Sudanese President Omar al Bashir is expected in Istanbul, Turkey, this Sunday and Monday for a summit of the Organization of the Islamic Conference (OIC). Back in March, the International Criminal Court indicted al Bashir on counts of war crimes and crimes against humanity, which means al Bashir is a fugitive from international justice and that no countries should willingly host al Bashir without taking steps to arrest him and surrender him to the ICC in The Hague.
President Omar al Bashir is a fugitive from international justice, charged with responsibility for crimes against humanity and war crimes against men, women and children, including murder, rape, torture and forced displacement. It would be a disgrace for Turkey to offer him safe haven – Christopher Keith Hall, Senior Legal Advisor, Amnesty International.
According to the BBC, Turkish President Abdullah Gul has no intention of arresting al Bashir, even though the European Union has asked him to reconsider his invitation to al Bashir. Turkey may not have signed or ratified the Rome Statute of the International Criminal Court, but it still has a duty under international law to arrest al Bashir and surrender him to the court in The Hague.
Since his indictment in March, al Bashir has visited seven countries: Eritrea, Egypt, Libya, Qatar, Saudi Arabia, Ethiopia and Zimbabwe. Due to pressure from the international community and civil society groups however, he was forced to cancel 2 recent trips to Uganda and Nigeria.
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Abu Omar was a victim of the extraordinary rendition program established by the Clinton administration and greatly expanded under President George W. Bush in the aftermath of the 9/11 attacks.
He was snatched off the street in Milan and flown secretly to Cairo where he was handed off to Egyptian security officials. Abu Omar was tortured extensively in Egyptian custody. He was finally released without charge in 2007.
The Italian decision is a graphic illustration of just how damaging practices such as kidnapping and torture are to America’s national security.
Armando Spataro, the deputy Milan public prosecutor, told reporters:
“This decision sends a clear message to all governments that even in the fight against terrorism you can’t forsake the basic rights of our democracies.”
Italy convicts Americans for C.I.A. renditions. BRENNAN LINSLEY/AFP/Getty Images
American courts and politicians have been reluctant to take a stand against the use of kidnapping and torture by American officials in the war on terror, but critics of those policies today received a stunning vote of support from an unexpected source – the Italian courts.
An Italian judge convicted a CIA station chief and 22 other Americans in the kidnapping of the 2003 Egyptian cleric from the streets of Milan. The cleric, Osama Moustafa Hassan Nasr, known as Abu Omar, was seized and rendered to Egypt where he was allegedly tortured and held in detention without trial before his release nearly four years later. Abu Omar said he was tortured while held in secret detention in Egypt and that methods included alternating extremes of temperature and electric shocks to the genitals. There was no indication that the allegations were the subject of any investigation by the Egyptian authorities.
Supporters of American renditions insist that the policy is limited to actions against the most dangerous of the dangerous, but in fact the American kidnapping thwarted an Italian investigation into the cleric that might have resulted in criminal charges and a fair trial. The fact that the Egyptians released the cleric after four years, despite that countries record of long-term administrative detention, simply underscores just how much of a loser the American policy is.
Justice Richard Goldstone, who gained respect internationally for his work in the UN International Criminal Tribunals for the former Yugoslavia and for Rwanda and his human rights work in Argentina, South Africa and Kosovo led an investigation into violations of international law committed by all parties involved in the fighting last winter in Gaza and southern Israel. The UN mandated investigation found that both Israeli forces and Palestinian armed groups committed grave violations of international law, including war crimes and possibly crimes against humanity, during the conflict. The report supports Amnesty International’s own findings of war crimes committed by both sides.
US made Hellfire missile manufactured in Orlando, FL used in incident where two Palestinian medics and a child were killed.
Remarks from the State Department and specifically Ambassador to the United Nations, Susan E. Rice do not bode well for the report’s reception in the Human Rights Council and the recommendation that the HR Council take concrete steps to move the process of accountability forward. Ambassador Rice has said she has ’serious concerns’ about the mission’s mandate and that it is imperative to not get distracted and look forward to resolve the conflict.
Amnesty International believes that justice and accountability can never be an impediment to peace, but are the foundation to an enduring peace in the region. And that the recommendations contained in the Goldstone report are the best hope for achieving justice for the victims and to end the atmosphere of impunity enjoyed by the perpetrators from both sides and help end the cycle of violence.
