Syria and the International Criminal Court

The steps being taken in the UN and ICC to take international legal measures against Syria were predictable.
Syria was warned that the recent outbreaks of violence would be an opportunity for those opposed to its government to make moves to destabilise its regime and prosecute its leadership.
The political and legal consequences of such measures are very uncertain but it is clear that the ICC process is being used during conflicts to aid one side against another.
This use of international legal procedures as a weapon in a conflict was seen first in the 1999 Kosovo conflict when the ICTY Prosecutor entered the fray to issue for the first time an indictment against the Serbian President Slobodan Milosevic as a form of support to NATO in its campaign.
The indictment was not charging him with crimes in Srebrenica, Vukovar, Bosnia or Croatia. It only concerned Kosovo, which NATO was attempting to wrest from the control of Serbia, with measures that also included attacks in Serbia which is outside Kosovo.
It has also occurred this year in Libya, where the ICC, NATO and the Security Council have been combining their efforts. This conflict concerns the right of a sovereign state to protect itself from civil uprising. Of course measures taken must be proportionate and lawful. But here we also heard the ICC enter into the propaganda business by claiming the Gadaffi troops were issued with viagra to rape women.
Consider now the allied invasion of Iraq. This is viewed by all international legal jurists as plainly falling into the illegal invasion category. Much death and destruction has been caused. But was there any international prosecution notwithstanding such overwhelming evidence and weight from legal experts? Where is that ICC Prosecutor when you need him? The Guardian weblink below says it all.
UN report details abuses that could amount to crimes against humanity as Barack Obama prepares to call on Assad to resign
http://www.guardian.co.uk/world/2011/aug/18/syria-un-assad-officials-icc-prosecution

Professor William Schabas discussed with Steven Kay QC and Toby Cadman at the Salzburg Summer School

Professor William Schabas discussed with Steven Kay QC and Toby Cadman at the Salzburg Summer School International Criminal Law Conference the point relating to the issue of ‘state or organisational policy" in the Kenya case at the ICC. Professor Schabas blog is available on http://humanrightsdoctorate.blogspot.com/

London Riots: Were they Crimes Against Humanity?

