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songBy MARISSA GOLDFADEN

On Tuesday, 12 February, Columbia University World Leaders Forum hosted International Criminal Court (ICC) President, Judge Sang-Hyun Song, for an address titled The International Criminal Court and the Fight Against Impunity for Atrocity Crimes. University President Lee C. Bollinger gave the opening remarks, wherein he spoke of the electoral violence that wracked Kenya in December 2007. During that time, more than 1,000 people died and 600,000+ Kenyans became internally displaced.  As a result, four individuals accused of crimes against humanity–Deputy Prime Minister Uhuru Kenyatta, Cabinet Secretary Francis Muthaura, Education Minister William Ruto, and radio executive Joshua Sang–are due to stand trial this spring at the ICC. Regardless, Kenyatta is running for president in next month’s elections in Kenya.

Judge Song began his speech with a brief personal background, before delving into the titular topic. He stated that the fight against impunity for atrocity crimes is far broader than the ICC, though the ICC is at the forefront. Believing that law is the best tool for prevention, he also stressed the importance of the UN, states, and civil society working together to end impunity. The UN and the International Court of Justice were created in the aftermath of World War II; together with the Nuremberg and Tokyo tribunals, the seeds of international criminal justice were planted. However, it soon took a backseat to the Cold War. The field further developed as a result of the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) in the 1990’s. The Rome Statute was negotiated in 1998 and entered into force in 2002. 

To date, the ICC has tried individuals from DRC, Uganda, the Central African Republic, Sudan, Kenya, Libya, Cote d’Ivoire, and Mali. In 2017, the Court’s jurisdiction will expand to include the crime of aggression. Because peace and justice are interlinked, Judge Song spoke of the mutually reinforcing relationship between the United Nations Security Council (UNSC) and the ICC. Darfur and Libya were both referred to the ICC by the UNSC, but the use of UN funds was prohibited. The UNSC can limit or expand the jurisdiction of the ICC, which bears judicial responsibility, while states are responsible for enforcement. Aside from the issue of money, the UNSC needs to take a more consistent and vigilant approach. 

The ICC is a court of last resort and in order to strengthen national justice systems, Judge Song said development agencies need to be involved. The UN is also in a unique position, as it can advance the rule of law throughout the world. The ICC is not a hierarchical institution. All judges and prosecutors are independent and their own bosses. To carry out its mandate, the ICC must maintain its independence and integrity and remain non-political. 

After discussing the above, the floor was opened for a Q&A session:

The first question was in regards to Kenya, and how the ICC plans to proceed with its trials without local support and cooperation. Judge Song said the cases will begin in April as originally scheduled, and won’t be affected by the political processes, though logistics are not easy. The ICC constantly consults the host government on an array of issues.

The second question focused on the tension between international stands and sovereignty/non-member states. According to Judge Song, countries, perhaps most notably the United States, have their own reasons for their reluctance to sign onto the Court, including a fear of abuse of power by the prosecutors and a fear of unnecessary political influence by the UNSC. In terms of the US/President Obama, there is close cooperation on matter of mutual concern and intelligence sharing. Judge Song also noted that the US government dispatched military advisers to Uganda to aid in capturing Joseph Kony and other LRA members. The ICC endeavors to strengthen national capacities.

Finally, 1/3 of the 18 ICC judges must be women, but today, 11 out of 18 are, which may have some bearing on the development of jurisprudence. Obviously, there are no American judges so there is no American influence, such as the practice of witness proofing. Ad hoc tribunals have jurisdictional primacy over the ICC, which has a strong desire to develop its own jurisprudence.

Photo: bwog.com 

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* Yesterday, the International Criminal Tribunal for Rwanda (ICTR) convicted former Rwandan mayor Gregoire Ndahimana of genocide and crimes against humanity, sentencing him to 15 years in prison. Ndahimana was convicted of the killings at Nyange parish, which was bulldozed while 2,000 Tutsis hid inside during the 1994 Rwandan Genocide, by virtue of his “command responsibility.” In April 2001, an indictment was issued against Ndahimana, who was found hiding in Congo in 2009.

* In Bangladesh, five men in charge of Jamaat-e-Islami, the country’s Islamist party, are facing charges of crimes against humanity, which carry the death penalty. The trial is being held under a version of the country’s International Crimes (Tribunals) Act of 1973, wherein government investigators have wide-ranging rights to detain and question, while suspects lack the usual rights to information and legal advice. Recently, there have been reports of defense lawyers and witnesses being harassed. Further developments, as outlined by Human Rights Watch, include the arrest of one key defense witness and the preparation of criminal charges against nine more. Furthermore, media reports are admitted with no forensic scrutiny. Lastly, the court has rejected a petition of recusal against its own chairman, who had been involved in a contentious inquiry into Jamaat’s alleged liability for atrocities.

