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By MARISSA GOLDFADEN

In a recent lawsuit, current Yale professor and former Mexican president Ernesto Zedillo has been accused of committing war crimes and crimes against humanity during his presidential tenure. But the U.S. State Department is arguing that Zedillo is immune from the suit, since his actions in connection with the 1997 Acteal massacre of 45 indigenous villagers were taken as part of his official duties as head of state.

Zedillo’s lawyer, Jonathan Freiman, motioned to dismiss the $50 million suit in January, citing the same reasoning. According to the Yale Daily News, “Ingrid Wuerth, a professor at Vanderbilt Law School who has written about immunity issues, said the courts have tended to side with State Department suggestions of immunity. She cautioned that such practices lend the government political power in altering the course of judicial proceedings.”

Though such cases are rare, it is common practice for the State Department to provide immunity recommendations to U.S. courts for cases concerning foreign heads of state. While State Department legal adviser Harold Koh wrote that the agency’s position took into account “the overall impact of [the case] on the foreign policy of the United States,” Curtis Bradley, a professor at Duke University School of Law, said it was primarily grounded in principles of international law. He said a federal court would have considered similar principles, and would likely have reached a comparable conclusion about Zedillo’s immunity even without the State Department recommendation.

This is an interesting case for those concerned with prevention of mass atrocities, as it raises the question, At what point does immunity become impunity?

Also in the news this week, the United States is refusing to extradite Bolivian ex-president Gonzalo Sánchez de Lozada to face charges of genocide and crimes against humanity. In October 2003, then-president Sánchez de Lozada ordered security forces to suppress popular protests against economic inequality. Sixty-seven men, women, and children were killed, and 400 injured, almost all of them poor and from the nation’s indigenous Aymara communities. Sánchez de Lozada fled to the United States, and has been living here ever since.

Writes Glenn Greenwald in The Guardian:

In 2007, Bolivian prosecutors formally charged him with genocide for the October 2003 incident, charges which were approved by the nation’s supreme court.

Bolivia then demanded his extradition from the US for him to stand trial. That demand, ironically, was made pursuant to an extradition treaty signed by Sánchez de Lozada himself with the US. Civil lawsuits have also been filed against him in the US on behalf of the surviving victims.

In the civil case against him, a U.S. appellate court ultimately ruled that Sánchez de Lozada was immune from damages or civil lawsuits, overturning a lower court ruling that there were sufficient allegations of genocide and war crimes against him to allow the suit to proceed.

The topic of immunity for heads of state, both sitting and former, is more widely debated than ever. As it should be. The question of how genocide, war crimes, and crimes against humanity can be legitimately seen as part of a head of a state’s “official duties” is one that must be answered.

Photo: yaledailynews.com

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Ahmed Harun, governor of the Sudanese state of South Kordofan, has been caught on film giving orders to the Sudanese army that may be interpreted as encouraging troops to commit war crimes against rebels.

In the video, published by Al Jazeera yesterday, Harun, who has already been indicted by the ICC for crimes against humanity in Darfur, instructs his soldiers to “take no prisoners” in a speech delivered just before his soldiers enter rebel territory.

Says Harun: “You must hand over the place clean. Swept, rubbed, crushed. Don’t bring them back alive. We have no space for them.”

According to United to End Genocide, civilians in South Kordofan are not only in immediate danger of suffering direct, undifferentiated violence simply by virtue of living there, but are also in danger of starvation due to the ongoing conflict’s interference with adequate farming and the delivery of food aid.

ICC Chief Prosecutor Luis Moreno-Ocampo called for Harun’s arrest, saying: “A commander has a responsibility to ensure that his troops are not violating the law. He cannot encourage them to commit crimes. ‘Take no prisoners’ means a crime against humanity or a war crime, because if the prisoner was a combatant it is a war crime and if the prisoner was a civilian it’s a crime against humanity.”

