jean, 230 Pinochet, Augusto, 264 Plavcic, Biljana, 64 Pocar, Fausto, 74 Pollard, M., 92 Pol Pot (Saloth Sar), 146–7, 167 Portugal, 110–11 Potsdam Declaration, 37 Rakotomanana, H., 91 Ranariddh, Norodom, 147 Robertson, Geoffrey, 139 Röling, B.V.A., 41–3 Roosevelt, Franklin D., 21 Russia, 11, 21, 28, 37–8, 40, 146, 166–7, 188, 193, 195–7, 200, 232, 241, 251, 276 Rwanda, 12, 85–106, 217 Rwandan Patriotic Front (RPF), 86, 98–101, 104–5, 277 Sankoh, Foday, 126–8, 134 Sarkozy, Nicolas, 180 Saudi Arabia, 180, 197 Schabas, William, 241, 257 Segui, R.D., 98 Sénégal, 197, 264–73 Sesay, Issa, 134 Shea, Jamie, 72 Sierra Leone Armed Forces Revolutionary Council (AFRC), 126–7, 135

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Index 337 Sierra Leone – continued Civil Defence Forces (CDF), 127, 135 Revolutionary United Front (RUF), 126–7, 135 Special Court, 16, 83, 125–44, 174, 223, 260, 277–8; Achievements, 132–5; Budget, 132; Statute, 129–32 Truth and Reconciliation Commission, 126, 140–1, 143 Sihanouk, Norodom, 149 Singapore, 166 Soares, J.A. Osorio, 115 South Africa, 197, 231 Special Tribunal for Lebanon, 170–83 Budget, 177 The Statute, 175–7 Specter, Alen, 180 Srebrenica, 52–3 Stalin, I.V.D., 21 St. James’ Palace Declaration, 21 St. Louis, K., 160 Strijards, Gérard, 182 Sudan, 197, 211, 217, 224–33, 239 Sweden, 167 Switzerland, 268, 278 Syria, 170–3, 177–9, 181–2 Taif Agreement, 171 Ta Mok, 157, 167 Taylor, Charles, 14, 125–7, 135–7, 143–4, 223, 229, 278 Thailand, 146, 166 Timor Leste, see East Timor Tokyo International Military Tribunal for the Far East, 1, 3–4, 20, 36–48, 79, 273, 277 Treaty of Versailles, 29 Trial Watch, 265 Truman, Harry, 21 Tunisia, 197 Turkey, 196–7 Tutu, Desmond, 231 Uganda, 210–17, 231, 241 Lord’s Resistance Army, 210–16 Ukraine, 197 Union of Soviet Socialist Republics (USSR), see Russia

United Kingdom (UK), 21, 37–8, 40, 88, 128, 143, 166–7, 177, 193, 200, 231, 249, 251, 276, 278 United Nations (UN) Assistance Mission to Rwanda (UNAMIR), 87 Charter, 6, 85, 110, 136, 199, 227, 261 Development Programme (UNDP), 160–1 General Assembly, 147, 149 High Commissioner for Human Rights, 111–23, 235 High Commissioner for Refugees (UNHCR), 99 Human Rights Committee, 195 Integrated Mission in Timor Leste (UNMIT), 111 Mission in Kosovo (UNMIK), 70 Mission in Liberia (UNMIL), 137 Observer Mission in Sierra Leone (UNOMSIL), 126, 135 Office of Internal Oversight Services, 91, 94 Protection Force (UNPROFOR), 52 Secretary-General, 82, 148, 163–4, 202 Security Council, 2, 11, 52–4, 60, 73–4, 82, 86–7, 90, 93, 102, 110, 125, 127–8, 167, 171–4, 179–80, 189, 198–200, 202–3, 208, 224, 227, 237, 241, 248, 251, 274, 275, 278–9, 283 Transitional Administration in East Timor (UNTAET), 111, 116–19 Transitional Authority in Cambodia (UNTAC), 146 United States of America (USA), 3, 10, 21, 37–8, 40, 87, 128, 135, 143–6, 166–7, 171, 177, 179–81, 193, 197, 247–9, 251, 255, 259–60, 262–3, 265, 273, 276, 278 Cambodian Genocide Act, 167 On the International Criminal Court, 194 Universal Declaration of Human Rights, 2, 6 Universal Jurisdiction, 264, 267

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338

Index

Védrine, Hubert, 61 Venezuela, 197 Vietnam, 146–7, 165 Vincent, R., 160

War Crimes, 22, 31–2 Webb, William, 38, 41–2, 44 Wiranto (General), 114–15 Yeltsin, Boris, 53, 63

Wade, Abdoulaye, 265–6, 268, 270, 273 Wahid, Abdurrahman, 114

Zacklin, Ralph, 81 Zimbabwe, 217

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