Justice Richard Goldstone is scheduled to present the findings of his team’s investigation Tuesday, September 29th to the Human Rights Council. The HR Council will then discuss the findings and has the ability to refer the report and its recommendations for consideration by the UN Security Council. The United States recently joined the HR Council and has the ability to sway the council one way or the other.
Amnesty International said yesterday that the recommendations of the United Nations Human Rights Council’s fact-finding mission on the Gaza conflict, if implemented, offer the best hope for justice and accountability. The UN-mandated report by Judge Richard Goldstone found that both Israeli forces and Palestinian armed groups committed grave violations of international law, including war crimes and possibly crimes against humanity, during the Gaza conflict this year.
The report supports Amnesty International’s own findings of war crimes committed by both sides.
Donatella Rovera, who headed Amnesty International’s fact finding mission last winter in Israel and the Gaza Strip, said:
“The UN Security Council and other UN bodies must now take the steps necessary to ensure that the victims receive the justice and reparation that is their due and that perpetrators don’t get away with murder. The responsibility now lies with the international community, notably the UN Security Council, as the UN’s most powerful body, to take decisive action to ensure accountability for the perpetrators and justice for the victims. The Security Council must refer the Goldstone findings to the International Criminal Court Prosecutor if Israel and Hamas do not carry out credible investigations within a set, limited period.”
Note: The United States holds the Presidency of the United Nations Security Council for the month of September.
Despite powerful evidence of war crimes and other serious violations of international law which emerged during and in the aftermath of the conflict, both Israel and Hamas have failed to carry out credible investigations and prosecute those responsible. The UN Security Council condemned attacks against civilians during the conflict and urged both sides to respect international law, but so far it has turned a blind eye to the allegations of war crimes and other grave violations committed by both sides.
The report’s findings are consistent with those of Amnesty International’s own field investigation into the 22-day conflict during which some 1,400 Palestinians and nine Israelis were killed (four other Israeli soldiers were killed by their own side in ‘friendly fire’ incidents).
Most of the Palestinians killed by Israeli forces were unarmed civilians, including some 300 children. Amnesty’s investigations also found Israeli forces carried out wanton and wholesale destruction in Gaza, leaving entire neighborhoods in ruin, and used Palestinians as human shields. Amnesty’s findings also agree with the Goldstone report in that the rocket fire into southern Israel by armed Palestinian groups, including Hamas, was indiscriminate which constitutes a war crime.
Key findings of the Goldstone report include:
• Israeli forces committed violations of human rights and international humanitarian law amounting to war crimes and some possibly amounting to crimes against humanity. Notably, investigations into numerous instances of lethal attacks on civilians and civilian objects revealed that the attacks were intentional, that some were launched with the intention of spreading terror among the civilian population and with no justifiable military objective and that Israeli forces used Palestinian civilians as human shields.
• Israeli forces committed grave breaches of the Fourth Geneva Convention, notably wilful killing, torture and inhumane treatment, wilfully causing great suffering or serious injury to body or health, and extensive destruction of property, not justified by military necessity and carried out unlawfully and wantonly. As grave breaches these acts give rise to individual criminal responsibility.
• Israel violated its duty to respect the right of Gaza’s population to an adequate standard of living, including access to adequate food, water and housing. Notably acts which deprive Palestinians in Gaza of their means of sustenance, employment, housing and water, that deny their freedom of movement and their right to leave and enter their own country, that limit their access to an effective remedy and could amount to persecution – a crime against humanity.
• Palestinian armed groups violated the principle of distinction by launching rocket and mortars attacks which cannot be aimed with sufficient precision at military targets and that their attacks into civilian areas which had no intended military target constituted deliberate attacks against civilians. Such attacks constitute war crimes and may amount to crimes against humanity.
• Palestinian combatants did not always adequately distinguish themselves from he civilian population and they unnecessarily exposed civilians to danger when they launched attacks close to civilian or protected buildings.
• The Fact-Finding Mission found no evidence that Palestinian armed groups directed civilians to areas where attacks were launched or that they forced civilians to remain within their vicinity, nor that hospital facilities were used by the Hamas de-facto administration or by Palestinian armed groups to shield military activities, or that ambulances were used to transport combatants, or that Palestinian armed groups engaged in combat activities from within hospitals or UN facilities that were used as shelters.
