Press Release: Organization of International War Crimes Prosecutors Posthumously Awards Sergei Magnitsky with the 2015 Joshua Heintz Humanitarian Award

Press Release

For Immediate Distribution

 

31 August 2015 – One of the world’s most prestigious individual achievement prizes, the Joshua Heintz Humanitarian Award for distinguished service to mankind and achievement in the field of international justice, has been awarded posthumously to Sergei Magnitsky.

The award was presented at the International Humanitarian Dialogs, an annual assembly of current and former prosecutors at international war crimes tribunals and renowned academics and law experts. The event took place at the Chautauqua Institution’s Jackson Center.

On Sergei Magnitsky’s behalf the award was accepted by his family members, including his mother, wife and son.

Speaking at the award ceremony, Magnitsky’s mother Natalia said:

“I wish to express sincere gratitude to all the people in the world who are supporting us and our cause. All the attention paid to my son’s ultimate sacrifice will hopefully help and save lives of others in the future so they don’t have to suffer the same fate as Sergei.”

Bill Browder, the global leader of the Magnitsky Justice campaign and author of the best-selling book, ‘Red Notice’, commented on the importance of the international award to Sergei Magnitsky:

“I am inspired to see that Sergei Magnitsky’s bravery is recognized by the brightest minds whose job it is and has been to prosecute and confront the most heinous violators of human rights in this world. It is gratifying that Sergei’s legacy lives on in people’s hearts more than five years since his brutal killing in Russian police custody. May this serve as a reminder of both the sacrifice that Sergei made for a more just world, and the steps that still need to be taken before Sergei’s own perpetrators can be brought to justice.”

Sergei Magnitsky was a Russian lawyer who uncovered the $230 million corruption scheme involving Russian officials and an organized crime gang. He was arrested on trumped-up charges and killed in pre-trial detention in Russia in 2009 after testifying against the officials involved. Sergei Magnitsky’s name has become synonymous with the lack of rule of law in Russia. His case has lead to the adoption of the 2012 Sergei Magnitsky Rule of Law Accountability Act in the United States  imposing targeted personal sanctions on those involved in his torture and death and other documented cases of corruption and gross human rights abuse.  The sanctions include ban on entry visas and asset freezes.

The first recipient of the Joshua Heintz Humanitarian Award was Whitney Robson Harris, the US prosecutor at the Nuremberg Trials who led the team’s case against Ernst Kaltenbrunner, the highest-ranking leader of the Nazi Security Police to face trial for war crimes and crimes against humanity.

The extraordinary story of how Sergei Magnitsky stood up to corrupt Russian officials and paid the ultimate price for his ideals is described in Bill Browder’s book, ‘Red Notice’ released earlier this year to a world-wide acclaim.

 

For more information, please contact:

Magnitsky Justice Campaign

+44 2074401777

info@lawandorderinrussia.org

www.lawandorderinrussia.org

Ben B. Ferencz: Illegal Armed Force as a Crime Against Humanity

By Benjamin B. Ferencz

 

ABSTRACT:

 

At the Nuremberg Trials in 1946, the waging of aggressive war was indelibly branded as “the supreme international crime,” The United Nations affirmed the Nuremberg principles and UN committees began creating a new International Criminal Court (ICC) to help maintain future peace. Half a century later, in 1998, in Rome, an enabling statute for an ICC was overwhelmingly acclaimed by 120 nations. After speedy ratification, the Court became operational in 2002. It was authorized to deal only with genocide, crimes against humanity, war crimes and the crime of aggression. However, several major powers were not prepared to accept any international judicial review of their perceived sovereign right to wage war; the same hesitations still prevailed at an amendment conference in Kampala, Uganda in 2010. Although aggression was re-defined by consensus, jurisdiction by the ICC was again postponed for consideration at some later date after 2017. The crime of aggression still hangs in legal limbo. There is a dangerous gap in the law.

Deterrence is the primary goal. If no court is competent to try aggressors, the crime is more likely to be encouraged than deterred. This paper seeks to narrow the immunity gap by suggesting a practical legal solution to discourage aggressive wars. Legal quibbling encourages evasions. Illegal use of armed force should be punishable as “other inhumane acts” within the meaning of the ICC prohibition of crimes against humanity. After considering the views of respected military commanders, distinguished academicians and noted human rights advocates, this paper concludes that those leaders who, without lawful justification and with the requisite knowledge and intent, are responsible for foreseeable large scale civilian casualties, should be accused of crimes against humanity and held accountable by fair trial in a competent national or international court of law.

 

From Nuremberg to Kampala

 

The history of humankind has been the history of wars. The father of international law, Hugo Grotius, had called for humane conduct even in warfare “lest by imitating wild beasts too much we forget to be human.” [2] Following the devastating U.S. civil war, Francis Lieber’s code set forth humanitarian Rules for the Governance of Armies in the Field. [3] At The Hague in 1899, delegates adopted the famous Martens Declaration that “belligerents remain under the protection of the law of nations as they result from the usages established among civilized peoples, from the law of humanity and the dictates of the public conscience.” [4] The Commission on Responsibilities for World War I concluded that those who violated “the laws of humanity” were “liable to criminal prosecution.” [5] Rules outlawing the inevitable atrocities of war almost invariably contained exceptions in case of “military necessity” or “national interests” but the “laws of humanity” became an accepted minimum standard of binding customary international law.

 

In 1945, following the horrors of World War II, the International Military Tribunal (IMT) at Nuremberg, together with the United Nations, sounded a wake-up call. New thinking and new institutions would be needed, as stated in the preamble to the U.N. Charter, “to save succeeding generations from the scourge of war.” [6] The Charter clearly prohibited the threat or use of armed force except in self-defense against an armed attack or after authorization by the Security Council. [7] U.S. Supreme Court Justice Robert Jackson, America’s most distinguished jurist, served as Prosecutor for the United States at the IMT. He reported to the President that the American legal position “would be based on the common sense of justice…. We must not permit it to be complicated by sterile legalisms developed in the age of imperialism to make war respectable.” [8] The IMT declared: “This law is not static but by continual adaptation follows the needs of a changing world.” [9]

 

IMT jurisdiction was based on existing customary international law and treaties which condemned Crimes Against Peace, War Crimes and Crimes Against Humanity, such as murder, extermination, and “other inhumane acts committed against any civilian population.” [10] General Telford Taylor (later a professor at Columbia University), who directed a dozen subsequent trials at Nuremberg, following the IMT, concluded, in a prescient speech in Paris in April, 1947: “If the trials in Nurnberg . . . can help to expand and refine the legal principles of crimes against humanity, and if the nations of the world can establish a permanent jurisdiction for their punishment based on practical, enforceable and enlightened principles, we will indeed have reached a turning point in the history of international law.” [11]

 

Expanding and refining legal principles of crimes against humanity was not something that could be accomplished quickly or easily. Universal declarations of human rights and humanitarian proclamations have multiplied over the years but enforcement of the noble goals has been very slow in coming. Perpetrators of crimes in armed conflicts insist that their deeds were all necessary and justifiable; victims claim just the opposite. If such disputes cannot be resolved by peaceful means, and there is no impartial court competent to render a binding judgment, violence is unavoidable. Yet, we may be approaching a turning point as we peruse recent milestones that mark the progress in protecting humanity through law.

 

The 1948 General Assembly Universal Declaration of Human Rights proclaimed the inalienable right of all members of the human family to “freedom, justice and peace in the world.” [12] “Life, liberty and security of persons” was fundamental. [13] Another Resolution, in 1984, proclaimed that “the peoples of our planet have a sacred right to peace.” [14] In the 1990’s the UN Security Council created temporary courts to punish genocide and “other inhumane acts” committed in Rwanda and Yugoslavia. Yet, some powerful governments that supported the human rights system when it applied to others were unwilling to subject their own conduct to legal scrutiny. Despite such vacillation, the gradual movement toward a more humane world order protected by law was unmistakable. There has been a slow awakening of the human conscience.

 

In 1998, nations meeting in Rome adopted a Statute for an International Criminal Court (ICC) based on the Nuremberg precedents. The treaty establishing the Court received the required 60 ratifications and became operational for over 70 countries in July 2002. Ten years later the number of accepting State Parties had reached 121. With the creation of the ICC, for the first time in human history, a permanent international criminal court came into existence. Only four core crimes “of concern to the international community as a whole” came within the jurisdiction of the Court: genocide, crimes against humanity, war crimes and the crime of aggression.

 

Major powers were still opposed, as they had always been, to having any foreign court adjudicate the legality of their military actions. They balked at allowing the ICC to try aggressors. Small states insisted that without being able to punish aggression – “the mother of all crimes” – the ICC would be a farce. As a compromise, aggression was recognized as a crime, but the ICC was prohibited from dealing with it until certain additional restrictive conditions were met. What was demanded was an acceptable new definition of aggression and assurances that Security Council powers would not be diminished. No one seemed to notice, or wanted to notice, that in 1974, after years of negotiation, a consensus definition of aggression had already been reached and accepted by the UN General Assembly (GA Res. 3314). [15] In any event, the impasse in Rome regarding the crime of aggression was bridged by postponing further consideration pending a Review Conference intended to be convened seven years later.

 

In June 2010, the promised Review Conference was finally held in Kampala, Uganda. The participants seemed to acknowledge at the outset that decisions would be reached only by consensus. “Consensus,” of course, meant that everyone had a veto right about everything. Under such restraints it would be exceedingly difficult to reach clear meetings of the mind on any important matters of substance. Nevertheless, a revised consensus definition of aggression was finally reached that was largely based on the 1974 consensus. [16] Its most significant change was that the aggression had to be a “manifest” violation of the UN Charter. [17] What actually was meant by “manifest” remained uncertain. Still, no longer could the convenient but spurious argument be made that aggression could not be prosecuted because it had not been defined.

 

Yet, once again, as had been done in Rome, under pressure from powerful states, giving the ICC active jurisdiction over the crime of aggression was not accepted. As a compromise, it was agreed to postpone the issue for reconsideration at some unspecified future date after 2017. It was an echo of the lame historical excuse: “the time is not yet ripe.” Thus, malevolent leaders responsible for what the IMT called “the supreme international crime” still remained beyond the ICC’s reach. If illegal war-makers were to be deterred by the threat of punishment by a court applying “enlightened and enforceable principles”, new ways had to be found to end the existing immunities.

 

Protecting Human Rights Through Law

 

“Enlightenment” begins with the recognition of the need for change. One of the primary objections to accepting new international rules to govern national conduct was the misguided complaint: “Our sovereignty is at stake!” For thousands of years, war was the accepted path to conquests, riches, and glory. Centuries ago, Thucydides articulated the oft-quoted observation: “We know as practical men that the question of justice arises only between those equal in strength, and that the strong do what they can, and the weak submit.” [18]

 

Power was decisive. International law did not exist.

 

The treaties of Westphalia in 1648 ended 30 years of religious conflict in Europe by creating a regional system of sovereign States in which a monarch reigned supreme only within his realm. Conquest by combat remained legitimate. This condition persisted even up to the formation of the League of Nations, which recognized war-making as lawful – as long as the enemy was given three months’ notice. [19]

 

The Nuremberg principles sought to substitute a rule of enforceable humanitarian law to replace the horrors of armed conflict. Those who stubbornly refused to be bound by new international rules failed to recognize that, in today’s interdependent and increasingly democratic world, sovereignty belongs not to a monarch who is above the law but to the people. The notion of absolute sovereignty is absolutely obsolete.

 

Enlightened military leaders who experienced armed combat learned the hard way that law is always better than war. When Dwight D. Eisenhower, who had been Supreme Commander of the victorious allied forces in World War II, became President of the United States, he made an important speech in which he said: “In a very real sense the world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law.” [20] He was echoing General Douglas MacArthur, Commander in the Far East, who, in 1946, praised the new constitution of Japan, in which the Japanese people forever renounced war as a sovereign right.

 

MacArthur, a great war hero, called for universal renunciation of armed might. He pointed to modern science and warned that failure to unshackle ourselves from the past “may blast mankind to perdition.” [21] Recently retired Chairman of the US Joint Chiefs of Staff, Admiral Mike Mullen, has repeatedly declared that he would rather prevent or deter a war than fight one. [22] It should be noted that prohibiting the illegal use of armed force is designed to protect military as well as civilian victims.

 

Many of our most far-sighted international legal scholars, such as revered Professors Hersch Lauterpacht [23], Myres McDougal [24] and his protégé, Michael Reisman [25] recognized that the human rights of the individual can best be protected by an expansive and not restrictive characterization of prohibited behavior and that we should look to the future, and not to the past, in developing norms of acceptable conduct. With respect to crimes against humanity, the highly esteemed Prof. Cherif Bassiouni has observed that “the purpose of the prohibition is to protect against victimization irrespective of any legal characterization or the context in which it occurs.” [26] In his recent book “Unimaginable Atrocities,” Prof. William Schabas recognized that taking the Nuremberg principles forward is “the mission of international justice, as well as international human rights, as a civilizer not only of individuals but also of nations.” [27]

 

Countless non-governmental organizations and official UN agencies have recognized the need for improved protection of humanity through law. In the absence of competent courts and political will by world leaders, the right to peace proclaimed in a wide variety of resolutions remained little more than an articulated but unenforceable aspiration. Declaring the law is one thing; respecting or enforcing it is another. The evolution of international law had not yet reached the point where institutions or means were available for effective peaceful enforcement of the rule of rule of law. [28] The existence of the ICC, with its legally binding statute that required all parties to the treaty to honor their obligations, held forth the implied promise that the future would be better than the past. Hope, however, does not become reality without sustained efforts to persuade the sceptics.