Advocate Eric Reeves, who has written extensively about Khartoum’s aerial military attacks on civilians throughout Sudan, recently wrote an article for the Sudan Tribune calling for pressure on Khartoum to accept the multilateral humanitarian access proposal put forth jointly by the African Union, the Arab League, and the United Nations.

On March 29, the U.S. Senate unanimously passed a resolution urging the government of Sudan to allow immediate and unrestricted humanitarian access to, among other regions, South Kordofan and Blue Nile. The resolution also encourages the two Sudans to cease hostilities, return to negotiations, and allow any peaceful civilians in the area to voluntarily leave and take refuge somewhere safer.

Photo: ch16.org

Scott Straus, Winnick Fellow at the Committee on Conscience at the United States Holocaust Memorial Museum, recently wrote a working paper entitled, “Identifying Genocide and Related Forms of Mass Atrocity.” The central issue addressed by the paper is how members of the atrocity prevention community (his terminology) label crisis situations and identify emergent patterns of violence. Straus says conceptual analysis matters because:

  1. The atrocity prevention community must have a working definition of what class of events is in its domain of response.
  2. It is objectively difficult to know in the midst of the crisis whether or not it will escalate to a level that would trigger a response, that is, to genocide or mass atrocity.
  3. Conceptual analysis can help outside observers to identify and categorize different types of situations of atrocity and to recommend policy responses on the basis of those distinctions.
  4. Conceptual analysis and rigor will help organizations use language that over time will maintain or enhance their credibility.

Straus first endeavors to define/conceptualize the term “genocide.” He writes that the core consensus is that “genocide refers to violence that is extensive (deliberate, large scale, organized, systematic, sustained, widespread), group-selective (targeted at groups), and group-destructive (designed to destroy groups in particular territories under perpetrators’ control). Raphael Lemkin coined the term genocide in 1944 to mean the “destruction of a nation or of an ethnic group” and as the “destruction of human groups.” The 1948 United Nations Genocide Convention defines genocide as the “intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such.” Five methods of genocide are then specified:

  1. killing members of the group;
  2. causing serious bodily or mental harm to members of the group;
  3. deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
  4. imposing measures intended to prevent births within the group; and
  5. forcibly transferring children of the group to another group.

The next part of the paper focuses on indicators and questions of genocide. In addressing group-selective patterns of violence, Straus poses four questions to help determine if genocide is taking place or about to occur: Does evidence exist of isolating and separating out specific identifiable social groups, whether those groups are ethnic, racial, religious, political, economic, or even regional? In the course of violence, does evidence indicate that perpetrators are identifying individuals for the commission of violence on the basis of those individuals’ ostensible membership in groups? Are civilians being deliberately targeted? Does evidence indicate that the violence is conforming to a logic of attacking groups, that is, are symbols or stereotypes of specific groups being targeted?

Straus goes on to say that in addition to groupness, genocide is extensive violence. To assess extent, “outside observers can look at deliberateness, at scale (are substantial numbers being targeted?), at systematicity (organization, coordination, patterned regularity), at time (repetition and sustainment, which are implied by systematicity), at geography (widespread breadth), and at capacity (ability to inflict violence, involvement in violence-specialized institutions). Lastly, another method of evaluating whether or not genocide is taking place is to ask if the pattern of violence is consistent with a logic of group destruction: Do the patterns of violence in genocide include acts that are consistent with group destruction? Does the violence target not only those members of a social group who pose an immediate threat (according to the perpetrator), but also those who are essential to a group’s reproduction, notably children and women clearly not engaged in combat? Is the language used to justify the violemce consistent with a logic of group destruction? Genocide exhibits a logic of “final solutions.”

Straus uses Darfur and Kenya as case examples, then discusses sources of conceptual disagreement. These include whether or not genocide should be the gold standard for intervention, determining how much group destruction needs to occur to cross the threshold to “genocide,” and whether the Holocaust should be the model for genocide. Observers also have conflicting objectives in when and how they use the term. There is a moral or ethical objective, the fact that genocide is also a legal concept, and a more empirical usage as a concept that identifies a specific type of violence.