Zimbabwe Lawyers for Human Rights recently reported that President Mugabe did NOT sign the Global Political Agreement. Well, he signed half of it. The entire 36 page document was ratified into law by Parliament as Constitutional Amendment 19. President Mugabe, however, only signed an 18 page document. The result is potentially unenforceable as “It is impossible, legally, to have an act in two different versions-one version approved by Parliament, another by the President.” The missing pages included clauses governing the mandated Constitutional revision and referendum process. This means that the entire agreement can be declared null and void, or those pages not signed by the President are not enforceable.
The Global Political Agreement (GPA) is the result of negotiations that occurred after contested Presidential and Parliamentary elections in March 2008. Although now-Prime Minister Tsvangirai received the majority of votes, he purportedly did not receive the necessary 50% +1 required to win outright, forcing a run-off election. Tsvangirai subsequently withdrew from the run-off over concern for the extreme levels of violence that occurred, including deaths, disappearances and torture and Mugabe was declared the winner. The Southern African Development Committee (SADC) stepped in and negotiated a political settlement that became the GPA and is now the guarantor of this agreement.
ZANU-PF’s commitment to the GPA has been suspect from the beginning including refusing to cede control of the Attorney General office and Reserve Bank and chipping away at the Parliamentary majority position Prime Minister Tsvangirai’s party MDC-T secured in the 2008 elections through pressing criminal charges. Further, while levels of violence have abated, political violence is an on-going concern including the recent murder of an MDC activist.
The law is meant to define the parameters that regulate behavior and establish social control. It is not meant to be a blunt weapon of force to repress, dominate and terrorize citizens. Mugabe’s political party, ZANU-PF, consistently uses the law to manipulate and oppress from laws used to stifle dissent such as the Public Order and Security Act, to withdrawing from the SADC Tribunal, to entering the agreement with false intentions by building in an escape hatch.
ZANU-PF’s withdrawal from the SADC Tribunal and the failure to sign all pages of the GPA are essentially contract disputes and there is no applicable court to turn where a judge can decide which terms apply and should be enforced. Instead, the judge is SADC, who must remove the blinders of reverence towards a one time freedom fighter and see him as the leader of a party of freedom oppressors. SADC announced today it will convene an extraordinary summit in three weeks to address the outstanding issues surrounding the GPA and it MUST force a resolution on both these concerns.
The judge is also the international community, who bears the burden of standing strong in speaking out against the injustices occurring in Zimbabwe while still standing in solidarity with the people of Zimbabwe by providing appropriate humanitarian aid to repair the schools, hospitals, water treatment plants and sewer systems, electrical capacity and agricultural industry. Finally, the judge is us, who must continue to demand respect for the rule of law and insist on accountability and an end to impunity for those who use violence to retain power and control.
UPDATE, September 24, 2009
“SADC Executive Secretary Tomaz Salamao told VOA that Harare’s move to repudiate the tribunal has been referred to the ministers of justice of the regional bloc’s member nations who have been asked to provide legal guidance to SADC heads of state.”
I know, I know. “Not another rant about international courts and why they are so fantastic,” you say. Well, fooled you. I am not going to defend international tribunals as a concept or theory. It’s been done to death. However, I am asserting that if you are going to go through all the bother and effort of establishing an adjudicating body, setting up rules and procedures, selecting judges, hiring staff and building a brand spanking new courthouse, maybe you should first make sure the tribunal has the proper legal authority to try cases at all.
The Tribunal was established in 1992 as an institution of the Southern Africa Development Community’s (SADC) originating Treaty and was sworn in November 2005. It has jurisdiction over disputes between SADC States or disputes between persons and member States; but in order for a person to bring a case before the court, they have to have exhausted all legal options first in that State. Since the Tribunal received its first case in 2007, five suits have been filed; two contract claims against SADC, a contract claim against Zanzibar and two cases against the government of Zimbabwe.
And now we come to the crux of the issue. One case against Zimbabwe deals with demands for compensation for injuries suffered as a result of political violence and is still pending. The other case, Campbell v Republic of Zimbabwe, is a land seizure case decided in May 2008. The Tribunal determined that the plaintiff’s farms were illegally seized by the government and the plaintiffs were owed compensation. In the course of litigation, the plaintiffs were granted orders demanding that the government cease expulsions from the farms under litigation. Not only did the government of Zimbabwe not comply with the cease and desist order, it failed to comply with the final decision in Campbell. Now, Zimbabwe is saying that the tribunal has no force and refuses to recognize it as a legitimate body of legal authority. Thus, it can ignore decisions on any pending or decided cases.