 

As a first step, all States Parties to the Rome Statute who were present in Kampala should now ratify the amendments on aggression, including the negotiated understandings agreed to by consensus in 2010. [29] Failure to provide the necessary [30] ratifications would undermine the utility and integrity of the entire Kampala effort. Those States Parties that accepted and ratified the Rome Statute are already legally bound by that treaty to assume primary responsibility for supporting the ICC goals and mandates. If they fail to ratify their own Kampala consensus, they foul their own nest.

 

Professor Otto Triffterer of the University of Salzburg, one of the earliest champions of an international criminal court, in his latest comprehensive commentary drew attention to the Rome Statute’s preambular mandate stressing “the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes.” [30] The statute’s preamble similarly speaks of punishment “at the national level and by enhancing international cooperation” and emphasizes that the ICC is “complementary to national criminal jurisdictions.” [31] This principle of “complementarity” meant that it was only when domestic courts were unwilling or unable to provide a fair trial that ICC intervention was appropriate. Of course, it made good sense to rely first on local courts where victims could see that justice was being done, evidence was more readily attainable, and costs would be limited. To be sure, the Security Council, as provided in the Charter and the Rome Statute, can always intervene in the interest of world peace. [32]

 

It is particularly notable that States can trump and bypass ICC powers by enacting their own local laws authorizing their own courts to try any of the ICC crimes. Leaders who violate international criminal should have to answer to their own courts and their own citizens. If that is not possible or feasible, those responsible for massive killings should not expect the world to turn a blind eye to their crimes, but should expect that in the final analysis justice will be done by the ICC.

 

The Primacy of National Courts

 

Addressing the Assembly of State Parties on 12 Dec. 2011, the highly respected United Nations High Commissioner for Human Rights, Navi Pillay, called on nations to fulfill their obligations by enacting comprehensive legislation incorporating the Rome Statute into their domestic criminal codes. She called upon the Assembly to work “toward ending impunity for gross human rights violations that amount to the worst crimes.” [33] She was right to note that the primary objective “is not to bring as many perpetrators as possible before the ICC, but to get states to diligently implement their obligation to prosecute international crimes.” [34] In reviewing the work of the ICC on its tenth anniversary, the President of the Court, Judge Sang-Hyun Song, correctly observed that “the most important aspect of the fight against impunity takes place in each country, society and community around the globe. Domestic justice systems must be strong enough to be able to act as the primary deterrent worldwide…” [35]

 

The Human Rights Council Advisory Committee on the right of peoples to peace has recently similarly emphasized that there is a universal right for all peoples to be free from the use of force in international affairs, and that states should do their part in advancing such rights. [36] The net by which perpetrators of international crimes may be apprehended and brought to justice is still under construction. Yet, if enough states carry out their acknowledged primary responsibility to enforce the rule of law, those leaders responsible for massive human rights violations will eventually be left with no place to hide.

 

What is needed now is new national criminal legislation to put perpetrators of human rights violations on notice that their evil deeds will no longer be tolerated. As far as punishing the crime of aggression is concerned, the lock will unfortunately remain on the closed ICC door until some unpredictable date after 2017 – at the earliest. Still, it may be possible for the essence of the egregious offense to make its way into national criminal jurisdictions of peace-loving nations. It should be noted that national laws to protect the right to life and other peaceful humanitarian goals do not require Security Council approval.

 

It is, of course, inevitable that on such difficult problems as war and peace there will be differences of opinion. Those powerful states that prefer to rely on their own unrestrained military might remain free to go their own ways. As long as such differences are dealt with by peaceful means they deserve respect. But the use of armed force, particularly against innocent civilians, should not be tolerated. If the Security Council fails in its duty to maintain peace, other lawful means must be found to protect innocent victims and end the outrage that leaders responsible for the most atrocious crime of illegal war-making remain immune. Recent experience has shown that when illegal violence becomes unbearable, tyrants may be toppled by the awakened und unrestrained outrage in the court of public opinion; surely, a peaceful legal resolution of such conflicts would be more humane and in everyone’s interest.

 

Although uniformity is desirable, different countries have differing legal systems, and different terminology may be needed to enable national codes to curtail the illegal use of force. If the term “aggression” seems too politically sensitive, States should consider criminalizing the offense under a more general description. “The illegal use of force” should be recognized and condemned as a “crime against humanity.” Of course it would have to be more explicitly defined and explained, but it might induce militant extremist groups or states to pause or desist from causing great suffering to large numbers of blameless victims.

 

Even powerful countries may come to see the value of restraining their own military might. The post-war constitutions of Japan and Germany, for example, contain provisions recognizing that aggression is a crime and curtailing their own right to use armed force except in self-defense. [37]

 

Many other states condemn various human rights violations such as genocide, apartheid, torture and other crimes against humanity as punishable in their national courts because they are recognized as customary international law that should bind all countries. Other states do not recognize customary international law unless specifically adopted in their own legislation. [38] The humanization of man’s most inhumane activity must be an ongoing process in the interest of our common humanity.

 

To be sure, many smaller states may need help in adapting their local laws to meet contemporary needs or threats. The ICC should, as a form of “positive complementarity,” assist States to close the impunity gap that now exists for crimes that were universally outlawed at Nuremberg. They should let it be known that if nations fail in their duty to protect their own citizens from slaughter, the responsible leaders may be brought to The Hague to face trial for their inhumane acts. Similarly, NGO’s and other supporting institutions can play a valuable role with respect to informing and galvanizing support from the general public and sympathetic legislators. The goal should be to include in national criminal codes all of the crimes that were punishable in Nuremberg and are listed as crimes by the ICC and other new international courts. Humanitarian law enforcement begins at home.

 

Some Practical Suggestions

 

The Rome Statute that binds the ICC spells out the parameters of all of the crimes within its own current jurisdiction. Enumeration of certain actions as “crimes against humanity” in the ICC statute and similar codes was never intended to be exhaustive or exclusive. Crimes which were separately categorized as “genocide” and “aggression” were being dealt with by special UN committees, but such separate crimes could very well have fit within the broader categorization of “crimes against humanity”. The ICC statute includes, by way of example, acts which qualify as crimes against humanity: murder, enslavement, apartheid, rape, torture, and half a dozen similar outrages. The final enumeration of offending types of conduct also condemned a catch-all category: “other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health.” [39] This provision is consistent with the IMT language and with the statutes and jurisprudence of the ad hoc tribunals which have been set up by the Security Council.

 

The precise character of “other inhumane acts” as crimes against humanity was left to interpretation by courts and judges. The door was deliberately left open to possible inclusion of other unforeseeable major inhumanities that might otherwise have escaped judicial scrutiny. Nuremberg correctly condemned aggression as “the supreme international crime” because it included all the other crimes. [40] Even if the appellation “aggression” is not used, the consequences of the illegal use of armed force may be equally reprehensible and should not be allowed to escape criminalization because of nomenclature.

 

It may be useful, therefore, to consider a draft of a model code or template to help define the conditions under which an illegal use of force may come within the purview of Crimes Against Humanity, possibly as a category of crime included within “other inhumane acts.” In essence, what is required is national legislation along the following lines:

 

“Any person responsible for the illegal use of armed force in violation of the United Nations Charter, which unavoidably and inevitably results in the death of large numbers of civilians, is subject to punishment for crimes against humanity.”

 

Limiting the crime to persons responsible implies a leadership position. What is illegal is made plain by the UN Charter itself: there is an inherent right to individual or collective self-defense against an armed attack (Art. 51), and, of course, the Security Council can authorize any measures to maintain peace (Art. 42). If those conditions do not exist, the use of armed force is illegal.

 

It should be noted that those who undertake legally authorized armed force fall into a different category altogether. The legitimate use of armed might is permissible so long as such force is applied in a manner proportional to the harm sought to be redressed and consistent with established rules of armed conflict. It is the illegality of the use of force that gives rise to a crime against humanity because it shocks the human conscience by violating fundamental norms of permissible human behavior.

 

Of course, all of the safeguards of due process and fair trial must apply to both national and international courts. The ICC, for example, can only consider “crimes of concern to the international community as a whole.” It must be shown that the crime against humanity was part of a widespread or systematic attack against any civilian population, with knowledge of the attack. The Prosecutor must prove that the accused meant to cause the consequences “or is aware that it will occur in the ordinary course of events.” (Art. 30). The judges and the Prosecutor must take into account the gravity of the crime and whether the prosecution would serve the interests of justice. (Art. 53). The law must be strictly construed and not extended by analogy. It will be up to the judges rather than the protagonists to decide whether the specific deeds are “other inhumane acts” as contemplated by the law.

 

With such a wide array of safeguards, leaders who do not plan to use armed force illegally need not fear their national courts or the ICC. They should welcome this extension of international law as a protective shield for themselves and their citizens. True, national courts are not likely to bring charges against their own tyrannical leaders. But changes in regime are not uncommon and an independent and transparent judiciary may offer justice instead of vengeance.

 

The international community, frustrated by political inability to use authorized armed force, has heralded a new justification under the guise of a “responsibility to protect.” But one should never forget that lawful goals should not be pursued by unlawful means. Humanitarian intervention must not be a cloak for concealed political objectives. The use of armed might can only be legitimate under circumstances permitted by the U.N. Charter. The determination of whether armed force is lawful or criminal cannot be left to the self-serving and biased protagonists or their allies. ICC prosecutors and judges are required by law to take account of all relevant circumstances, including mitigating factors, in order to serve the interests of justice. A fair and transparent judicial decision by judges of mixed gender and varied nationalities, applying humanitarian rules of law remains the safest path to peace.

 

ICC rules of procedure and decisions by the specialized tribunals created by the Security Council to penalize the horrors committed in this century are creating valuable jurisprudence by which the legality of human inhumanity can be judged. If even one murder can qualify as a crime against humanity, surely maiming and killing thousands of innocents should also be recognized as a punishable crime by competent national, regional or international tribunals.

 

No one can expect all crimes to be eliminated simply by making them punishable locally or internationally. As wisely stated by Professor Theodor Meron, an internationally esteemed legal scholar and currently the President of the International Criminal Tribunal for the Former Yugoslavia, “To genuinely humanize humanitarian law, it would be necessary to put an end to all kinds of armed conflict.” [41] Of course, he’s right. Furthermore, a vast matrix of social improvements is also required. The threat of punishment, however, certainly has some deterrent effect. A guarantee that the offender cannot or will not be tried can only encourage more criminality. If the illegal use of armed might can be deterred, even to a slight extent, the effort to save human lives and treasure is surely worthwhile.

 

Concluding Thoughts

 

Internal and external wars that brutalize human beings continue to deface the human landscape. New technologies enhance man’s capacity to kill his fellow humans. The threat to humanity posed by the illegal use of armed force by nations and militant groups increases daily. Having invented the means for destruction of all life, it is difficult to believe that we lack the intelligence and capacity to prevent it from happening. Of course, there are those who still believe, as Thucydides did, that wars are inevitable and people will act only to protect their own interests. Yet, in today’s inter-dependent and potentially life-ending world, is it not in the interest of all nations to do what they can to deter war? The notion that war is an immutable manifestation of some Divine providence simply cannot stand the light of intelligent, informed analysis. War is never Divine; in fact, war is hell. The willingness among some to accept violence as the final arbiter of disputes has given us the world of terror, genocide, mass killings of children, and similar atrocities that raise doubts about whether humans are really human.

 

In his farewell address in 1961, U.S. President Eisenhower warned about the power of a self-serving military-industrial complex that could only be controlled by “an alert and knowledgeable citizenry.” [42] An ideology cannot be killed by a gun. It requires a more acceptable ideology. The logic of armed might breeds crime. Every war makes murderers out of otherwise decent men. Whether they are nations or armed bands, militants must learn to resolve their differences without having to kill their adversaries and their neighbors. The rule of law, nationally and internationally, points the way toward a more humane world. Failure to enforce the law undermines law itself.

 

Skepticism is understandable, but if change is desired, inaction is intolerable. When the Statute for the International Criminal Court emerged from the negotiations at Rome, U.N. Secretary General, Kofi Annan, called it “The hope of future generations.” [43] Legislators, diplomats, students, teachers, religious leaders, non-governmental organizations and every segment of society must be alerted to the vital importance of developing national and international criminal law to help protect the basic human rights of people everywhere. There is nothing more important than the right to life. Putting Nuremberg defendants on trial, as Justice Jackson noted in his brilliant opening statement in 1945, was “one of the most

significant tributes that Power has ever paid to Reason.” [44] Failure to recognize that illegal war-making is a punishable crime against humanity repudiates Nuremberg and would be a

tragic triumph of Power over Reason. “Law, not war” remains my slogan and my hope.

 

August 22, 2012

 

Endnotes

 

1 Editor’s Note: The author is the former Nuremberg Chief Prosecutor of the Einsatzgruppen Case, in which 22 high-ranking Nazis were convicted of slaughtering of over a million innocent men, women, and children. In his opening statement to the Court, he declared, “The case we present is a plea of humanity to law.” (Original video footage is available online at http://www.ushmm.org/wlc/en/media_fi.php?ModuleId=10007080&MediaId=184). He has been an active advocate for the rule of law throughout his career and a comprehensive selection of his writings, essays, and lectures may be accessed online at www.benferencz.org. He was assisted editorially in the preparation of this essay by his son, Donald M. Ferencz, who is also an active proponent of international justice and the rule of law; he may be reached at donferencz@aol.com.