Readers of this blog will know that I am not an enthusiast for expansive approaches to crimes against humanity. I have written on several occasions criticising the very broad interpretation given to crimes against humanity by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia when it said that no plan or policy was required as an element of the crime. The concern was that without such an element, a range of acts committed by gangsters, motorcycle gangs, serial killers and the like would be encompassed within the definition. Proponents of a broad interpretation want to use it to include terrorists. And recently, I wrote about the attempts to label the recent terrorist killings by an insane individual as crimes against humanity.
Certainly, according to the definition adopted by judges at the International Criminal Tribunal for the former Yugoslavia, the recent riots in London would meet the terms of crimes against humanity.
At the International Criminal Court, things are slightly different. There, article 7(2)(a) of the Rome Statute requires that crimes against humanity be perpetrated as part of a 'state or organizational policy'. Academics such as Cherif Bassiouni have argued - correctly, to my mind - that the word 'organizational' must be read in its context. It is not a general invitation to include any form of organized criminal activity. Rather, the organization in question must be either part of the state or 'state-like', in the sense of association with an entity that behaves like a state, that controls territory, etc. But fans of the broad approach argue that the term 'organizational' means that the Statute is not confined to acts perpetrated by a State or state-like entity. They want the Rome Statute to be as extensive as the case law of the Yugoslavia Tribunal.
The first serious interpretation of this provision by the International Criminal Court has arisen in the Kenya situation. It deals with post-electoral violence. In the initial decision authorising the investigation, Judge Hans-Peter Kaul wrote a very compelling dissenting opinion in which he insisted that such acts did not belong within the scope of crimes against humanity. He referred to the historical origins of the term crimes against humanity, and the need for the term to be focussed on the state.
But Judge Kaul was overruled by the majority, which leaned towards the more expansive view. At the extreme, this takes crimes against humanity to mean all organized acts that are not random. Ultimately, the gangs and serial killers fall within the net.
And that would mean that those involved in the London riots are also perpetrators of crimes against humanity. There may be some distinctions between the post-electoral violence in Kenya and the London riots, but they are nuances, matters of degree. One cannot draw a bright line between them.
It will be argued that in any event the British justice system is dealing very aggressively with the London violence, and that as a result the crimes would not be subject to prosecution on the basis of complementarity. The British justice system is 'willing and able' to bring those responsible to justice.
But here we encounter another problem with the way the Rome Statute is being applied. The judges at the International Criminal Court have tended to an analysis whereby it is not adequate that perpetrators be tried for any crime in order for complementarity to be addressed. The theory is that they must be tried for the precise crimes under the Rome Statute. Otherwise, the terms of the Statute are not respected and the case is admissible. In the first case, Lubanga, the accused was being prosecuted for serious crimes in the Congo, but he was not being prosecuted for recruiting child soldiers. As a result, the Court said the case was admissible.
Are any of the teenage hoodlums in London being prosecuted for crimes against humanity? Is Britain failing in its duty to adequately describe the nature of the crimes - and thereby deprive victims of the justice they are entitled to - by labeling the acts using ordinary criminal classifications, such as assault, mischief, theft, arson, vandalism and so on?
And what about the gravity threshold? Again, the analysis of the Prosecutor is so nebulous as to make it a flexible tool capable of describing virtually anything as sufficiently serious (or not). No doubt he will answer that the London riots are nut sufficiently serious to meet the gravity threshold.
This would make a good exam question. 'Explain why, in light of the case law of the International Criminal Court, the teenage (over 18) perpetrators involved in the August 2011 riots in London, should not be charged by the Court for crimes against humanity.'
Of course we all know that riots in Nairobi and riots in London are not the same thing. Should anyone be surprised that so many Africans think the Court is focusing its attention unfairly on their continent.

Senior Lawyer Visits Bangladesh War Crimes tribunal

A senior war crimes lawyer, is visiting the Bangladesh War Crimes Tribunal in Dakhar today. Nicholas Koumijan is an emissary of US War Crimes Ambassador Stephen Rapp and his visit is at time of mounting concern as to the nature and quality of this tribunal. Toby Cadman of 9 Bedford Row International was refused entry this week into Bangladesh to attend a conference and meet local defence counsel. Steven Kay QC and John Cammegh working with Toby on the defence cases are also believed to be blacklisted as the Government of Bangladesh attempts to prevent foreign scrutiny of its conduct in the court.
For the full story read David Bergman’s article at:

http://newagebd.com/newspaper1/frontpage/29271.html

The International Crimes Tribunal in Bangladesh

The International Crimes Tribunal in Bangladesh is attempting to obscure its accountability by refusing to provide written copies of its oral orders. the ICT and the Government of Bangladesh have frequently attempted to promote the validity of the proceedings in the much criticised national War Crimes Tribunal by asserting that there is a final remedy for any unfairness in the proceedings through the right of appeal after the trials. This is because all rights to interlocutory appeal or challenges to the court have been removed by the founding statute of the International Crimes Tribunal Act 1973, which also removed all constitutional rights from those detained under the powers of the ICTA. The lack of written decisions will inevitably mean that there will be a dispute between the parties as to what was ordered and the reasons for such an order. The lack of fairness in the proceedings so far towards the Defence will inevitably mean that they will be denied the opportunnity to accurately reflect the serial injustices that have taken place and will continue to take place.

Syria: Is Now the Right Time for Bashar al-Assad to Face Justice?

A guest post by Jake Taylor

The use of lethal force to disperse demonstrations is within a government’s prerogative and is not an international crime. But months of a persistent and brutal crackdown, the likes of which are occurring in Syria, which, according to US Secretary of State Hillary Clinton, has left some 2,000 people dead since anti-government protests began in March, does amount to a crime against humanity. This is contrary to Article 7 of the ICC Treaty, if multiple acts of murder or persecution are committed, pursuant to state policy, “as part of a widespread or systematic attack against any civilian population.” The deliberate decision to use tanks, machine guns, and snipers against unarmed crowds repeatedly over the last few months is clear evidence of exactly such a crime. But the question remains - is now the time for the Security Council to refer Bashar al-Assad and certain members of his family to the International Criminal Court?