SADC itself was established by an overarching treaty that contains language stating a tribunal will exist. The structure, rules etc of the Tribunal were then laid out by a Protocol to that Treaty. Zimbabwe’s argument hinges upon ratification of that Protocol; to enter into force, it required ratification by two-thirds of the SADC member States. Not only has Zimbabwe itself not ratified the Protocol, only five SADC members have ratified thus far.
The problem is contradictory language. Zimbabwe Human Rights NGO Forum argues the SADC Treaty states the tribunal is exempt from the requirement that all protocols be ratified by two-thirds of member States. Therefore, the Tribunal became a binding legal authority when the SADC Treaty was ratified. However, the Protocol itself states that it requires two-thirds ratification to take effect. Under international law, the Treaty should trump an underlying Protocol; getting that in writing is a different story.
So what are the options? SADC’s annual summit convenes this week. SADC can expel Zimbabwe for non-compliance, but if it wasn’t expelled following the election violence of last year it is unlikely to expel it for a breach of the SADC Treaty that is arguably not a breach at all. SADC can push for ratification at the Summit to close this loophole, however Zimbabwe can still say the Tribunal had no binding force until such time as the ratification process is complete and still claim cases decided prior to that time are nullified. If SADC does not ratify the Protocol, there is nowhere Mike Campbell or future potential plaintiffs seeking to sue any party at the Tribunal can turn to for redress as there is no higher applicable legal authority. The court for the African Union, the African Court on Human and People’s Rights is not functioning.
So what does all this mean? It means Campbell was awarded a hollow victory. It means one more instance where Zimbabwe eludes the rule of law, although this time its due to sloppy language creating a loophole large enough to drive a legal train wreck through. It means future litigants have no recourse. It means SADC needs to step up and get its act together. It means the SADC Tribunal is in the same league as the Inter-American Court of Human Rights, the ECOWAS Community Court, the International Criminal Court etc in struggling for legitimacy and compliance with its jurisprudence. On the other hand, the US Supreme Court had the same problem once upon a time and seems to do okay now. I always try to end on a glass half full note.
On a side note, the Campbell farm was burnt to the ground yesterday including crops and a linen factory, destroying the livelihoods and housing for over 60 people. An independent documentary, Mugabe and the White African, detailing the Campbell’s legal battle in the SADC tribunal is also showing in limited locations.
I’ve had the privilege of viewing and commenting on various stages of the film as it was being developed. It’s a great piece of work. With each viewing, something new strikes me. I wanted to share with you some of the themes in the film that resonate with me today.
First, The Reckoning builds to what feels like a “Law and Order: War Crimes”- style finale, with the Prosecutor and his team closing in on a target – a sitting head of state — considered by many to be out of reach. The crime thriller analogy is actually very appropriate, because some of the footage we see in the film is, when you think about it, crime scene footage. It’s easy to forget that. Mass rapes, murders, mutilations and starvation are often treated as the tragic and inevitable consequences of war, instead of as crimes which are planned — which actually require planning to implement on a mass scale — and for which specific individuals are responsible and can be held accountable.
Secondly, The Reckoning is very much a ”David and Goliath” story. Critics of the ICC’s work try to portray the Court as a big, Western-dominated bully out to get Africa. I think you will come away from The Reckoning struck by how small the Prosecutor’s team really is in comparison with the massive crimes they are confronting. I think you will also be struck by how relentless they are in pursuing justice for the victims, who they stress are the millions of Africans subjected to human rights abuses, instead of the few who try to obscure their culpability by hiding behind the mantle of nationalism.
Finally, The Reckoning tells the story of what is essentially an unfinished revolution. The film explores both the breakthroughs in the advancement of human rights and the rule of law that made the ICC possible, as well as the lack of political to make enforcement a reality. Former Nuremberg prosecutor (and one of my heroes) Benjamin Ferencz recalls how the entire body of human rights law that we take for granted today came to be in his lifetime, demonstrating how much is possible in what is essentially a blink of the eye in historical time. Yet most of the world’s governments – some of whose representatives we see celebrating the ICC treaty at the start of the film — continue to fail to give any meaningful support the ICC in apprehending indicted war criminals. We may still have a long way to go, but it’s possible to get there.
Do you remember when Pinochet was arrested in London? The news flew around the world. The Chilean dictator is now dead, but the victims of torture and their families and friends are still asking the government and the judiciary for the truth about what happened after the military coup in 1973.