2 Hugo Grotius, On the Laws of War and Peace, Book III. Chap XXV, Section II, available online at http://books.google.com/books?id=j1esrnUC- YQC&pg=PA83&lpg=PA83&dq=lest+by+imitating+wild+beasts+we+forget+to+be+h uman&source=bl&ots=5Qu504gqq_&sig=msOgyF3vNMIcNv8VM3NcFPuLM5s&hl=e

3 Available on-line at http://avalon.law.yale.edu/19th_century/lieber.asp .

4 See The Preamble to The Geneva Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907, available online at http://www.icrc.org/ihl.nsf/WebART/195-200001?OpenDocument .

5 Violations of the Laws and Customs of War, Reports of Majority and Dissenting Reports of American and Japanese Members of the Commission of Responsibilities Conference of Paris 1919, Carnegie Endowment for International Peace, Division of International Law, Pamphlet No. 32, Clarendon Press, Oxford, 1919, at p. 20, available online at http://archive.org/stream/violationoflawsc00pariuoft#page/n1/mode/2up .

6 Preamble to the United Nations Charter, available online at http://www.un.org/en/documents/charter/.

7 U.N. Charter Articles 2(4), 42-51, available online at http://www.un.org/en/documents/charter/

8 Letter from Justice Robert H. Jackson to the President of the United States, 6 June 1945, reporting on the Nuremberg Trials, available on-line at http://avalon.law.yale.edu/imt/jack08.asp.

9 IMT Judgement, The Law of the Charter, available on-line at http://avalon.law.yale.edu/imt/judlawch.asp. See also Benjamin B. Ferencz, An International Criminal Court, A Step Towards World Peace, p. 479, Oceana Publications, Inc. 1980 available online at http://www.benferencz.org/books/FerenczAnInternationalCriminalCourtVol1.pdf.

10 Constitution of the International Military Tribunal, Article 6(c), available online at http://avalon.law.yale.edu/imt/imtconst.asp .

11 Telford Taylor speech of April, 1947, translated copy on file with the author.

12 See preamble to General Assembly resolution 217 A (III), available online at http://daccess-dds- ny.un.org/doc/RESOLUTION/GEN/NR0/043/88/IMG/NR004388.pdf?OpenElement.

13 Id. at Article 3.

14 G.A. Res. 39/11, 1984, available online at http://daccess-dds- ny.un.org/doc/RESOLUTION/GEN/NR0/459/88/IMG/NR045988.pdf?OpenElement

15 G.A. Res. 3314 (1974), available online at http://daccess-dds- ny.un.org/doc/RESOLUTION/GEN/NR0/739/16/IMG/NR073916.pdf?OpenElement; see also Benjamin B. Ferencz, Defining International Aggression, Volume II, Oceana Publications, Inc. (1975), B. Ferencz, “The United Nations Consensus Definition of Aggression: Sieve or Substance?”, Journal of International Law and Economics, National Law Center, George Washington University 10 (Aug.-Dec.,1975) 701-724.

16 For a comprehensive discussion of the Kampala amendments and process, see Stefan Barriga and Leena Grover, A Historic Breakthrough on the Crime of Aggression, American Journal of International Law, July 2011 edition, Vol. 105:477, pp. 517-533, available online at http://www.regierung.li/uploads/media/105_AJIL_July_2011_-_Barriga-Grover_-

_Historic_Breakthrough_on_the_Crime_of_Aggression_01.pdf .

17 For a discussion of the development of the definition of the crime of aggression up to and including the Kampala review conference, see Prof. Claus Kress and Leonie von Holtzendorff, The Kampala Compromise on the Crime of Aggression, available online at http://intl- jicj.oxfordjournals.org/content/8/5/1179.full.pdf+html.

18 Excerpted from a History of the Peloponnesian Wars, relevant portion available online at http://www.rooseveltlausd.org/ourpages/auto/2010/9/29/49133548/Thucydides% 20History%20of%20the%20Peloponnesian%20War.doc .

19 Covenant of the League of Nations, Art. 12, available online at

http://www.unhcr.org/refworld/publisher,LON,,,3dd8b9854,0.html .

20 Statement by President Dwight D. Eisenhower made on April 30, 1958, in recognition of Law Day, available online at http://www.eisenhowermemorial.org/pages.php?pid=504 .

21 Excerpted from an address to The Allied Control Council in Tokyo, April 1946, American Affairs, Vol. III, No. 3, at p. 150, Summer Edition (July, 1946), available online at http://mises.org/journals/aa/AA1946_VIII_3.pdf.

22 See, for example, Mullen’s address to The Washington Center for Internships and Academic Seminars, Washington, DC, 6 January 2010, where he said “I would much rather prevent a war than fight a war,” http://www.defense.gov/transcripts/transcript.aspx?transcriptid=4119.

23 For a short biographical sketch and tribute to Hersch Lauterpacht, see Philippe Sands, My legal hero: Hersch Lauterpacht, The Guardian Online, 10 November 2010, available online at http://www.guardian.co.uk/law/2010/nov/10/my-legal-hero-hersch-lauterpacht.

24 See, for example, McDougal, Myres S., “International Law and the Future” (1979). Faculty Scholarship Series. Paper 2662, available online at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=3677&context=fss_pape rs .

25 As noted by Myres McDougal, supra, note 24, at p. 260, “Michael Reisman has appropriately emphasized that lawyers must continuously make judgments about the future. In Reisman, Private Armies in a Global War System: Prologue to a Decision, 14 VA.

  1. OO’L L. 1,33 (1973), he writes: Lawyers too often overlook the painfully obvious fact that though the events which precipitate decisions come from the past, decisions themselves are future oriented; the test of their quality is not whether they conform to the past, but rather whether they structure processes and value allocations in the near and distant future in preferred ways.”

26 M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, at p. 44, Kluwer Law International, 2d ed. 1999. For an excellent discussion of the movement toward an international convention for crimes against humanity, see also Leila N. Sadat, Forging a Convention for Crimes Against Humanity, Cambridge University Press, 2011.

27 William Schabas, Unimaginable Atrocities, Oxford University Press, 2012, at p. 221.

28 For a general discussion of the development of international law, see Benjamin Ferencz, New Legal Foundations for Global Survival, Oceana Publications, 1995 and Enforcing International Law, A Way to World Peace, Oceana Publications, 1983 (included among selected works of the author available online at http://heinonlinebackup.com/HOLtest/UNLAV ).

29 Ambassador of Liechtenstein to the United Nations, Christian Wenaweser, as the outgoing President of the Assembly of States Parties, declared, “It is now up to each one of us States Parties to do what is necessary to have this system become operational in 2017.” Remarks by Christian Wenaweser as ASP President (2009- 2011), p. 2, available online at http://www2.icc- cpi.int/iccdocs/asp_docs/ASP10/Statements/ASP10-ST-PASP-CW-CLRemarks- ENG.pdf. The Principality of Liechtenstein became the first State to deposit its instrument of ratification of the Kampala amendments on 8 May 2012.

30 For his major work reviewing the Rome Statute, see Triffterer: Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (Second Edition), Hart Publishing, 2008.

31 Preamble, The Rome Statute of the International Criminal Court, available online at http://untreaty.un.org/cod/icc/statute/romefra.htm. See also the remarks of Amb. Tiina Intelmann, the current President of the Assembly of States Parties who, upon her election stated, “States Parties should increase their focus in building capacities of national jurisdictions. This is also the only way to deter future crimes.” SECRETARIAT OF THE ASSEMBLY OF STATES PARTIES, Tenth Session of the Assembly, New York, 12 – 21 December 2011, Remarks by Amb. Intelmann, the new President of the Assembly upon election, at p. 1, available online at http://www2.icc- cpi.int/iccdocs/asp_docs/ASP10/Statements/ASP10-ST-NPASP-Remarks-ENG.pdf.

32 ICC Statute Article 16, available online at

http://untreaty.un.org/cod/icc/statute/romefra.htm.

33 Statement of Navi Pillay to the Assembly of States Parties, 12 December 2011, available online at http://www2.icc-cpi.int/iccdocs/asp_docs/ASP10/Statements/ASP10- ST-UNHCHR-ENG.pdf.

34 Id. See also speech of Navi Pillay, UN High Commissioner for Human Right, at Cinema for Peace Dinner, December 2011, New York, NY, available online at http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=11724&L angID=E

35 International Criminal Court Turns Ten, Opinion piece by Judge Sang-Hyun Song, President of the International Criminal Court, 2 July 2012, available online at http://appablog.wordpress.com/2012/07/02/international-criminal-court-turns-ten- opinion-piece-by-judge-sang-hyun-song-president-of-the-international-criminal-court/.

36 See Progress Report of the Human Rights Council Advisory Committee on the Right of Peoples to Peace, as reproduced 9 December 2011, A/HRC/AC/8/2, available online at http://www.ohchr.org/Documents/HRBodies/HRCouncil/AdvisoryCom/Session8/A-HRC- AC-8-2_en.doc.

37 The Japanese Constitution at Article 9 reads “Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes. In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized. “(available online at http://www.kantei.go.jp/foreign/constitution_and_government_of_japan/constitution_e.html). Art. 26(1) of the German Basic Law reads: “Acts tending to and undertaken with intent to disturb the peaceful relations between nations, especially to prepare for a war of aggression, shall be unconstitutional. They shall be made a criminal offense.” (available online at http://www.iuscomp.org/gla/statutes/GG.htm#26); moreover, German Ambassador Hans-Peter Kaul, a respected judge at the ICC, has been an ardent and outspoken champion of criminalizing the crime of aggression and the illegal use of force on both the international and national level (See, for example, Is it Possible to Prevent or Punish Future Aggressive War‐making? Address by Judge Dr. jur. h. c. Hans‐Peter Kaul, Second Vice‐President of the International Criminal Court at the Li Haopei Lecture Series “Implications of the Criminalization of Aggression” , 8 February 2011, Forum for International Criminal and Humanitarian Law, Oslo, Norway, available online at http://www.icc-cpi.int/NR/rdonlyres/6B2BA9C6-C5B5-417A-8EF4- DA3CA0902172/282974/07022011_ImplicationsoftheCriminalizationofAggress.pdf).

38 See, for example, R. v. Jones, where the U.K. Law Lords opined that the crime of aggression exists in customary international law, but must first be domesticated into national law by specific legislative action before it can be prosecuted in domestic courts, [2006] UKHL 16, available online at http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd060329/jones-1.htm.

39 The Rome Statute of the International Criminal Court, Article 7, Paragraph 1.k, available online at http://untreaty.un.org/cod/icc/statute/romefra.htm. By way of example, courts have interpreted beatings and acts of violence, including forcing a woman to exercise naked in public to constitute “other inhumane acts”. See Substantive and Procedural Aspects of International Criminal Law, the Experience of International and National Court,

Gabrielle Kirk McDonald and Olivia Swaak-Goldman, Volume I, Kluwer Law International, 2000, at p. 244. Author’s note: If crimes such as these are within “other inhumane acts”, surely killing masses of civilians in an illegal war merits at least equal condemnation as a prosecutable crime.

40 Judgment of the International Military Tribunal at Nuremberg, under the heading The Common Plan or Conspiracy and Aggressive War, available online at http://avalon.law.yale.edu/imt/judnazi.asp.

41 94 American Journal of International Law (pp.240) (April 2000).

42 Eisenhower’s farewell addresses to the nation, 17 January 1961, text available online at http://avalon.law.yale.edu/20th_century/eisenhower001.asp. For a video of the speech, as delivered, see http://www.youtube.com/watch?v=CWiIYW_fBfY.

43 See Statement of U.N. Secretary-General Kofi Annan at the opening of the Preparatory Commission of the International Criminal Court, New York, 16 February 1999, available online at http://www.ngos.net/un/icc.html.

44 Transcripts of the IMT proceedings and judgement may be found on-line at The Avalon Project, with the opening statement of Jackson at http://avalon.law.yale.edu/imt/chap_05.asp. The trial transcript erroneously indicates that Jackson used the phrasing “Power ever has paid to Reason”; what Jackson actually said was “Power has ever paid to Reason,” as may be seen on live video footage of his opening statement available at http://www.youtube.com/watch?v=L50OZSeDXeA.

 

 

Talks Continue with Cambodia Over Refugee Resettlement

By Samuel Miller
Impunity Watch Reporter, North America and Oceania

CANBERRA, Australia — The Australian Government declared Monday a deal to resettle refugees in Cambodia is still on track, despite reports indicating the Cambodian Government would not take more Australian refugees. Under an agreement signed in September last year, Australia is paying Cambodia to take in refugees rejected from its detention center on Nauru, a tiny Oceanic island country located within the South Pacific.

The Walls of the Cambodian Villa Where Relocated Refugees Reside. (Photo Courtesy of Sydney Morning Herald)

So far, however, only four refugees from Nauru have volunteered to go to Cambodia.

Four refugees, an Iranian couple, an Iranian man and a Rohingyan man from Burma, were transferred from Nauru to the Cambodian capital Phnom Penh in June. Currently, they live in relative luxury in an Australian-funded villa, and the plan is to have the refugees remain there indefinitely.

Over the weekend, Interior Ministry spokesman Khieu Sopheak was quoted in the Cambodian Daily as saying the four refugees were “enjoying their life” in Cambodia. At the same time, however, Mr. Sopheak commented on the continued enterprise between the two countries.

“We don’t have any plans to import more refugees from Nauru to Cambodia. I think the less we receive the better.”