Indicting Mr. Assad and his cohorts sends a powerful message - political leaders, elected or not, are not above the law and cannot act with impunity.

However, it is arguable, that now is not the right time for such a manoeuvre. The indictment against Libyan leader Col. Muammar Gaddafi has strengthened Gaddafi’s resolve to continue fighting NATO-backed rebels and to drive a hard bargain in talks aimed at ending the crisis in his country.

It has meant that NATO countries have been forced to drop their demand that Gaddafi leave Libya as part of any deal. The indictment means he has nowhere to go without running the risk of arrest and therefore little choice but to fight on in the absence of a deal that guarantees him immunity.

A decision to indict Assad may well be similarly counterproductive, as the priority has to be ending the violence in Syria as soon as possible. That is easier said than done and more blood is likely to flow before the situation in Syria is resolved.

This is not to say that Bashar al-Assad will not and should not face justice at some point, Stephen Rapp, the US ambassador in charge of investigating war crimes, in an interview with The Guardian last month stated that the killing of Syrian civilians demanding democracy is a "crime against humanity", however, as Rapp concedes, there is "not sufficient support in the UN security council even to get a motion denouncing it. But we are hopeful that as people see what's happening there will be greater need to have accountability." Some progress has been made in this regard - only days ago the Security Council condemned the widespread violation of human rights in Syria and the use of force against civilians by the country’s security forces, calling for an end to the violence and urging all sides to act with restraint and refrain from reprisals, including attacks against State institutions and calling for “those responsible for the violence should be held accountable”. However, as the brutality of the Syrian government’s crackdown on any form of dissent continues to unfold on news screens across the world on a daily basis, it is clear that urgent action is required, whether or not this should include an indictment at this stage is open to debate.

For more information:

http://www.guardian.co.uk/law/2011/jul/20/killing-syrian-civilians-crime

http://www.bbc.co.uk/news/world-middle-east-14417720

http://english.alarabiya.net/views/2011/08/01/160429.html

http://www.thedailybeast.com/articles/2011/05/10/syrias-war-crimes-put-bashar-al-assad-on-trial.html

Confirmation Hearings at the ICC - Paper Exercise or Substantial Contest?

An interesting Decision has been issued in the Ruto et al half of the Kenya case at the ICC. The Pre-Trial Chamber has restricted viva voce defence witnesses for the Confirmation Hearing to only two for each suspect.

The Prosecution has elected not to call any live witnesses for the Confirmation Hearing at all, and will be relying solely upon reports, media clips, summaries of witness statements and some fully written and signed witness statements, but will not be exposing any of his witness and materials to the crucible of live evidence or cross-examination. It will be a paper exercise for his case. The PTC does not seem to be concerned with that quality of evidence.

The Single Judge of PTC III has emphasised the limited scope and purpose of the Confirmation Hearing and the fact that it is not the full trial. Also of importance to her was the right for an expeditious trial of the defence. But how does two witnesses per suspect cover all issues raised against them?

How is a paper case a proper means to come to a decision that there are “substantial grounds to believe a suspect has committed an offence”? This is the test at the Confirmation Hearing stage to determine whether a case goes forward to trial or not.

Surely if the defence want to call more evidence to combat and challenge hearsay and supposition, why can’t they? It must be for them to decide which of their rights they wish to exercise and if it delays proceedings a while to properly decide the substantial grounds issue, that is a trumping right at that stage.

Or is it all just a paper exercise?

Decision Reducing VV witnesses CH

John Cammegh addresses the American Society of International Law on the Bangladesh ICT

John Cammegh addresses the American Society of International Law on the Bangladesh International CrimesTribunal.