Because of both the limits and ambiguities of the term “genocide,” more general umbrella concepts are gaining popularity, namely mass atrocity, crimes against humanity, and mass killing. Writes Straus,

The most common emerging general concept in the atrocity prevention community is mass atrocity. Mass atrocity has no formal, legal definition, but in most usages the concept aggregates other legal (or commonly employed) concepts, in particular genocide, crimes against humanity, war crimes, and ethnic cleansing… Ethnic cleansing has no formal legal definition, but in general ethnic cleansing might be thought of as a set of actions designed to remove forcibly specific civilian groups from a territory… War crimes are defined in Article 8 of the Rome Statute. Although many different kinds of cases are covered under war crimes, in general, war crimes refer to significant violence against civilians in wartime. War crimes include killing, torture, hostage-taking, depriving prisoners of war rights, destroying shelter, and generally attacking civilians deliberately in war.

Three other important umbrella concepts are mass killing, mass violence, and democide (the murder of any person or people by a government). Then there are the parallel concepts of politicide, classicide, and gendercide. Politicide refers to the destruction of political groups in the way that genocide in the Convention refers to the destruction of ethnic, racial, national, and religious groups. Classicide refers to the intended mass killing of social classes, and gendercide refers to systematic destruction of gender.

To conclude, Straus recommends

that those in the atrocity prevention community should choose a standard that is reasoned, transparent, and, if response is the goal, of a high threshold. The standard should also be flexible enough to allow for ambiguities as events unfold. The net sum of the conceptual analysis in this paper is effectively a choice between two standards. One derives strictly from an analysis if terms that are broader than genocide… The second standard hews more closely to genocide but is broader and tries to avoid some of the problems with the way genocide has been incorporated into international law… drawing from the scholarly literature that emphasizes groups beyond those protected in the Convention, the conceptual standard does not limit itself to ethnic, racial, religious, and national groups. The standard applies to any social group that the perpetrator targets. The standard does not focus on intent per se, but rather reorients attention to issues of extent and scale, in particular the proportion of the target group that is affected by the violence.

Photo: krieger.jhu.edu

Hitherto known only to a small group of academics, the United Nations headquarters houses an archive documenting 10,000 cases against accused World War II criminals, all of which belonged to the United Nations War Crimes Commission. The Commission was established in October 1943 by “17 allied nations to issue lists of alleged war criminals – ultimately involving approximately 37,000 individuals – examine the charges against them and try to assure their arrest and trial.” In 1949, the Commission was dissolved and the UN made the files only available to governments on a confidential basis. In 1987, the rules were changed to allow access to researchers and historians who possess authorization from both their government and the UN Secretary-General. Researchers in Britain and America are now campaigning to make the files public.

In addition to contributing to history’s understanding of the Holocaust, says Dr. Dan Plesch, director of the Centre for International Studies and Diplomacy at the School of Oriental and African Studies in London, “The importance of this archive could lie in prosecuting today for crimes of aggression, rape, cultural crimes, environmental crimes, because there’s a wealth of precedent far beyond Nuremberg. In fact, these trials are 100 times greater in extent than the Nuremberg trials.” According to Plesch,

Records indicate that alongside the Nuremberg trials, where prominent Nazis faced justice, the UN commission endorsed war crimes trials for some 10,000 individuals. It is known that 2,000 trials took place in 15 countries including the United States. The case law of all of these has been forgotten. The Nuremberg trials only constituted one percent of the post-World War II prosecutions. A first look at the UN War Crimes Commission archive of the other 99 percent shows a gold mine of precedent and practice that can help hold modern-day war criminals to account.

Plesch and two other researchers have written a letter to UN Secretary-General Ban Ki-moon, urging him to ensure full public access to all the records by pointing out how doing so would be beneficial not just to the public, but to the work of the UN. Paul Shapiro, director of the Center for Advanced Holocaust Studies at the Holocaust Memorial Museum in Washington, said the Museum is also seeking to open the War Crimes Commission files, as one of its mandates is to collect archival material.