Australian Prime Minister Tony Abbott said the refugee deal “was still on track”, and “should be looked at as an important agreement which indicates Cambodia’s readiness to be a good international citizen.” Additionally, Immigration Minister Peter Dutton said Australia had a level of confidence in the agreement, and “we hope a lot more will follow the four who have already gone”.

A fact sheet on life in Cambodia given out on Nauru serves to act as an inducement. It paints an implausibly rosy picture of life, describing the country as “rapidly developing” with “all the freedoms of a democratic society”, as well as “a high standard of health care with multiple hospitals”, and no “violent crime or stray dogs”.

What Australia tells its own citizens about Cambodia is rather different. Australia’s foreign affairs department says on its website, “Health and medical services in Cambodia are generally of a very poor quality and very limited in the services they can provide”.

The Australian Government declined to comment on the apparent discrepancy.

Labor’s immigration spokesman, Richard Marles, called on Dutton to explain the situation. “This is an expensive joke and once again we are learning about this through comments from ministers in the Cambodian government rather than ministers in our own government,” he told Sky News.

Australia has set aside about $55.5m Australian Dollars (AU), or roughly $40m for the deal, including an AU$40m aid package, which means almost AU$14m per refugee so far, according to figures from the Australia Associated Press.

For more information, please see:

BBC News — Australian government denies Cambodia refugee deal collapse – 31 August 2015

The Guardian — Abbott defends $55m resettlement deal after Cambodia says no to more refugees – 31 August 2015

Deutsche Welle — Australia denies Cambodia refugee deal in jeopardy – 30 August 2015

Sydney Morning Herald — Plan to resettle refugees in Cambodia collapses – 30 August 2015

Colombians Flee Venezuela

By Kaitlyn Degnan
Impunity Watch Reporter, South America

BOGOTA, Colombia — A border dispute between Venezuela and Colombia has forced hundreds of Colombians living in Venezuela out of their homes, and over the border into Colombia. Civilians living in the border region have reported that Venezuela National Guard forces have thrown people out of their homes, and in some cases have demolished houses belonging to Colombian migrants.

Colombians flee Venezuela during border crackdown. (Photo courtesy of Reuters).

A firefight between Venezuelan forces and smugglers injured a number of forces, and caused President Nicolas Maduro to order the closing of several border crossings to Colombia. He also declared a state of emergency in six western cities along the border, suspending a number of constitutional rights. The suspension allows the National Guard to search homes and businesses without a warrant.

Maduro cited concerns of increased instances of smuggling and paramilitary activity in Colombia for the closures.  Since the closing over 6,000 Colombians have left Venezuela – 1,000 were deported and another 5,000 left voluntarily.

Talks between the foreign ministers of the two nations failed to produce any results. Maduro said that he would not open the border until the Colombian government “regained its sanity” and did more to protect the border.

Some have accused Maduro of prolonging the dispute to detract attention from the country’s economic issues.

Civilians have been using the Tachira River, which divides Venezuela from Colombia, to flee the country.  The Colombian government has mobilized disaster relief resources to provide aid to those coming into the country.

Colombian President Juan Manuel Santos has recalled the ambassador to Venezuela after his request to send an ombudsman to observe the human rights situation in the border city of San Antonio del Tachira order was denied. He also called for an emergency meeting of the Union of South American Nations and the Organization of American States.

Santos’s handling of the border crisis has been heavily criticized by opposition leader Alvaro Uribe, saying that Santos has done nothing to counter Maduro’s aggression.

The United Nations High Commissioner for Human Rights has called for the two countries to work to resolve the crises, reminding them of their obligations under international law. “We urge the Venezuelan authorities to ensure that the human rights of all affected individuals are fully respected, particularly in the context of any deportations,” said Rupert Colville, a spokesman for the Commissioner.

 

For more information, please see:

BBC – Colombians leave Venezuela in droves over border crisis – 26 August 2015

Business Insider – ‘I lost everything overnight’: Colombians are fleeing Venezuela with all of their possessions amid border crackdown – 26 August 2015

Reuters – Distraught Colombians flee Venezuela as border dispute intensifies – 26 August 2015

The Guardian – Colombia and Venezuela recall ambassadors amid border crisis – 28 August 2015

The Washington Post – Venezuelans to rally in support of closing Colombian border – 28 August 2015

Citizens Demand Governmental Reform as Garbage Lines the Streets of Lebanon

By Brittani Howell 

Impunity Watch Reporter, The Middle East

BEIRUT, Lebanon –  Protests over uncollected trash transform into anti-government protests in Lebanon this week. The “You Stink” movement expresses protestors’ discontent with the government.

Man rummages through pile of trash on Lebanon street. (Photo Curtesy of the New York Times)

The garbage crisis has been going on since July. Landfills became overfilled and the residents neighboring one particular landfill, blocked garbage trucks from entering because of potential environmental hazards. Since July, garbage has been collecting in the streets of Lebanon.

For many, the garbage filling the streets is the last straw. Mohammad Rizk, a sandwich shop owner, told the New York Times, “Enough. This is Enough. No electricity, we said O.K. No water, we said O.K. But the trash?”

The country cannot meet the power needs of its citizens and many have needed to purchase generators or merely go without power for hours at a time.

In addition, running water is only available for a few hours on certain days, even though Lebanon has water resources that neighboring countries would envy. When the water is running, it flows into the streets from the neglected, broken pipes. Citizens are thus forced to buy water to fill personal water tanks for daily use, or use salty water from wells.

Lebanon’s infrastructure is further strained as refugees from war torn areas seek shelter. As many as 1.3 million refugees from Syria have sought shelter in Lebanon, a country of 4 million people.

Lebanon’s Parliament has failed to elect a new President for 15 months. The sectarian nation is currently seeking a Christian to fill the Presidency, but the different religious sects have not reached an agreement on the person for the job.

The Parliament has been unable to even come to terms with a solution for cleaning up the garbage that lines the streets and adjourned from an emergency meeting held Tuesday with no solution.

Sunday’s protest turned violent. Sticks and stones were thrown at police officers and tear gas and hoses were turned onto protesters. Over 400 protesters and security forces were injured during the protest, according to the International Community of Red Cross. Subsequent planned protests have been delayed as 32 of the protesters were arrested.

Earlier this week Prime Minister Tammam Salam threatened to resign if the meeting on Tuesday was not productive regarding possible solutions to the garbage problem. If Salam did resign, Lebanon would be thrown into additional chaos, as it is the President who appoints the Prime Minister.

For further information, please see:

The Wall Street Journal – Anger Over Garbage in Lebanon Blossoms into Demand for Reform – 28 August 2015

The New York Times – As Trash Piles Up, So Does Contempt for Lebanon’s Government – 27 August 2015

CNN – Lebanon: How Piles of Trash Led to a Violent Uprising Against the Government – 24 August 2015

Reuters – Lebanon Protest Postponed as U.N. Urges Restraint – 24 August 2015

Europe’s Migrant Crisis: 71 Refugees Found Dead in Austria

by Shelby Vcelka

Impunity Watch Desk Reporter, Europe

VIENNA, Austria–

UN has called on European nations to collectively improve efforts to solve the growing migrant crisis, including prosecuting human traffickers preying on refugees. This mandate has come after 71 migrants were found dead in an abandoned truck this past week in Austria. The refugees were likely fleeing Syria and suffocated in the back, after the truck was abandoned on the side of the road.

Bodies found inside an abandoned vehicle in Austria are being loaded for transport to a forensics institute for autopsy. The 71 victims are believed to have suffocated inside the truck while migrating to Austria. (Photo courtesy of The New York Times)

The truck was found on August 27th, after traveling from Hungary to Austria. The partly decomposed bodies were found inside, piled on top of each other. Damage to the inside of the truck suggests that the refugees had attempted to get out before suffocating to death. Those dead include 59 men, 8 women, and 4 children, including one small infant. Papers from Syria suggest that many came to escape war-torn Syria, but Bangladeshi authorities have also claimed that some of the refugees came from there.

Though their identities are unknown as of yet, at least four people in Austria have been arrested in connection with the deaths. “We are talking about human trafficking, homicide, even murder,” said Johann Fuchs, state prosecutor of Eisenstadt. Autopsies are currently being conducted, with charges of human smuggling, danger to public safety leading to death, or murder being contemplated for those arrested.

The deaths are in connection with the biggest rise in migrants to Europe since the end of the Second World War. A UN report states that migration by boat alone has risen by 40% compared to 2014; the total number of refugees that had crossed the Mediterranean to reach Europe had increased from 219,000 in 2014, to 310,000 as of August 2015. More than 2,500 people have died at sea attempting to cross the Mediterranean, not including the 150 people that died crossing from Libya on Thursday. The cause of the deaths, officials say, is due to overcrowding of boats and the way people are packed into those boats.

Melissa Fleming, a UN spokeswoman, said the deaths of the refugees found in Austria clearly demonstrate “the desperation of people seeking protection or a new life in Europe….We believe this [event] underscores the ruthlessness of people-smugglers who have expanded their business from the Mediterranean Sea to the highways of Europe. It shows they have absolutely no regard for human life.”

For more information, please see–

Al-Jazeera–Arrests made after 71 dead refugees found in Austria— 28 August 2015

CNN–Italy arrests 10 in migrant deaths at sea; Austrian officials sort out deaths on land— 28 August 2015

The Guardian–A week in Europe’s migrant crisis – a visual guide— 28 August 2015

Miami Herald–Austrian officials: 71 migrants likely suffocated in truck— 28 August 2015

Miami Herald– Europe’s migrant crisis brings tragedy by land and sea— 28 August 2015

The New York Times-Europe Reels From More Migrant Deaths on Land and Sea— 28 August 2015

BBC–Migrant deaths: UN warns of ‘crisis of solidarity’— 29 August 2015

Syria Deeply: This Week August 28, 2015

Dear Readers,

Welcome to the new, revamped Syria Deeply weekly newsletter. We’ve rounded up the most important stories and developments from Syria and the Syrian diaspora.

Syrian Druze Dragged Into Civil War

Following the slaughter of dozens of Syrian Druze by Jabhat al-Nusra, the Syrian arm of al-Qaida, earlier this summer, many young Druze who spoke to Syria Deeplyexplained that an intense debate has been sparked in their communities about whether to take sides in the ongoing civil war. As the Syrian government continues to lose ground to rebel groups, some are saying the Druze must take a definitive stance in support of the uprising.

Syrian Government Continues Attacks on Douma

For more than a week Syrian government forces have launched airstrikes on the Damascus-area town of Douma, which is under rebel control. During the first attack alone – on August 16 – more than 110 civilians were killed within a matter of hours as bombs rained down on markets and neighborhoods.

Douma’s local city council has declared the town a “disaster zone” and called on the U.N. to intervene to halt Assad’s attacks. Speaking to Syria Deeply, witnesses and paramedics described scenes of carnage and massacre.

Aleppo Residents Hit Hard By Heatwave

Residents of Aleppo have been enduring an intense heatwave that has seen temperatures reach 108 degrees Fahrenheit. The heatwave comes on the heels of a devastating water shortage that left many locals ill, according to UNICEF.

Syria Deeply spoke to locals in Aleppo, who described the difficulties of coping with the heatwave at a time when their community is already besieged by the Syrian government.

More Recent Stories

• Analysis: The International Community Continues to Be Unmoved by Syria
• My Syrian Diary: Part 36
• Activist Displays 50,000 Pictures of Syrian Victims in Front of the White House
• Nusra and ISIS Targeting, Assassinating Palestinian leaders in Yarmouk
• Analysis: Is Lebanon Violating Syrian Refugee Rights?

Find our new reporting and analysis every weekday at www.syriadeeply.org. You can reach our team with any comments or suggestions at info@newsdeeply.org.

Image credits: In the top photo, smoke rises in Douma, where government airstrikes have killed hundreds of civilians over the last two weeks; photo by Sham News Network via Associated Press video. The photo of the Druze was taken by Ariel Schalit for the Associated Press. The photo of Douma was taken by Bassam al-Hakim for Syria Deeply. The photo of the child getting water in Aleppo was taken by Muhammed Muheisen for the Associated Press.

Syria Justice and Accountabilty Centre: Population Transfers- The Wrong Path to Peace

 

Joshua Landis plan to divid Syria as presented to CNN

Joshua Landis plan to divide Syria as presented to CNN

 

On August 12, Iran and Turkey helped mediate a temporary ceasefire agreement between Hezbollah and Ahrar al-Sham that halted fighting in three towns in Syria. The ceasefire agreement allowed humanitarian aid to reach these besieged areas and permitted those who were injured or sick to leave and seek care. Negotiations, however, faltered, and the ceasefire agreement collapsed after three days. Each side blamed the other for making unreasonable demands. In unconfirmed reports by Ahrar al-Sham, Iran and Hezbollah demanded civilian population transfers by which the Sunni population would be moved out of Zabadani and the Shia populations would be moved out of Foua and Kefraya in Idlib Province. These claims stoked already existing fears that regional powers are seeking to divide Syria along sectarian lines as an alternative to outright military victory.

Redrawing Syria’s borders is not a new proposal. Syria experts and news outlets have put forth the idea over the past year as a solution to ISIS expansion. Given the sectarian nature of Syria’s war, the proposed solutions most commonly divide the country along Iraq-style lines, with Alawites and Shias, Sunnis, and Kurds each taking their own regions. The problem is that these populations do not live in distinct areas of the country. Many of Syria’s cities include a mix of Sunnis, Alawites, Shias, Christians, Druze, Kurds, and other minority groups. Thus, the division of Syria according to sectarian and ethnic differences will necessitate mass population transfers in order for the country demographics to fit this cookie-cutter solution.