This luncheon briefing focused on recent efforts to restart the forty-year-old effort in Bangladesh to bring to justice those responsible for war crimes, crimes against humanity, and genocide dating to the 1971 War of Liberation. Some commentators have welcomed the accountability effort as long overdue, while others have expressed concern that it does not meet current international standards of due process.

See John's address on the 9BRi YouTube Channel: http://www.youtube.com/watch?v=L9LZfzKbSuE&feature=feedfbc

For more info see the ASIL website: http://www.asil.org/activities_calendar.cfm?action=detail&rec=194

"The Bangladesh War Crimes Tribunal: Justice or Betrayal?"

John Cammegh has been invited to speak to an inter-collegiate audience at St Antony's College, Oxford in October 2011 on 'The Bangladesh War Crimes Tribunal: Justice or Betrayal?'.

More details to follow soon.

International Seminar on Independence of Judiciary and the Criminal Justice System of Bangladesh

Toby Cadman will be speaking at the International Seminar on Independence of Judiciary and the Criminal Justice System of Bangladesh to be held on 5th August 2011 at Hotel Purbani, Dhaka. Toby's presentation will focus on the role of the international community in ensuring proceedings before the International Crimes Tribunal in Bangladesh meet international standards.

For more info:
http://www.facebook.com/pages/Independence-of-Judiciary-and-the-Criminal-Justice-System-of-Bangladesh/101067513328117?sk=info

Lebanon: UK Tribunal identifies names of four men accused of Hariri murder

The press release for the 4 terrorist suspects in the Hariri assassination reveals that the confidentiality has been lifted in case any member of the public should see them and recognise them. This implies the attempts to trace them have failed and the measures taken now, if nothing else will alert them they are on the UNs most wanted list. So if they did not know before they know now!

LEBANON: UN TRIBUNAL IDENTIFIES NAMES OF FOUR MEN ACCUSED OF HARIRI MURDER
New York, Jul 29 2011 3:10PM
The United Nations-backed tribunal set up to try those alleged responsible for the 2005 assassination of former Lebanese prime minister Rafiq Hariri today released the identities of the four men accused of the crime.

Daniel Fransen, a pre-trial judge with the Special Tribunal for Lebanon (<"http://www.stl-tsl.org/action/home">STL), ordered the lifting of confidentiality on the full names, aliases, photographs, biographical information and charges against the men named in an indictment last month. Parts of the indictment remain confidential.

The four people named are Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi and Assad Hassan Sabra. All Lebanese, they are charged over the massive car bombing in central Beirut on 14 February 2005 that killed Mr. Hariri and 21 others.

Mr. Ayyash, 47, and Mr. Badreddine, 50, are each charged with homicide, attempted homicide, committing a terrorist act and conspiracy to commit a terrorist act.

Mr. Oneissi, 37, and Mr. Sabra, 34, face charges of conspiracy to commit a terrorist act, and being an accomplice to homicide and to attempted homicide.

In a statement Daniel Bellemare, the STL Prosecutor, said the release of the names and biographical information “has been taken to increase the likelihood of apprehending the accused in case any of them is seen by the public.”

International arrest warrants against the four men were issued on 8 July and Lebanese authorities have to report back by 11 August on the progress made in carrying out the arrest warrants.

A spokesperson for Secretary-General Ban Ki-moon said the UN chief reiterated his strong support for the STL in its efforts to uncover the truth of what happened on 14 February 2005 and to bring those responsible for justice.

“He calls on all States to support the independent judicial process, including by cooperating with the Special Tribunal in the execution of the indictment and arrest warrants,” the spokesperson said.

“The Secretary-General also reiterates his expectation that the new Government of Lebanon will uphold all of Lebanon’s international expectations, including its obligations to support and cooperate with the Special Tribunal.”

The STL is an independent court created at the request of the Lebanese Government, with a mandate issued by the Security Council. It is based in The Hague in the Netherlands.
Jul 29 2011 3:10PM
________________
For more details go to UN News Centre at http://www.un.org/news