Photo: churchhouse.org.uk

The United Nations University Institute for Sustainability and Peace (UNU-ISP) is currently undertaking a project that examines the relationship between the Responsibility to Protect (R2P) and the Protection of Civilians (PoC) in armed conflict situations. UNU-ISP co-organized and participated in three academic–practitioner workshops in 2011, held in Manila, Kuala Lumpur and Jakarta. Through dialogue and discussion, critical feedback was gathered to refine the handbook for protection actors. The handbook was presented to the UN Secretariat in New York last month, and further disseminated to policymakers and officials of member states.

Having coined the phrase Protection of Civilians, the Fourth Geneva Convention has become its firm international legal establishment. According to Dr. Vesselin Popovski of the UNU-ISP, after the world failed to protect the civilian Kosovo Albanians “from ethnic cleansing in 1998-99 — followed by controversial unauthorized military intervention by NATO in March 1999, an International Commission on Intervention and State Sovereignty (ICISS) was formed.” It was through an ICISS debate on humanitarian intervention that R2P was ultimately formulated and “became a worldwide shared emerging norm in 2005 when almost 150 world leaders — the biggest ever gathering of Heads of State in history — adopted the document “World Summit Outcome.”

PoC and R2P are alike in that they are both concerned with civilian suffering and mass human-induced violence. In order for the R2P threshold to be met, atrocity crimes–genocide, war crimes, and crimes against humanity–must be planned and systematic. PoC, on the other hand, is only applicable in situations of armed conflict. Dr. Popovski writes,

To summarize: in many situations, the two circles of R2P and POC can overlap — for example, when war crimes against civilians or crimes against humanity (including ethnic cleansing and genocide) are committed during armed conflict. A situation that would fall under POC, but not R2P, is the protection of civilians threatened by escalating armed conflict if mass atrocities are not planned and committed. And a situation that would trigger R2P, but not POC, is a threat from mass atrocities planned outside an armed conflict.

Moreover, situations may start out otherwise but later metastasize into an armed conflict, thus raising demands for PoC. To further differentiate the two concepts, R2P is a matter for States only, but PoC can be obligatory for non-State actors. As mentioned above, R2P and PoC share similar humanitarian concerns, “yet their specificity is important. R2P…does not undermine; rather, it serves as a catalyst for action — it can mobilize political will and complement the PoC agenda.”

Photo: stimson.org

Burma’s government this week continued its campaign against ethnic-based forces, with the Kachin Independence Army (KIA) claiming its headquarters in Shan State had fallen. The KIA commander in Shan State said Burmese government forces took control of the base on September 27, but that Kachin operations remained in other parts of the state.

Burma News International reported that Internally Displaced Persons (IDPs) in Shan State, numbering some 20,000, were thought to be hiding in civilian homes that may be subject to government investigation. It quoted the KIA as claiming that there were over 5,000 villages and 250,000 civilians living in northern Shan State, which became a war zone on September 24 when the Burmese government launched its current offensive.

Unlike refugees in Kachin State in northeastern Burma, who are receiving support from churches, NGOs, and Kachin communities abroad, the people in northern Shan have received no outside assistance. On September 27 the Irrawaddy quoted the Thailand Burma Border Consortium, a relief agency on the border between the two states, as claiming, “Since 1997, the Burmese regime has destroyed more than 3,000 villages and displaced over half-a-million civilians in eastern Burma.”

Numerous resolutions by the UN General Assembly, including Resolution 16/24 in April, have called on the Burmese government to improve its human rights record. Organizations and governments—including Human Rights Watch, Burma Campaign UK, the United States, and Canada—support the establishment of a UN Security Council Commission of Inquiry into crimes against humanity and war crimes in Burma.

Despite recent developments, the International Crisis Group, in a briefing last week, argued that the reform process championed by the newly elected president, Thein Sein, was making progress, noting: “Military legislators have . . . supported an opposition motion in the lower house calling on the president to grant a general amnesty for political prisoners.” And Voice of America published an article in May saying that ASEAN was convinced enough of the country’s new direction that it is considering giving Burma the ASEAN chairmanship in 2014.