Forced population transfers are strictly forbidden under international law and are commonly equated with ethnic cleansing. The Rome Statute of the International Criminal Court defines forcible transfers of populations as a crime against humanity, and the International Criminal Tribunal for the Former Yugoslavia (ICTY) has convicted military commanders for forced deportations that occurred during the Yugoslav conflict. To avoid contravening international law, a negotiated settlement must give the local population the option to stay, move to the newly designated area, or relocate to a different location of their own choosing. But in reality, this “choice” is often a false one. According to the UN Subcommission on Prevention of Discrimination and Protection of Minorities, the conditions surrounding treaties that call for population transfers usually create “strong moral, psychological and economic pressures to move.” Particularly in conflicts zones defined by sectarian or ethnic hatreds, members of the group being transferred may be fearful of staying and potentially facing persecution as a minority when the ethnic group or religious sect that fought on the other side of the war takes over the area.

Given the current tensions in Syria, there is no scenario in which Syrians will have a meaningful choice about where to live if negotiating parties agree to population transfers along sectarian and ethnic lines as part of a ceasefire agreement. The result will be economically devastating and most likely bloody for those involved. In the former Yugoslavia, orders for population transfers fueled ethnic tensions and emboldened local Serbs to forcibly removetheir Croat and Muslim neighbors from their homes, leading to bloodshed, rape, and the destruction of homes and mosques. Forced to flee, many left behind everything they owned, and to this day Bosnia is grappling with the issue of compensation for property loss.

Over 6.5 million Syrians have been displaced as a result of the conflict. Policy decisions on where and how they will be resettled as well the parameters of a negotiated ceasefire could lead to attempts to redraw Syria’s ethnic and sectarian map. Experiences from past conflicts demonstrate that population transfers along ethnic and religious lines tend to lead to increased levels of violence, and in Syria, such a plan could create new sources of tension. The United Nations and the international community should closely monitor this issue and ensure that the UN envoy to Syria does not endorse population transfers in order to achieve local ceasefire agreements or national settlements. While such a deal might placate regional or local leaders, Syrians will suffer in the aftermath and the ethnic and religious minorities in each newly formed state will likely pay the biggest price.

Nicaraguan on Death Row Given Reprieve by Texas Court

By Samuel Miller
Impunity Watch Reporter, North America and Oceania

AUSTIN, Texas, United States — The Texas Court of Criminal Appeals halted the execution of a Nicaraguan national who argued that his lawyers had not done enough to present evidence to the court of his diminished mental capacity. Additionally, last week the Inter-American Commission on Human Rights issued a preliminary report finding that the United States violated Tercero’s right to a fair trial.

Protesters Supporting Bernardo Tercero in Texas. (Photo Courtesy of NPR)

The Court of Criminal Appeals ordered Tuesday that Tercero’s case return to the trial court in Harris County for review.

Tercero’s current lawyers contend that he suffers from anxiety, post-traumatic stress and depression, and that he has shown signs of psychosis along with limited brain function. Tercero and his current lawyers contend had that evidence been presented by his trial lawyers, the jury might not have sentenced Tercero to death.

According to Tercero’s lawyers, the witness has signed a sworn statement saying that part of her evidence was false. Tercero’s lawyers also say that Mr. Tercero was denied his right to speak to the Nicaraguan consulate after his arrest.

On Oct. 20, 2000, Bernardo Aban Tercero was convicted of capital murder and sentenced to die for the 1997 fatal shooting of Robert Berger, a customer at a Harris County, Texas dry-cleaning shop.

Tercero said that the gun had gone off accidentally as he struggled with Mr. Berger, who tried to thwart the robbery. However, an acquaintance of Tercero’s told the court that he had given her various reasons for killing Mr. Berger, including that he had seen his face and would be able to identify him. Mr. Tercero denied these conversations taking place.

In response to Tercero’s claims, prosecutors in Harris County, Texas argue that the inmate presented his allegations of false testimony too late in the process. State lawyers said that Tercero’s lawyers knew about the alleged false testimony for about 15 years and could have presented the claims “earlier than two days before” the scheduled execution.

The planned execution of Tercero had drawn condemnation from outside the United States. Denis Moncada, Nicaragua’s ambassador to the Organization of American States, told Agence France-Presse that since his country has no death penalty, “it seems pathetic to be on the verge of a Nicuaraguan citizen’s execution.”

Tercero had petitioned for relief multiple times in various courts, eventually asking the U.S. Supreme Court last year to review his case, according to the office of Ken Paxton, the Texas attorney general. The justices declined to review the case.

For more information, please see:

BBC News — Nicaraguan on death row gets reprieve from Texas court – 26 August 2015

Dallas Morning News — Texas appeals court halts Nicaraguan killer’s execution – 25 August 2015

NPR — Texas Set To Execute Nicaraguan National, Despite Legal Controversy – 25 August 2015

Washington Post — Texas court stays execution of Nicaraguan man convicted of 1997 murder – 25 August 2015

Protests in Nepal Over New Constitution Leave Several Dead

By Christine Khamis

Impunity Watch Reporter, Asia

 

KATHMANDU, Nepal —

Protests began in Kailali, Nepal on Monday after a revised national constitution was presented to the Nepalese Parliament on Sunday. At least nine people were killed, including police officers and civilians. There have been reports stating that three protestors and a child were also killed. Dozens of people were arrested during the protests.

Protestors in Nepal. (Photo courtesy of Al Jazeera)

The new constitution calls for dividing Nepal into seven separate provinces, but excludes a province for the Tharu ethnic group. Members of the Tharu group, who live in the western region of Nepal, have called for the establishment of a separate Tharu province in order that they may have political representation.

Thousands gathered to protest in Tikapur, a town in Kailali. There were also protests in two other districts. In Tikapur, protestors replaced government signs with signs reading “Tharu State”.

Kailali’s chief Administrative Officer, Raj Kumar Shrestha, has stated that security officials were caught off guard and were attacked by the protesters, who were carrying weapons such as spears, knives, and stones. One of the police officers was set on fire by protestors. The death toll is expected to rise, according to Mr. Shrestha.

According to Bam Dev Guatam, Nepal’s deputy prime minister and home minister, the Nepalese government held an emergency cabinet meeting on Monday, during which it authorized the districts affected by the protests to call in troops.

Nepal has been working to put together a new constitution since 2008, after a decade of Maoist insurgency that caused the collapse of Nepal’s Hindu monarchy along with the deaths of around 16,000 people.

There has been much contention over the administrative division of Nepal, which has been centrally governed for over two centuries. That contention has been a barrier to the adoption of a new Nepalese Constitution. Over 100 ethnic groups and castes live in Nepal, and many disagree on how the many local districts should be combined into provinces and whether those provinces should be formed according to ethnicity.

Himal Dandu Sherpa, vice chairman of Nepal’s federation of indigenous nationalities, told Channel News Asia that the proposed constitution does not ensure the rights of indigenous communities and that it breaks up the districts of indigenous groups in different provinces. Minority groups have stated that the new constitution discriminates against them and gives them inadequate autonomy.

 

For more information, please see:

 

Al Jazeera – Deadly Clashes Between Nepali Police and Protesters – 24 August 2015

BBC – Nepal Clashes at Protest Over Constitution Leave Eight Dead – 24 August 2015

International Business Times – Nepal Constitution Protest: At least 7 Police Offers Killed, Dozens Arrested Amid Demonstrations – 24 August 2015

The New York Times – Plan for New Nepal Districts Draws Deadly Protests and Attacks on Police– 24 August 2015

 

 

 

 

 

War Crimes Prosecution Watch: Volume 10, Issue 12- August 24, 2012

Volume 10 – Issue 12
August 24, 2015

PILPG Logo

Editor in Chief
Alexis Krivoshik

Managing Editors
Kate Mozynski
Aaron Kearny

Senior Technical Editor
R. Tadd Pinkston

War Crimes Prosecution Watch is a bi-weekly e-newsletter that compiles official documents and articles from major news sources detailing and analyzing salient issues pertaining to the investigation and prosecution of war crimes throughout the world. To subscribe, please email warcrimeswatch@pilpg.org and type “subscribe” in the subject line.

Opinions expressed in the articles herein represent the views of their authors and are not necessarily those of the War Crimes Prosecution Watch staff, the Case Western Reserve University School of Law or Public International Law & Policy Group.

INTERNATIONAL CRIMINAL COURT

Darfur, Sudan

Official Website of the International Criminal Court
ICC Public Documents – Situation in Darfur, Sudan

Rwanda’s Intelligence Chief Won’t Be Extradited to Spain
Wall Street Journal
By Nadim Roberts
August 10, 2015

A U.K. court has rejected an extradition case against Rwanda’s spy chief to stand trial in Spain for his alleged role in reprisal killings following the country’s 1994 genocide, Britain’s prosecution service said on Monday.

Rwanda’s intelligence chief Karenzi Karake was arrested in June at Heathrow Airport while embarking a flight to Rwanda. The arrest was made at the request of authorities in Spain, where he is wanted in connection with war crimes against civilians.

But on Monday, Britain’s Crown Prosecution Service said it didn’t believe an extradition offense could be established under U.K. law. “The main reason is that the relevant laws on the conduct alleged in this case do not cover the acts of non-U.K. nationals or residents abroad,” the CPS said.

Acting on this information, Senior District Judge Howard Riddle decided to discharge the European Arrest Warrant seeking the extradition of Mr. Karake, the CPS added.

Mr. Karake’s arrest had placed a strain on relations between Rwanda and the U.K. Rwandan government officials had claimed the charges were politically motivated and insulting, with the country’s president calling the arrest a “continuation of slavery, of colonialism, of violence and bigotry.”

Mr. Karake is a member of the Rwandan Patriotic Front, the current ruling party. He fought in the civil war that preceded the genocide. Previously, he was the deputy commander of the United Nations peacekeeping mission in Darfur, Sudan. He left that post in 2009.

Human Rights Watch protested his appointment, accusing him of coordinating attacks against civilians when Rwandan forces were fighting Uganda in Congo in 2000.

The Spanish warrant stemmed from an indictment issued by a judge in 2008 that accused Mr. Karake, along with dozens of other Rwandans, of war crimes in the aftermath of the genocide. Mr. Karake was also accused of ordering the 1997 killing of three Spanish volunteers from a medical charity, Medicos del Mundo.

Rwanda’s Foreign Minister Louise Mushikiwabo said on Monday in a message on Twitter that she was delighted Mr. Karake would be coming home. “This was an unnecessary and abusive process,” she said.

A Spanish lawyer for plaintiffs seeking Mr. Karake’s extradition couldn’t immediately be reached for comment.

South Africa: Judgment Reserved in Bashir Appeal Bid
All Africa
August 14, 2015

Judgment was reserved in an application by the South African government for leave to appeal a ruling that it should have detained Sudanese President Omar al-Bashir when he was in South Africa for an African Union (AU) summit.

A full bench of three judges of the High Court in Pretoria in June ruled that South Africa was compelled to arrest Al-Bashir and hand him over to the International Criminal Court (ICC) to stand trial on charges of war crimes, crimes against humanity and genocide in Darfur.

They also ruled that the government’s failure to take steps to arrest Bashir was unconstitutional.

In strongly-worded reasons for their ruling, the judges said the democratic edifice would crumble stone by stone until it collapsed and chaos would ensue if the state did not abide by court orders.

They said a democratic state based on the rule of law could not exist or function if the government ignored its constitutional obligations.

Judge President Dunstan Mlambo, Deputy Judge President Aubrey Ledwaba and Judge Hans Fabricius also invited the National Director of Public Prosecutions to consider if criminal proceedings were appropriate.

Judge Fabricius on June 14 granted an interim order to the Southern African Litigation Centre (SALC) to keep Bashir in the country.

The full bench granted an order on June 15 for his arrest, pending a formal request by the ICC, but he was allowed to leave while the matter was before court. The South African government maintained that as a sitting head of state, Bashir enjoyed absolute immunity and it would have been unlawful to arrest him.

It also maintained that the UN and not the government had invited Bashir.

On Friday, Jeremy Gauntlett, SC, representing the government, argued that the court had granted an order which potentially reached “to the death or retirement of President Bashir, which could be a very long time”.

He said it was not unlikely that Bashir would visit the country or pass through South Africa again.

“This involves the conduct of international relations and gives rise to serious constitutional debate… It would not in principle be right to say the last word has been spoken on the issue.

“These are issues of fundamental importance to the constitutional and the international obligations of the country,” he said. Gauntlett argued that the order could affect other heads of state who were in a similar situation and could affect every future event of international significance to be held in South Africa.

“Whether South Africa is in a position to host African events without arresting invitees is of pressing practical relevance to government,” he said.

He submitted that the court order imposed domestic legal obligations under a court order which was inconsistent with domestic legislation and international law and ventured into a sensitive area of foreign policy, which was within the heartland of the executive arm of government.

“The court’s inference that government was able to prevent President Bashir’s departure, but deliberately repudiated the order, is contrary to the evidence before court.

“In such circumstances there are good prospects that another court may come to a different conclusion on government’s compliance with the interim order.

“There is every reason to afford both parties an opportunity to ventilate the decision on appeal. If this is not permitted, the practical legal effect will be that the question will never realistically arise again before a South African court, because no head of State liable to arrest would ever again enter South Africa.