At least 110 people were tortured on the training ship Esmeralda that arrived in Boston yesterday. One of them was my brother, Michael Woodward, a catholic priest who had dual nationality (Chilean and British), and who lived and worked with the poor in Valparaiso.
He was driven from his home by a naval patrol to a University which had been taken by the Navy and used as a detention and torture center. He was then fiercely tortured at the Naval War Academy. In a very critical state of health, Michael Woodward was taken to the Esmeralda, anchored in the port. He may well have died on the ship, or on the way to hospital or they might have shot him before leaving the Esmeralda. Information has recently come to light due to the efforts of judge Eliana Quezada who is investigating the law suit presented in 2002. To date 19 retired members of the Navy have been indicted.
The Esmeralda is the Chilean Navy’s four-masted training ship. It goes on a cruise every year to teach the young cadets the law of the sea. At every port it is greeted by the Chilean ambassador and naval and local authorities, before embarking on social, cultural, and sightseeing activities. The Chilean government openly considers it an “ambassador of all Chileans”. President Bachelet emphasized this when she said
farewell to the ship in Valparaiso on 15 March.
Those of us who are still struggling to see justice applied do not feel that the Esmeralda is our ambassador. The attitude of the Chilean Navy clashes with our ideals of human rights. The Navy, as an Institution, needs to take responsibility for the violations of human rights perpetrated.
- By Patricia Woodward, sister to Michael Woodward and Human Rights Activist
President Obama again displayed in his speech today on national security that he is an exceptionally gifted and thoughtful politician who cares about the rule of law. Indeed, there is much to admire in his remarks today. So I can’t help wondering why he is being so obtuse about investigating torture.
He says he wants to establish legal mechanisms for dealing with terrorists that will be useful for his successors. “We can leave behind a legacy that outlasts my Administration, and that endures for the next President and the President after that. . .”, the President said. Sadly, though, this vision of his legacy apparently does not include concrete measures to ensure that torture will never be carried out again by any of his successors, merely the hope that they will follow his example. That is where his refusal to carry out his legal obligation to investigate torture leaves us — merely hoping his successors will be wise.
The President continues to characterize those who press for an investigation as vengeful zealots uninterested in constructive problem-solving: “Already, we have seen how that kind of effort only leads those in Washington to different sides laying blame, and can distract us from focusing our time, our effort and our politics on the challenges of the future.” The truth is, however, that many in the human rights movement who are calling for an investigation have worked most of their lives for justice and accountability for human rights crimes in country after country — Chile, Argentina, Guatemala, Rwanda, Bosnia, Cambodia, and so many others. These are people whose purpose is the opposite of ”finger-pointing” for petty partisan aims.
In any event, it is not up to President Obama to decide all by himself how to prevent future abuses in combatting terrorism. We — the public, Congress, and officials in the executive branch — all share in the responsibility for this “mess”, as the President labelled it. We must seek solutions together, and an independent, impartial, nonpartisan commission of inquiry is the logical instrument through which we can begin to make this happen.
The weakness of the President’s argument against an investigation is made all the more stark by its contrast with the cogency of his arguments against torture and for closing Guantanamo. Moreover, his speech today marked yet another flip-flop in the reasons for his opposition. Just a month ago, he expressed his preference that, if there was going to be an investigation, it be conducted by an independent panel, outside the normal Congressional hearing process. He said that he worried about hearings becoming too partisan. Today, however, Mr. Obama said that he was opposed to an independent commission because he believes “our existing democratic institutions are strong enough to deliver accountability. The Congress can review abuses of our values, and there are ongoing inquiries by the Congress into matters like enhanced interrogation techniques. . .”
Well, which is it? Is the President now saying that balkanized investigations by Congressional committees controlled by Democrats are actually preferable to a truly independent investigation by experts who have no political agenda? I don’t see the logic in this view. The President prides himself on applying rational, common-sense approaches to problem solving. But rationality and common sense are lacking in his stubborn opposition to an impartial investigation. We need to figure out how to ensure future presidents won’t yield to the same cowardly impulses that defined the Bush administration’s resort to torture. Only a thorough, impartial probe of how it happened can lead to effective remedies for the future.
Amnesty International works to protect human rights worldwide. We have more than 2.2 million supporters, activists and volunteers in over 150 countries, and are completely independent from government, corporate or national interests.
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Sarnata Reynolds is the Refugee Program Director at Amnesty International USA where she promotes the enforcement of international human rights standards pertaining to refugees, asylum seekers, and migrants. See all »