Photo: irawaddy.org

Today’s blog post focuses on the topic of transitional justice:

* Last week, the lower house of Brazil’s congress, the Chamber of Deputies, approved the creation of a National Truth Commission. The commission will investigate human rights abuses—including forced disappearances, torture, and arbitrary executions—committed under the country’s 1964–85 military regime. It is expected that the bill will now be promptly approved by the Brazilian Senate. While noting the bill’s significant strengths, the International Center for Transitional Justice (ICTJ) has also pointed out its challenges and subsequent opportunities for successfully bringing justice to victims and their families, as well as preventing future violations. Read the ICTJ’s commentary here.

* Current UN Special Rapporteur on Torture and former ICTJ president Juan E. Méndez published a book this month, Taking a Stand: The Evolution of Human Rights, together with South Carolina Poet Laureate Marjory Wentworth. A long-time political activist, Méndez was arrested and tortured by the Argentinean government in the 1970s. He was the first executive director of Americas Watch, in 1981, and the UN’s first special adviser on the prevention of genocide, from 2004 to 2007. Taking a Stand offers critical analysis of human rights movements throughout the world and policy recommendations on both the international and domestic levels. The book has garnered favorable reviews, in part for its reliance on facts and research in addition to the author’s personal experiences.

* On September 16, ICTJ held a panel discussion called “Why the Silence on Sri Lanka?” on accountability for crimes against humanity and war crimes committed during the country’s civil war. Earlier this year, the UN Secretary-General’s Panel of Experts on Accountability in Sri Lanka released a report alleging that scores of civilians were killed by governmental operations against the Liberation Tigers of Tamil Eelam between January and May 2009. Led by Gordon Weiss, former UN spokesman in Sri Lanka and author of The Cage, and Dr. Vasuki Nesiah, academic and Sri Lanka human rights activist, the discussion focused on ways to ensure proper investigation of all crimes in Sri Lanka and other steps that will enable victims, and the country as a whole, to work toward a sustainable peace.

Photo: livejournal.com

Burma

The United Nations, human rights organizations, and activists around the world continue to pressure Burma to cease ongoing human rights violations, particularly the arrest and detention of video journalists. On August 31 the ASEAN Inter-Parliamentary Myanmar Caucus issued a press release noting that Tomás Ojea Quintana, UN Special Rapporteur on the Situation of Human Rights in Myanmar, released a statement after his most recent visit to the country, expressing “serious concern for ongoing human rights abuses in the country, including the continued incarceration and ill-treatment of prisoners of conscience, attacks against civilians in border areas, and a host of violations of economic, social and cultural rights.”

In response to a call from the Democratic Voice of Burma, on September 9 human rights organizations joined Reporters without Borders in demonstrations outside Burmese embassies in Bangkok, Paris, Geneva and London, in support of the Free Burma VJ (Free Burma’s Video Journalists) campaign. “Around 20 journalists and bloggers have been arrested since the 2007 Saffron Revolution,” Reporters Without Borders wrote. “Hla Hla Win is serving a 27-year jail sentence because she wanted to tell the world what was happening in Burma. There are many other Burmese journalists who, like her, have paid a high price for exercising their right to report the news.”

On September 12 the Burma Partnership wrote that the Burmese government’s creation of a national human rights commission was “nothing more than window dressing.” UN Secretary General Ban Ki-moon said in his report to the 66th General Assembly on the situation of human rights in Burma, “the detention of all remaining political prisoners will continue to overshadow and undermine any confidence in the Government’s efforts.”

Libya

Responding to a September 13 report by Amnesty International, the National Transitional Council in Libya promised to investigate all instances of human rights abuse cited in the report, and renewed its pledge to adhere to international humanitarian law. The Amnesty report said that while Gaddafi loyalists committed crimes that may amount to crimes against humanity, the anti-Gaddafi rebels committed violent acts of reprisal that could amount to war crimes. In a statement on September 13, Claudio Cordone of Amnesty International called on the NTC to ensure “a complete break with the abuses of the past four decades, and to set new standards by putting human rights at the centre of their agenda.”