“The implications for South Africa’s conduct of its international relations are both clear and profound,” he submitted.

Wim Trengove, SC, for the SALC, argued that the issue became moot when Bashir left the country and that any order granted on appeal would have no practical effect.

He said if they had been told during the course of the hearing that Bashir had left the country, they would not have continued with the application.

“The issue was whether government had a duty to arrest him. That duty disappeared when Bashir left.

“The matter is moot and this court has no discretion to grant leave to appeal… Courts do not settle academic issues.

“The court ceased to have jurisdiction when the general left the country,” he said.

He submitted that it was entirely speculative to say Bashir might come back or that he or some other fugitive of justice might be invited to visit South Africa.

Trengove argued that there was in any event no prospect of success on appeal because the ICC Act placed a duty on the South African government to give effect to an ICC warrant and it made no difference if he was a sitting head of State.

Wanted War Criminal Plans New York Visit
Front Page Magazine
By Stephen Brown
August 18, 2015

The Obama administration is definitely no longer acting “with a sense of urgency and purpose” when it comes to Sudan’s President Omar al-Bashir, the world’s most prominent fugitive from International Criminal Court (ICC) justice.

The ICC indicted Bashir in 2009 on charges of genocide, war crimes, and crimes against humanity committed in Darfur, an area in western Sudan, but has not been able to apprehend him. He is the only head of state on the ICC’s wanted list. But despite the international warrant for his arrest, the “Butcher of Darfur” is apparently planning, for the third time in three years, to visit the United Nations (UN) in New York.

“Sudanese President Omar al-Bashir belongs in only one place, the International Criminal Court…,” said Elise Keppler, a Human Rights Watch official. “A visit by al-Bashir to the U.N. would not only be an affront to Darfuri victims, but a brazen challenge to the U.N. Security Council, which was responsible for sending Darfur to the ICC for investigation in the first place in 2005.”

Sudan’s Deputy UN ambassador, Hassan Hamid, confirmed earlier this month that Bashir will attend a UN conference on sustainable development in September along with 150 other heads of state. One conference agenda has Bashir scheduled to address the General Assembly on September 26. But another agenda has Sudan represented only at the ministerial level.

Bashir is regarded as “the mastermind” of the Darfur genocide, which once figured so prominently in the media but is now largely forgotten. Before that, after coming to power in Sudan in 1989, he presided over a brutal civil war in southern Sudan, underway since 1983, that saw two million people perish and tens of thousands of black Africans enslaved. The war ended in 2005 and saw southern Sudan become an independent country.

Obama made Darfur an issue in his 2008 election campaign, possibly because the genocide’s victims were black Africans and this would resonate with African-American voters. A campaigning Obama stated correctly that “hundreds of thousands of men, women and children,” had perished at the hands of Sudan’s military and Arab militias, armed and directed by Bashir and his cronies, three of whom are also wanted by the ICC.

Darfuri black Africans, feeling neglected by a government that is dominated by Sudanese Arabs like Bashir himself, had launched an insurgency in 2002 against the Khartoum regime. As a result of the conflict, several million Darfuris have been racially cleansed with the greatest brutally, including enslavement of children. Several million Darfuris, all Muslims like the Sudanese Arabs attacking them, have lived now for years in refugee camps with return an unlikely possibility, their lands either laid waste or occupied by Arab settlers.

Bashir’s first attempted to visit America in 2013, applying for a visa to attend the UN General Assembly. He apparently was so confident of receiving one he “booked rooms at a hotel in midtown Manhattan.” The ICC fugitive even appeared to taunt the US authorities about his proposed trip.

“Those people (the American government), we put them in a corner…We can go to the US and no one can do anything to us because there is no law in America that affords US authorities the right to take any action against me because it is not a member of the Rome Statute (the accord that created the ICC),” Bashir said at the time. “Attending the General Assembly is our right.”

In the end, though, Bashir decided to stay home. A factor in his decision may have been that the Obama administration reportedly “dragged its feet” on the visa.

A proposed visit in 2014 was also aborted. A Sudanese UN diplomat said the US simply denied Bashir a visa “in violation of the U.N.-U.S Headquarters Agreement.” This accord obliges the United States, as the host country, not only to issue visiting national dignitaries visas, but also to grant them diplomatic immunity. But in 1988, the US refused to grant Yasser Arafat a visa to address the General Assembly, causing the UN to move its meeting to Geneva.

Bashir’s 2013 cancellation probably elicited a huge sigh of relief in the White House. His arrival in New York would have constituted a huge embarrassment for the Obama. Hosting a war criminal would definitely not fit the image of a Nobel Peace Prize recipient and Democratic president who claims to be a big human rights supporter. Especially one who personally had once spoken so loud and long against the genocide in Dafur.

There also existed an even greater potential for damage to Obama’s reputation. According to Fund For Peace, the ICC had asked the American government to arrest Sudan’s leader after his arrival on American soil, even though the United States is not a signatory to the Rome Statute. Again, failure to act on this request would have seriously undermined Obama’s credentials, especially in the eyes of his liberal and leftist supporters, as a defender of human rights.

The same ingredients for acute embarrassment still exist for Obama if Bashir appears in New York next month. But even if the proposed visit, like the others, does not occur, it still serves the purpose of highlighting Obama’s failed Sudan policies. The genocide that he once called “a stain on all of us,” saying he would not “turn a blind eye to slaughter” still continues, according to Human Rights Watch (HRW).

HRW’s 2015 report on Sudan indicates the situation in Darfur may even be worse than when Obama was campaigning for president. Calling the UN-African Union military force in place to protect Darfuri refugees “largely ineffective,” the report outlines the Arab militias’ continued attacks on villages and civilians.

“They burned homes and shops, looted livestock, killed and robbed civilians, and forced tens of thousands of residents to flee towns and camps for displaced people,” the report reads. It adds that “450,000 people have fled violence in Darfur since the beginning of 2014.”

And the potential for genocide in Sudan, overall, is probably greater than in 2008. Government violence has spread to the Nuba Mountains in South Kordafon province where, again, a black African population has been under attack for years from government forces. Last month, Nicolas Kristof wrote in the New York Times that Bashir “blockades the area to keep out all food, medicine and supplies.”

“Sudan even bombs trucks carrying food, and its denial of food and medicine probably kills more civilians than bombings do directly,” Kristoff wrote.

Kristoff reports that Obama has “quietly provided food to the Nuba Mountains, thus avoiding starvation.” Medical shipments, however, are still desperately needed.

“But Obama overall has been weaker than the four previous presidents in standing up to Sudan,” Kristoff states.

The most glaring of Obama’s failed Sudan policies, however, is the fact that Bashir is still free and roaming the world six years after his ICC indictment. He has visited numerous countries, including China, since 2009, some repeatedly. Even more disgracefully, he now even dares to propose visiting America.

But why wouldn’t he? The White House’s response to Bashir’s still being at large has been one of inaction. The president who once deplored the genocide Bashir is still orchestrating has never launched a determined international crusade to bring him to justice. Obama, who often acts like he is answering a higher moral calling, appears in this case to have forgotten his moral obligation – and that black lives do matter.

Democratic Republic of the Congo

Official Website of the International Criminal Court
ICC Public Documents – Situation in the Democratic Republic of the Congo

Judge Fernández to Stay on Lubanga ICC Sentence Review Panel
International Justice Monitor
By Wairagala Wakabi
August 14, 2015

The Presidency of the International Criminal Court (ICC) has dismissed a defense application for the disqualification of Judge Silvia Fernández de Gurmendi from presiding over the upcoming review of Thomas Lubanga’s the prison sentence. The majority of a 15-judge plenary found that the functions Judge Fernández earlier performed in the Office of the Prosecutor (OTP) were “irrelevant” to the proceedings to determine whether Mr. Lubanga’s 14-year jail sentence should be reduced.

In an August 3, 2015 decision, the judges determined that the functions performed by Judge Fernández when she was employed by the OTP appeared to have been strategic, high-level, and “relatively removed” from the details of the case against Mr. Lubanga. “There might be circumstances where Judge Fernández’s prior functions in the OTP could raise a reasonable doubt as to her impartiality, but the applicant failed to provide any concrete evidence pointing to such circumstances,” the judges ruled.

In March 2012, Mr. Lubanga became the first person to be convicted by the ICC. He was found guilty of conscripting and using child soldiers in active combat during an ethnic conflict in the Congo in 2002 and 2003. As of last month, the former president of the Union of Congolese Patriots and its armed wing, known as the Patriotic Forces for the Liberation of Congo (FPLC), had served two thirds of his sentence. A hearing to determine whether his sentence should be reduced pursuant to Article 110 of the Rome Statute is scheduled for August 21.

On June 15, Mr. Lubanga’s lawyers filed an application for the disqualification of Judge Fernández from the sentence review panel, citing her previous work with the OTP, which they claimed “manifestly cast doubt on her impartiality.” In particular, the defense highlighted Judge Fernández’s roles as Special Adviser and Chef de Cabinet to former Prosecutor Luis Moreno-Ocampo between 2003 and 2006, when she was involved in the application for a warrant of arrest against Mr. Lubanga and the confirmation of charges hearing.

However, according to the prosecution, “a reasonable and well informed observer” would not find the judge biased. Prosecutor Fatou Bensouda, in a July 3, 2015 response, argued that the threshold to disqualify a judge should not be interpreted to encompass all proceedings before the court involving an accused or convicted person. “A judge who has participated in some aspect of the main criminal proceedings should not necessarily be conflicted to review the sentence of a convicted person,” argued the prosecutor.

She stated that the sentence review was of a “limited purpose and nature” not related to the merits of the case, which had already been adjudicated. The prosecutor also stated that Judge Fernández was never directly responsible for investigating and prosecuting Mr. Lubanga.

In written submissions to the plenary, Judge Fernández stated that since being appointed as a judge, she had “systematically” avoided being involved in judicial proceedings arising from any case whose investigations commenced or were conducted during the time she worked for the OTP. The judge considered that “the distinct nature” of the sentence review did not warrant a request for her excusal because it “deals with the reduction of a sentence already imposed and entails the consideration of circumstances that may have arisen after the culpability of the person and corresponding penalty have been already settled by a Trial Chamber and ruled upon by the Appeals Chamber.”

Since the sentence review considers the time that has elapsed since sentencing and any new circumstance that may have arisen since, Judge Fernández did not see how any decisions or determinations that she may have made at the OTP could “color” her evaluation of the specific factors she must consider during the review.

However, two judges on the plenary were in favor of granting the defense request for disqualification. These judges noted that it was a case of “apparent, not actual” bias and the prudent approach would be for Judge Fernández to step aside “so as to protect the judicial process from the charge of bias.” In particular, the two judges were concerned that Judge Fernández’s earlier role with the OTP “might bear some relevance” to one of the factors to be considered by the sentence review panel: Mr. Lubanga’s early and continuing willingness to cooperate with the Court in investigations and prosecutions.

Four judges abstained from the decision due to a lack of sufficient information which “prevented them from formulating a distinct position” on the defense application.

Kenya

Official Website of the International Criminal Court
ICC Public Documents – Situation in the Republic of Kenya

The President of the Assembly of States Parties meets with the Chairperson of the African Union Commission and with the Bureau of the Committee of Representatives
ICC-CPI
August 14, 2015

On 13 August 2015, H.E. Mr. Sidiki Kaba, President of the Assembly of States Parties to the Rome Statute (“the Assembly”) of the International Criminal Court (“the Court”), traveled to Addis Ababa (Ethiopia) to meet with H.E. Dr. Nkosazana Dlamini-Zuma, Chairperson of the African Union Commission. During their exchanges, the President of the Assembly introduced the main priorities of his term and reiterated the need to develop a new relationship between Africa and the Court. He also emphasized the need to strengthen the judicial capacities of States to prevent and prosecute the most serious crimes contained in the Rome Statute.

President Sidiki Kaba also met with the Bureau of the Committee of Representatives to the African Union (COREP) and with the Chairs of the African regional groups at a meeting held in the presence of Ms. Djenna Djarra, Executive Secretary of the Commission. At this meeting, President Kaba welcomed the efforts undertaken by the African Union to fight impunity.

Furthermore, President Kaba met with Mr. Haile Menkerios, Special Representative of the United Nations Secretary-General to the African Union, with whom he had fruitful discussions on the peacebuilding efforts by the United Nations in Africa. In this regard, he reiterated that justice is an essential vehicle to ensure sustainable peace and break the cycles of violence that feed from impunity.

President Kaba also met with the Delegation of the European Union (“EU”) and with the representatives from EU member states in Addis, as well as with the representatives of the Group of Latin American and Caribbean States (GRULAC) accredited in Ethiopia. At these meetings, he urged them to continue supporting the Court.

At the conclusion of this official visit, H.E. Mr. Kaba stated:

“I thank President Dlamini-Zuma for her warm welcoming as well as the constructive exchanges we had. I am convinced that there is an urgent need to restore trust between the Court and African States Parties to the Rome Statute. The dialogue that we started today must be continued as we aspire to initiate a new era in the relationship between the Assembly and African States.”

ICC Appeals Chamber reverses decision on Kenya’s cooperation and remands issue to Trial Chamber for new determination
ICC-CPI
August 19, 2015

Today, 19 August 2015, the Appeals Chamber of the International Criminal Court (ICC) reversed Trial Chamber V(B)’s decision regarding the Kenyan Government’s alleged non-compliance with its obligations under the Rome Statute in the case The Prosecutor v. Uhuru Muigai Kenyatta, due to errors in the Trial Chamber’s assessment. The Appeals Chamber hence remanded this decision to the Trial Chamber V(B) to determine, in light of relevant factors, whether Kenya has failed to comply with a cooperation request that has prevented the Court from exercising its functions and powers and, if so, to make an assessment of whether it is appropriate to refer Kenya’s non-compliance to the Assembly of States Parties (ASP).