* The Extraordinary Chambers in the Courts of Cambodia (ECCC) has ruled that 79-year-old Ieng Thirith, former Social Affairs Minister for the Democratic Kampuchea, is unfit to stand trial and ordered her unconditional release. Thirith was on trial for genocide and other crimes against humanity along with her husband and other former leaders of the 1970s Khmer Rouge regime.

Rwanda: ICTR refers genocide case to Rwandan courts

On Wednesday, the International Criminal Tribunal for Rwanda (ICTR) referred one of its cases to the Rwandan judicial system. The case is that of Jean-Bosco Uwinkindi, a Rwandan Pentecostal pastor charged with genocide, conspiracy to commit genocide, and extermination as a crime against humanity. He was arrested in Uganda in June 2010 and has been in the tribunal’s custody since July of that year.

Previous requests for referral to the Rwandan courts were rejected by ICTR judges on the basis that a fair trial could not be guaranteed. In this case, however, the court noted that “Rwanda had made material changes in its laws and had indicated its capacity and willingness to prosecute cases referred by the ICTR adhering to internationally recognised fair trial standards enshrined in the ICTR Statute and other human rights instruments.” Uwinkindi’s referral is the first one granted since Chief Prosecutor Hassan Bubacar Jallow filed three new transfer requests based on his determination that the legal climate in Rwanda had changed enough to allow fair trial for the accused.

In their ruling, the ICTR judges requested that the African Commission on Human and People’s Rights be appointed to monitor the Rwandan proceedings for fairness.

The ruling, which Rwandan pro-government daily The New Times labeled “a vote of confidence in the Rwandan judicial system,” follows the UN Security Council’s Resolution 1966 asking the tribunal to find ways to wrap up all cases by 2014.

Africa: Civil society groups urge governments to support ICC

A report by African civil society groups and international organizations working in Africa calls on African member states of the ICC to cooperate with and continue supporting the actions of the International Criminal Court. Titled “Observations and Recommendations on the International Criminal Court and the African Union,” the report criticizes AU requests for delays in ICC prosecution of Sudanese president Omar al-Bashir and in the investigation of Kenya’s 2007-08 post-election violence, and condemns AU reluctance to support Security Council Resolution 1970 on Libya.

The organizations, numbering 125 and based in more than 25 countries, make seven recommendations to Africa’s 32 ICC member states: 1) support the ICC at AU summits, 2) push for accountability for serious violators of international law in Darfur and Kenya, 3) voice objections on Kenya and Darfur to the Security Council rather than the ICC, 4) address concerns about plans to expand jurisdiction of the new African Court of Justice and Human Rights, 5) cooperate with ICC prosecution of crimes in Libya, 6) comply with obligations regarding people targeted by ICC warrants, and 7) take a more active role in selection of the next ICC prosecutor.

Currently the African Court of Justice and Human Rights is allowed to rule on general legal matters and human rights treaties. The AU has proposed widening its jurisdiction to criminal prosecution for genocide, war crimes, and crimes against humanity. Noting the complexity of these cases and the region’s lack of experience in handling them, the report advises caution. If the African Court moves ahead, says the report, it must adhere to international legal and procedural standards, have access to adequate resources to conduct investigations, and clarify its standing to make sure it doesn’t undermine ICC authority.

The recommendation regarding the Bashir warrant appears to be a response to the AU call for members not to cooperate with the arrest, while the plea for cooperation with the ICC on Libya aims to ensure that African concerns about military action don’t obstruct justice for crimes against civilians.

Photo: Human Rights Watch

Former commander of the Bosnian Serb army, Ratko Mladic, was captured in Serbia on May 26 after evading arrest for almost 16 years. He is awaiting transfer to The Hague, where he will stand trial before the International Criminal Tribunal for the former Yugoslavia (ICTY). He faces charges of genocide in connection with the massacre of up to 8,000 Muslim men and boys in Srebrenica in July 1995. His capture is a positive step towards ending impunity for genocide, Al Jazeera reported.

Bernard Munyagishari, a former Hutu militia leader suspected of masterminding the Rwandan genocide, was arrested in the Democratic Republic of Congo after evading capture for nearly 17 years. He is wanted on charges of genocide and crimes against humanity, including rape. “The prosecutor [Justice Hassan Bubacar Jallow] hailed the DRC authorities for their co-operation in executing the warrant of arrest, despite the hurdles encountered in tracking down the fugitive,” the International Criminal Tribunal for Rwanda (ICTR) said. The ICTR indictment states that Munyagashari helped prepare and plan the 1994 genocide.

Satellite images provided by the Enough Project have confirmed that the Sudanese government has been attacking Abyei. “Images show the destruction of a southern-aligned base at Todach by tanks or other armored vehicles, fires burning at the town of Dungop, and the presence of northern attack aircrafts and bombers capable of reaching Abyei town within an hour. Images also show that a former Misseriya encampment at Goli has largely been vacated, confirming reports of Misseriya movements further south.” The Satellite Sentinel Project produced a ‘human security crisis alert’ detailing their findings.

Photo: BBC.co.uk

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