That same day, the NTC issued a statement condemning all abuses committed during the war, and said it “will move quickly to act on Amnesty’s findings to make sure similar abuses are avoided in areas of continued conflict such as Bani Walid and Sirte.” The NTC also stated that it would now be “putting its efforts to bring any armed groups under official authorities and will fully investigate any incidents brought to its attention.”

Photos (from top): beyonddistantborders.wordpress.com, independent.co.uk, worldbulletin.net

* Sri Lanka is trying to prevent a report by a UN panel of experts from being forwarded to the Human Rights Council. The report, written in March, detailed “credible allegations which, if proven, indicate that a wide range of serious violations of international humanitarian law and international human rights law were committed both by the Government of Sri Lanka and the LTTE [Liberation Tigers of Tamil Eelam], some of which would amount to war crimes and crimes against humanity.” The report also called for an independent international probe into the violations and invited the Human Rights Council to reconsider the conclusions from its May 2009 special session on Sri Lanka, during which a resolution was adopted praising the outcome of the country’s 1983–2009 civil war.

* On September 9, INTERPOL issued Red Notices, the agency’s highest arrest alert, for Muammar Gaddafi, his son Saif al-Islam Gaddafi, and Abdullah Senussi, his former director of military intelligence. The International Criminal Court indicted the three for war crimes and crimes against humanity in June. INTERPOL’s action is considered a crucial step towards recognition of Libya’s National Transitional Council [NTC] as the country’s official government. It is speculated, but unconfirmed, that Gaddafi, like many other members of his family and regime, is being harbored in Niger. The Red Notices also have the effect of restricting the ability of the fugitive men to cross international borders.

* In the first ICC case on post-presidential election violence in Kenya in 2007, the prosecution and defense have accused one another of “unclear evidences.” Defense attorneys argue that the prosecution did not conduct proper investigations, while the prosecution maintains that defense witnesses have been inconsistent and contradictory. The first three suspects summoned by the ICC for the confirmation of charges hearings are former ministers William Ruto and Henry Kosgei and radio presenter Joshua Sang, all members of the Orange Democratic Movement, the opposition party at the time of the elections. The ruling on whether or not initial evidence presented can support crimes against humanity charges in full trial is expected out on December 24.

Photo: jour210srilanka.wordpress.com/

* Four former Guatemalan military officers are being tried for crimes against humanity they allegedly committed in 1982. They are accused of taking part in the Dos Erres Massacre, in which government forces murdered over 200 villagers suspected of being rebel sympathizers.

* Today a United Nations–organized seminar aimed at preventing genocide in South Sudan, hosted in the country’s capital of Juba, concludes. Special Adviser Francis Deng said the UN hopes to “prevent the new State from getting into. . . errors”—such as “discrimination, dehumanization, inclusivity, marginalization, and suppression”—that led to the breakup of Sudan.

* The Democratic Republic of Congo’s main opposition party, the Movement for the Liberation of Congo, chose Jean-Pierre Bemba, currently on trial at the International Criminal Court for war crimes and crimes against humanity, as their presidential candidate. Bemba is accused of leading militias that killed hundreds of civilians in the Central African Republic. 

* President Mahinda Rajapaksa dismissed the controversial British documentary “Sri Lanka’s Killing Fields,” claiming the footage, which purportedly shows the Sri Lankan army committing war crimes during the final weeks of the country’s civil war, was a “film” staged by the rebel Tamil Tigers.

* United Nations officials issued a statement saying Syrian authorities may have committed crimes against humanity in their suppression of the democratic uprisings sweeping the country. Citing reports of the murder and arrest of civilians, Francis Deng and Edward Luck called for an investigation and requested that the Assad regime abide by international regulations when responding to protests.

Photos (from top): thebellforum.com, realsociology.edublogs.org, Associated Press

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