On 29 November 2013, the Prosecution had filed an application for a finding of non-cooperation against the Kenyan Government, alleging that the Government had failed to comply with a request to produce records relating to Mr Kenyatta. On 3 December 2014, Trial Chamber V(B) rejected the application for referral of the matter to the ASP. The Prosecutor appealed this decision on 20 March 2015.

Today, Judge Silvia Fernández de Gurmendi, Presiding Judge in this appeal, delivered a summary of the judgment in an open court session. She indicated that the Appeals Chamber considered that Trial Chamber V(B) erred by failing to address whether judicial measures had been exhausted to obtain the Kenyan Government’s cooperation, as well as by assessing in an inconsistent manner the sufficiency of evidence and the Prosecutor’s conduct. The Appeals Chamber found that these errors prevented the Trial Chamber from making a conclusive determination on the existence of a failure to comply with a cooperation request by the Court and affected the Trial Chamber’s decision not to refer the matter of Kenya’s non-compliance to the ASP. The Appeal Chamber hence reversed the Trial Chamber’s decision and remanded it for the Trial Chamber for a new determination.

The Appeals Chamber emphasized that in determining whether there was a failure from a State to cooperate, the Trial Chamber should take into account all relevant factors, including the evidence that was required in the cooperation request and the conduct of the parties to the proceedings. The Trial Chamber should determine whether judicial measures to obtain the cooperation had been exhausted and consultations had reached a deadlock. In addition, Trial Chamber V(B) should have avoided conflating the status of the criminal proceedings against Mr Kenyatta with the issues relating to the Kenyan Government’s cooperation.

Background: In accordance with the Rome Statute, the Court’s founding treaty, all States Parties are obliged to cooperate fully with the ICC in its investigations and prosecutions. Where a State Party fails to comply with a request to cooperate with the Court, thereby preventing the Court from exercising its functions and powers, ICC Judges can make a finding of a failure to comply with a request for cooperation by a State, which prevents the Court from exercising its powers and functions under the Statute and decide to refer the matter to the ASP, or the United Nations Security Council if the latter had referred the situation to the Court, to seek external assistance to obtain cooperation with the request at issue or to otherwise address the lack of cooperation by the requested State. The ASP and the Council may then decide to take the measures they deem appropriate.

Mr Kenyatta was charged, as an indirect co-perpetrator, with five counts of crimes against humanity allegedly committed during the post-election violence in Kenya in 2007-2008. Charges were confirmed on 23 January 2012, and the case was committed to trial before Trial Chamber V(B). On 13 March 2015, Trial Chamber V(B) decided to terminate the proceedings in this case and to vacate the summons to appear against him, noting the Prosecution’s withdrawal of charges against Mr Kenyatta. The Chamber also stressed that, although the proceedings shall be terminated, the Court retains jurisdiction over any interference with a witness or with the collection of evidence, and that the protective measures ordered for witnesses and/or victims shall continue, subject to the review by the ICC.

Libya

Official Website of the International Criminal Court
ICC Public Documents – Situation in the Libyan Arab Jamahiriya

Lawyers to appeal sentences handed out to Libyan regime-era officials
International Bar Association
By Tom Westcott
August 10, 2015

Defense lawyers in Libya are preparing to appeal against sentences handed out last week, including nine death penalties, for war crimes allegedly committed by senior officials from the regime of Muammar Gaddafi during Libya’s 2011 uprising.

A week after the pronouncements had been made, lawyers complained that they had still not received copies of the documents from the court ruling.

‘Time is precious to us because we have only 60 days to appeal,’ said lawyer Ibrahim Aboisha.

He is representing two clients – Gaddafi’s former head of intelligence Abdullah Senussi and the man who served as his right-hand man, Abdulhamid Amar Oheida, both of whom were among the nine sentenced to death by firing squad.

‘We only heard the sentences in the court, like everyone else who was present, but we must see all the details and the reasons why the judge made the ruling and gave such sentences before we can prepare our appeal,’ Aboisha said.

The verdicts were passed by judge Naji Al-Amin on 28 July, in a purpose-built courtroom inside Tripoli’s Hadba prison facility, where most of the accused men have been held.

The death sentences were a dramatic finale to the mass trial of 36 regime-era senior officials and Gaddafi’s son Saif Al-Islam. The often slow-moving proceedings had drifted on for over a year with scant international attention, after Libya’s security situation deteriorated forcing most embassies and international organisations to relocate to neighbouring Tunisia.

Sentenced in absentia and having apparently had no meaningful legal representation throughout the trial, Saif was also handed the death penalty. His sentence is little more than a symbolic gesture, however. Under Libyan law, Saif would have to be retried in person and he continues to be held in the mountain town of Zintan, which is not under the control of the Tripoli government.

The verdict was also pronounced in spite of a long-standing demand from the International Criminal Court (ICC) for Libya to hand over Saif to the Hague, where he is wanted for crimes against humanity. The Libyan authorities – under successive and now rival post-revolutionary governments – have continued to appeal against the ICC’s demand, insisting that its judicial systems were competent to try Saif.

The Tripoli Justice Ministry said that, since the ICC had agreed that Libya’s court was deemed competent to try Senussi, the same rule should apply to Saif. However, his ongoing absence from the court proceedings (appearances via video-link stopped last summer) and a lack of independent verification of either his whereabouts or wellbeing, continues to cast a shadow over the proceedings against Saif.

At the Tripoli Appeals Court, 23 other defendants were given prison sentences, ranging from life imprisonment to five years, and large fines. Four men were acquitted and released immediately after the proceedings, and charges were dropped against a fifth who was deemed mentally unfit to stand trial.

‘I was shocked when I heard the verdicts,’ said another lawyer whose client received a prison sentence, and who spoke on condition of anonymity. ‘My client’s sentence is much too long, and it is for nothing.’ Calling both the accusations and the case presented by the General Prosecutor weak, he said he was certain his client was innocent. Like Aboisha, he was waiting to receive the court documents, to prepare an appeal.

The trial has been condemned by international human rights organisations as failing to meet international fair trial standards while having been plagued with human rights violations. Amnesty International called the proceedings ‘deeply flawed’ and said the Libyan authorities had failed to ensure the defendants’ due process rights had been met.

Richard Goldstone is Honorary President of the IBA’s Human Rights Institute. ‘There are serious allegations of a denial of fair trial rights of the defendants,’ he said, voicing concerns about the conditions in which defence counsel and witnesses could be protected and perform their duties. ‘This is especially of concern in cases such as the present one where some of the defendants have been sentenced to death. There should be a full reconsideration of the proceedings by the Supreme Court of Libya.’

The Head of Investigations for the General Prosecutor’s Office, Sadiq Al-Sour, has repeatedly said that defendants’ rights had been met, citing access to medical care, family visits, and investigations carried out in a ‘comfortable atmosphere’ and only by the General Prosecutor’s office. He also insisted that the court was completely impartial, despite it operating in Tripoli, which is controlled by a self-appointed, and not internationally-recognised, government.

However, such insistences seem to carry little weight amidst the powerful international backlash against the proceedings. They have also been undermined by the widespread circulation on social media sites across Libya of a video showing another of Gaddafi’s sons, Saadi, being tortured in Hadba prison, the same facility where most of the defendants have been incarcerated, and the location of the appeals court itself. The nine-minute video-clip shows Saadi being blindfolded, slapped, beaten on the soles of his feet and forced to listen to another man being tortured in an adjacent room.

Despite international concerns and regardless of a general amnesty for regime-era figures declared by Libya’s internationally-recognised government which is now based in the east of the country, lawyers believe the next two months are unlikely to see any meaningful reversal of, or change to, the sentences.

‘It is not looking promising. As long as the circumstances here remain the same, the result will be the same,’ Aboisha said. ‘But if the circumstances change and the appeals stage is fairer, then I am full of hope.’

Exile or death: violence and collapsed State leave human rights defenders with few options
FIDH-Worldwide Movement for Human Rights
August 12 2015

In Libya, human rights defenders have become prime targets for many armed groups involved in the ongoing civil war, reveals The Observatory in a report published today. Violence, harassment and intimidation are daily occurrences for these defenders, in a climate of impunity resulting from the breakdown of the State. The respect of human rights defenders as vital, non-partisan voices should be a baseline consensus for any successful agreement between parties to the conflict.

“No democratic society can exist without human rights defenders. They are the keystones in the construction of a State that protects and empowers the people. The situation they face is unbearable and puts at risk the entire process of building a sustainable democracy in Libya. Therefore, we call on the international community and all the parties to include them in the negotiations and to provide them with shelters for their protection”, stated Gerald Staberock, OMCT Secretary General.

The report illustrates this catastrophic situation through the stories of 24 human rights defenders, several of whom have been killed. Others have been kidnapped, received violent threats against them or their family. Their places of work have been broken into and subject to arson. Threatening phone calls, defamation, and exile in neighbouring countries are regular occurrences for Libyan defenders.

In this polarised context with no room for independent voices, no male or female citizen promoting the respect for human rights and democratic principles is out of danger. However, those most often targeted by acts of violence are lawyers, judges, representatives of government institutions and national or international human rights organisations, journalists and those who defend the rights of ethnic minority groups.

According to the testimonies of human rights defenders, the authors of these violations are mainly members of various non-State armed groups, particularly those belonging to the fundamentalist Islamist movement (in particular “Fajr Libya”). Sources have told the Observatory that Islamist armed groups keep “black lists” of targets containing the names of persons who promote democratic ideals and defend human rights and gender equality, values diametrically opposed to those promoted by Islamist armed groups.

The judicial institutions that do exist include in their founding statutes their allegiance to various tribes, warlords, and non-State actors, effectively legalising these entities. In some cases, these armed groups actually fund the judicial institutions themselves. These groups have gone on to replace State institutions by infiltrating them and rendering them dysfunctional.

With the support of the international community, Libya is currently participating in a process to reach an agreement to stabilise the country. The process will specifically address the protection of human rights and human rights defenders. However, some paramilitary groups and militias have deserted the negotiations. Their return to the negotiating table, upon which the success of the process depends, should be contingent upon their strict commitment to respect human rights. Human rights defenders must also be actively included in the process. Only under these conditions can a State respectful of basic human rights be established.

“Today in Libya, human rights defenders are forced to cease their activities or to go into exile in order to stay alive. However, even in exile, most Libyan human rights defenders face a very precarious situation. The host countries must examine the possibilities for supporting and facilitating the granting of refugee status to them”, declared Karim Lahidji, FIDH President.

Cote d’Ivoire (Ivory Coast)

Official Website of the International Criminal Court
ICC Public Documents – Situation in the Republic of Cote d’Ivoire

Ivory Coast Court Convicts Top Pro-Gbagbo Security Officials
Voice of America
August 5, 2015

A military tribunal in Ivory Coast on Tuesday convicted two top officials in former president Laurent Gbagbo’s security forces of crimes related to the West African nation’s 2011 civil war.

Ivory Coast, the world’s biggest cocoa grower, has seen rapid economic revival under President Alassane Ouattara but is still struggling with issues of reconciliation and justice.

About 3,000 people died in the conflict, which was sparked by Gbagbo’s refusal to acknowledge his defeat by Ouattara in a late 2010 presidential run-off election.

Anselme Seka Yapo, the head of former first lady Simone Gbagbo’s security detail, was found guilty of wilful murder and assault and sentenced to 20 years in prison.

The gendarme officer, known as Seka Seka, was accused of murdering the driver of Joel N’Guessan, a senior member of Ouattara’s RDR political party, and of beating his bodyguard.

In addition to his prison sentence, Yapo was also expelled from the gendarmes and will not be permitted to leave his home district for 10 years following his release.

Jean-Noel Abehi, who headed Gbagbo’s elite mobile gendarme squadron, was convicted of disobeying an order from superiors not to fight in support of the ex-president. He was sentenced to five years in jail.

Abehi, who was accused by a panel of U.N. experts of organizing a series of deadly raids from exile after the war, was arrested in Ghana in 2013 and handed over to Ivorian authorities.

Six other gendarmes on trial were acquitted of desertion.

Laurent Gbagbo is awaiting trial before the International Criminal Court (ICC) in The Hague for alleged crimes against humanity.

Simone Gbagbo is wanted by the court on similar charges, though Ivorian authorities have so far refused to extradite her.

Rights groups have accused Ouattara’s government of prosecuting Gbagbo supporters while ignoring crimes committed by the president’s own backers.

All three ICC indictments relating to Ivory Coast target Gbagbo and his allies though the ICC prosecution have said it will expand its investigations by the end of the year to pursue all sides in the conflict.

In a report released on Tuesday, New York-based Human Rights Watch senior international justice counsel, Elizabeth Evenson, said: “Additional ICC investigations are necessary, but the focus so far on pro-Gbagbo forces has deeply polarised opinion within Ivory Coast about the ICC.”

The ICC: Too Important to Let Fail
The Globe and Mail
By Elizabeth Evenson
August 7, 2015

This month, the International Criminal Court will present its budget request for next year to the court’s 123 members, including Canada. The ICC is the only permanent global court with a mandate to prosecute the world’s worst abuses, whether in Darfur, Libya or Congo. But budget negotiations have become increasingly fraught.

