On International Justice Day, An Inconvenient Truth

Sudan's President Omar al-Bashir takes part in the African Union Summit on health focusing on HIV/AIDS, TB and malaria. Nigeria's president defended welcoming Sudan President Omar al-Bashir to the African Union health summit despite war crimes charges against him, saying it could not interfere in AU affairs.     (Photo Credit: Pius Utomi Ekpei/AFP/Getty Images).

Nigeria’s president defended welcoming Sudan President Omar al-Bashir to an African Union health summit this week despite war crimes charges against him, saying it could not interfere in AU affairs. (Photo Credit: Pius Utomi Ekpei/AFP/Getty Images).

Just as storms overwhelm unattended levees, political strife and armed conflict can overwhelm the system of international law created to ensure we do not repeat the darkest periods of human history. Today marks the 15th anniversary of the adoption of the Rome Statue, which established the International Criminal Court to secure accountability for war crimes, crimes against humanity and genocide. This week also brings continued news of the terrible price paid by civilians as a result of such grievous crimes in Syria, Sudan and elsewhere.

Millions have been victims of these crimes in recent history, yet only very rarely have those responsible been held accountable. In the last two decades, however, progress has been made towards reversing this trend of impunity. With the establishment of the International Criminal Court, a clear message was sent around the world that failure to investigate and prosecute such crimes at the national level will not be tolerated.

Yet, every hopeful step is met with new and compelling challenges. Political alliances sometimes supersede international legal and moral obligations, shielding fugitives such as Omar al-Bashir, the sitting president of Sudan, for example, from appearing before a court of law to answer for their alleged crimes. Impunity for grave crimes robs those victimized of justice, and prevents communities and whole countries from recovering from trauma.

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#Kony2012 and the Warping Logic of Atrocity

Joseph Kony Uganda LRA

Joseph Kony (STUART PRICE/AFP/Getty Images)

In the past 48 hours, there has been a flood of criticism of Invisible Children’s #Kony2012 campaign—much of it fair, some of it less so.

My first exposure to IC’s work was some time ago when—with Resolve—they launched the LRA Crisis Tracker. In stark contrast to the criticisms of implicit disempowerment of affected people by the Kony2012 campaign, this tool empowers communities through radio and digital communications to effectively form an overlapping system of neighborhood watch in LRA-affected areas. It is—in short—good work, and represents the promise of access to the benefits of science and technology, whether for underprivileged people in the US, or communities facing security threats in Uganda and elsewhere.

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Sri Lankan Report Doesn't Fully Address War Crimes

Displaced Sri Lankan Tamil civilians.

I’ve been waiting for months for the final report from Sri Lanka’s Lessons Learnt and Reconciliation Commission (often referred to as the “LLRC”).  The commission had been appointed by President Rajapaksa in May 2010 to examine events during the last seven years of the war between the government and the Tamil Tigers (the war ended in May 2009 with the government’s victory over the Tigers).

The Sri Lankan government has used the existence of the commission to say that an international investigation into war crimes and other human rights abuses committed by both sides during the war in Sri Lanka wasn’t needed.  On Dec. 16, the Sri Lankan government released the LLRC’s final report.  I have to say that I’m disappointed with the report.

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13 Years of International Justice

Today we celebrate International Justice Day.

13 years ago, on July 17, 1998 2002, the Rome Statute came into effect, enabling the creation of the International Criminal Court. A few years later, signers of the Statute designated July 17 as International Justice Day, a day to all come together and celebrate the advances made in international justice – and reflect on ways in which we can strengthen the system and ensure no crimes are left unpunished.

Today, 116 countries have ratified the Rome Statute and are members of the ICC.  To date, three states – Uganda, the Democratic Republic of the Congo and the Central African Republic – have referred situations in their countries to the Court, the Prosecutor of the ICC has initiated an investigation in Kenya, and the UN Security Council has referred the situations in Darfur, Sudan and Libya to the Court.  The Prosecutor is also in the process of conducting preliminary investigations in several countries, including Colombia and Cote d’Ivoire.

Meanwhile, trials are winding down at the Special Court for Sierra Leone, which is expected to render a verdict in the Charles Taylor case in the next few months, the International Criminal Tribunals for Rwanda and the former Yugoslavia, which are expected to wind down in 2012 and 2013 respectively . SEE THE REST OF THIS POST

Sri Lanka's Killing Fields

Sri Lanka

Civilians, in between Kilinochchi and Mulathiv, Sri Lanka, May 2009, during the last few months of the war. (c) Private

Last night, I watched a harrowing new documentary, “Sri Lanka’s Killing Fields,” by Channel 4, a British media company, about the final months of the civil war in Sri Lanka in 2009.

The 49-minute film depicts the massive human rights abuses and violations of the laws of war committed by both the Sri Lankan government forces and the separatist Tamil Tiger rebels.  The film is available online at Channel 4′s website until June 21.

Please note:  some of the scenes in the film are very disturbing.  It is NOT for younger viewers.

The film includes an extended version of the “execution video” released in 2009, in which naked prisoners are shown being shot in the head.  There are scenes of dead female Tamil Tigers who appear to have been raped and murdered.

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Hope for Justice in Cote d'Ivoire?

New Amnesty report on Cote d'Ivoire

Between the months of January and April of this year, Amnesty International researchers spent more than two months in Côte d’Ivoire investigating and documenting the human rights abuses that have occurred since the November run-off election for the Presidency.

The result of their work is a report, released today, which outlines grave crimes committed by parties on both sides of the political contest, and continued violence associated with communal conflict in the west.

After what was widely recognized as a free and fair election in November, Alassane Ouattara was pronounced the new president, defeating incumbent Laurent Gbagbo, who refused to step aside. Between December and April, military troops and militias loyal to each politician fought intensely for control of the country, leading to Gbagbo’s arrest on April 11 and Ouattara’s ascension to the presidency.

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SADC Tribunal Struggles for Legitimacy

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.