Just as its workload began to increase (to eight countries from five between 2010 and 2013), some ICC members, with France, Germany, Italy, Japan and Britain in the lead, began to insist the court undertake reforms and cap its budget. They cited the global economic crisis and budget crunches at home.

The pressure to limit growth has eased in some corners but not in Canada, which has become the leading advocate for holding down ICC budget increases. In the past couple of years, Canada has not stood in the way of increases in the ICC’s budget agreed to by all other member countries, but it has made clear it intends to apply a non-growth stand to all international organizations, including the ICC. That will have disastrous effects if Canada wins the day on the ICC. Zero growth for the ICC is simply not tenable, even in times of austerity. The 13-year-old court is just hitting its stride, completing first trials, grappling with complex and important situations, and facing demands for justice in more places. It is at pains to keep up.

Consider Ivory Coast. A new Human Rights Watch report on the ICC’s work in the West African country paints a picture of a court struggling to make sure the justice it delivers actually counts.

The ICC prosecutor opened investigations in 2011 into horrific abuses during the country’s 2010-2011 post-election crisis. Attacks both by forces allied with former president Laurent Gbagbo and by those with current President Alassane Ouattara killed at least 3,000 civilians. But the prosecution focused initial investigations on crimes by pro-Gbagbo forces. It has signalled it will continue its investigations into all sides this year but, until now, the only cases opened, including the one against Mr. Gbagbo, relate to one side of the conflict.

The result is polarized opinion about the court and a lack of access to justice before the ICC for victims of pro-Ouattara forces. Resulting perceptions of bias in the ICC’s work in Ivory Coast have damaged its legitimacy in that country. And even the court’s outreach around these existing cases was too narrowly focused to engage more Ivory Coast citizens in the ICC’s work.

Lessons from the court’s work in Ivory Coast likely apply, to varying degrees, across all countries where the ICC has investigations.

The problems cannot be explained by a lack of resources alone, but they are a factor. The ICC lacked the money to put a full-time staff member in Ivory Coast to provide information to the public and journalists. Making do with missions conducted from the court’s headquarters in The Hague contributed to the narrow reach of these efforts. And while a budget crunch cannot explain away the prosecution’s initial decision to focus on only one side, it has been a factor in allowing the situation to persist; the ICC prosecution has cited its need to focus on other investigations – and a lack of resources to be everywhere at once – to explain the prolonged delay in getting to other cases in Ivory Coast.

Even if court officials could have made different decisions in Ivory Coast, to apply the lessons from its work there across the countries where the ICC is working – and where it may work in future – it will likely need more resources.

While Canada may have allowed some budget increases to go through, its insistence on zero growth, like the insistence of other ICC member countries before it, risks distorting budget discussions. It moves these discussions toward an arbitrary bottom line, rather than where they need to be: firmly focused on whether the ICC has what it needs to make a difference where it matters, for victims and for communities that have borne the brunt of mass atrocity.

Member countries do need to scrutinize the court’s requests for resources and demand accountability for its use of funds. But as human-rights crises continue to pile up, the ICC’s mandate to hold abusers to account is too big to let the court fail, and yet the Canadian position risks leaving the court too small to succeed.

Military Group Takes on New Mantle
IOL News
August 16, 2015

A militant youth group linked to Ivory Coast’s ICC-indicted former president Laurent Gbagbo took on a new mantle this weekend, turning itself into a political party and pledging to work for peace.

The Congress of Young Patriots (COJEP) was set up 14 years ago by hardline youth leader Charles Ble Goude, who along with Gbagbo is awaiting trial in The Hague by the International Criminal Court for crimes against humanity during unrest in 2010-2011.

Renaming itself the Panafrican Congress for Justice and Equality but keeping the same initials, the new COJEP said in a statement it aimed “to fight for peace” while steering clear of extremists, and that it would not contest upcoming presidential elections.

Goude’s “Young Patriots” militia have been accused of perpetrating some of the worst atrocities in the bloody unrest that broke out after a general election in December 2010, claiming more than 3 000 lives in the once prosperous country.

A statement from Goude, sent from his cell in The Hague and read out to supporters at the founding meeting, said: “I call on all my strength for inclusive discussions between the government and opposition, and for peaceful elections.”

The first round of the presidential elections are set for October 25, and are seen as crucial for stabilising the country after the post-election crisis of 2010-2011, which was the last chapter in a decade of political and military crisis in the Ivory Coast.

Nogbou Hyacinthe, an academic, was named as executive secretary of the new party in Goude’s absence.

AFRICA

International Criminal Tribunal for Rwanda (ICTR)

Official Website of the ICTR

Chad

Growing Insecurity Leads to More Displacements in Lake Chad Region, Warns UN Officials
All Africa
August 6, 2015

The United Nations today reported further population displacement in the Lake Chad region owing to fear of attacks by Boko Haram and appeals by the Government of Chad for civilians to leave areas where ongoing military operations are being undertaken against the group.

“For a few weeks now, more than 40,000 people have been fleeing their villages for fear of attacks, without any belongings,” said the UN Humanitarian Coordinator for Chad, Thomas Gurtner.

“The Lake Chad islands still face sporadic attacks and the Government is considering relocating some additional 20,000 people to the mainland, therefore increasing vulnerability among displaced population and host communities,” he added.

On 3 August, an estimated 10,000 people fled to the locality of Koulkimé, some 20 kilometres from the town of Baga Sola, in the Lake Chad basin, bringing the total of internally displaced persons (IDPs) in the region to around 40,000, according to the latest update by the UN Office for the Coordination of Humanitarian Affairs (OCHA).

Overall, some 79,000 civilians have been forced to flee their homes since the beginning of the year, including refugees, returnees and IDPs.

The UN system is working with partners to implement immediate life-saving assistance to this new displaced population, as the area is prone to cholera outbreaks, Mr. Gurtner said.

The volatile security situation and the rainy season are limiting physical access, slowing humanitarian assessments and response. Despite these challenges, three spontaneous IDP sites near Baga Sola have been provided with basic supplies, food and wash kits.

According to OCHA, the humanitarian community is concerned with the growing trend of forced displacement of civilians in the region.

“As elsewhere in the Lake Chad Basin, which straddles four countries, and where people have been affected by violence, the humanitarian community calls on authorities to ensure that any measures taken to counter terrorism comply with the Member States obligations under international law, particularly international human rights law, international refugee law, and international humanitarian law,” it stated.

Chadian President Claims Boko Haram Leader Dead
All Africa
By Eugene Ndi
August 13, 2015

Chad’s president, Idriss Deby Itno, has claimed that Aboubakar Shekau is no longer the leader of the Boko Haram jihadist group.

At a press conference on the occasion of the 55th anniversary on Tuesday of Chad’s independence, President Deby said the Nigerian extremist group has a new leader.

He did not say what had happened to Abubakar Shekau, the declared leader of the group, but he said he had been replaced by a certain Mahamat Daoud who was ready to dialogue with the Nigerian government.

Speculation regarding Shekau’s ‘death’ is rife amongst countries involved in the war against the extremist group.

This speculation is further heightened by the fact that the ‘leader’ of the group has not appeared in Boko Haram’s videos of late.

NOT LAST LONG

“Boko Haram is decapitated. There are little groups (of Boko Haram members) scattered throughout east Nigeria, on the border with Cameroon. It is within our power to definitively overcome Boko Haram,” President Deby said.

The Chadian leader even declared that the Boko Haram war will not last long after the setting up of the regional force headquartered in N’Djamena. “It will be over by the end of the year,” he said.

Earlier, in March, President Deby had called on Shekau to surrender or be killed.

He claimed Chadian forces knew his hideout, and that if he refused to surrender, “he will suffer the same fate as his comrades.”

While claiming progress in the fight against the jihadists, who have repeatedly hit border areas of Cameroon, Chad and Niger, and wrought havoc in northeast Nigeria, Deby admitted that suicide bombers still posed a threat.

In the past few week, suicide bombers, many of them women, have staged several attacks in Nigeria, Cameroon and Chad.

The challenge, Mr Deby said, was to “avoid terrorist acts and that’s why we must organise at the regional level to prevent bomb-making materials and other explosives entering our countries”.

Where’s Shekau? Chad President messes with Boko Haram’s Mind
Reuters
By Alexis Akwagyiram and Julia Payne
August 14, 2015

If Chadian President Idriss Deby is to be believed, Abubakar Shekau, the bearded and bandoliered leader of Islamist militant group Boko Haram, is no more.

Given the many previous reports of Shekau’s demise, followed soon after by videos of him brandishing automatic weapons and spouting invective against the Nigerian state, analysts and diplomats are treating the claims with caution.

However, two factors are spicing up the normal guessing game that swirls around the leadership of the notoriously opaque group, which has killed thousands of people in its six-year campaign to establish an Islamic caliphate in northeast Nigeria.

First, Shekau – not known for being camera-shy – has not appeared on video for six months, raising the possibility that he has indeed been injured or killed by offensives during that time by Nigerian, Chadian and Cameroonian troops. And second, Deby has identified a successor.

Although little is known about the replacement, identified by Deby as Mahamat Daoud, it suggests that even if Shekau is not down and out, he may have a rival for control of an organization long suspected of being riven by factional divisions.

Besides the battlefield setbacks Boko Haram has suffered, disagreements over whether to entertain negotiations with Abuja or declare allegiance to jihadist groups such as Islamic State in Syria and Iraq are believed to have deepened those rifts.

“Boko Haram has always been something of a constellation of units, with its hardline leadership having only limited control or influence over some fighting units,” said Roddy Barclay, senior Africa consultant at Control Risks.

“Regional military pressure is likely to have fragmented militant command structures, though it remains uncertain whether a change in leadership has actually occurred.”

“HEAD CUT OFF”

The possibility remains that Deby, a wily regional operator who came to power in a 1990 military coup and who has survived several armed attempts to remove him, is trying to engineer internal blood-letting by promoting one faction over another.

“We have cut off Boko Haram’s head,” said Deby, who has turned Chad’s fight against Boko Haram into a personal duel with Shekau. “I think Boko Haram will be finished by the end of 2015.”

The new leader Daoud was open to the idea of talks with Abuja, Deby added.

What little is known about Daoud suggests he and Shekau do not see eye to eye, especially on the issue of the extreme violence that Boko Haram has meted out under Shekau’s leadership, diplomats and analysts said.

“It may be a tactic to sow disunity within Boko Haram,” one Abuja-based diplomat said. “This man, Daoud, has not been fighting or close to the Shekau group. He’s more of a learned cleric.”

Nigerian security analyst Fulan Nasrullah concurred, saying he understood Daoud to be around 38 years old and the son of an Arab man and Chadian mother renowned for his Islamic scholarship and loyalty to tenets laid down by sect founder Mohammed Yusuf.

Yusuf’s largely peaceful movement advocating sharia law and Islamic schooling — Boko Haram means “Western education is forbidden” in the local Hausa language — turned violent in 2009, and quickly morphed into a full-on insurgency after Yusuf’s death in police custody.

Since then, thousands have been killed and more than a million displaced by the militants who at the start of this year controlled an area the size of Belgium. Much of that territory has since been retaken by Chadian and Nigerian forces.

Nasrullah said Daoud had a significant support base and could bring hundreds of fighters with him if he jumped ship — as well as vital information about Boko Haram’s workings and the whereabouts of its top commanders.

“He could expose the money generation and transfer methods the group uses, reveal critical intelligence about the group’s inner structure, and maybe even offer up information as to how to kill Shekau,” he said.

“If Daoud is really seeking negotiations, the Nigerian government should hurry and take the offer

as having him on side could well be a game-changer.”

SCEPTICISM

Shekau’s last video appearance was in February, when a person claiming to be him — analysts believe he may have impersonators — threatened to disrupt presidential elections held the following month.

The group has released at least five videos since then, none purporting to show Shekau.

However, one source in the office of Nigeria’s National Security Adviser played down Shekau’s absence from the videos, and remained skeptical of Deby’s assertion that Shekau is dead, saying he “wouldn’t make too much of that statement”.

Femi Adesina, a spokesman for President Muhammadu Buhari, who came to power in March on promises of, among other things, tackling Boko Haram, said Abuja was open to talks if any faction with significant influence came forward.

“If genuine leadership of Boko Haram approaches the government for negotiation, the government will negotiate with them,” Adesina said.

Mali

Mali: UN Alarmed at Release of Human Rights Abusers; Warns De Facto Amnesty Contrary to International Law
UN News Centre
August 11, 2015

The United Nations human rights office expressed deep concern over the reported release of detainees in Mali suspected of involvement in, or formally charged with, serious abuses, including war crimes, terrorist acts and gross human rights violations.

Ravina Shamdasani, spokesperson for the Office of the UN High Commissioner for Human Rights (OHCHR), said: “We understand that a number of those released on 16 July 2015 were implicated in such crimes and are concerned that further releases may be imminent.”

Any measure that would, de facto, amount to amnesty would be contrary to international law, and in violation of the commitment by the parties to the Peace and Reconciliation Agreement.

“We emphasize the critical importance of the fight against impunity and the need to investigate and prosecute all gross violations of human rights, to ensure accountability,” she underscored.

Amnesties that prevent the prosecution of individuals who may be legally responsible for war crimes, crimes against humanity and gross violations of human rights are inconsistent with States’ obligations under various sources of international law.

“We urge the Government to ensure that any releases made in the context of confidence-building measures are in full conformity with international law, and to take all measures to ensure the investigation and prosecution of all serious crimes under international law,” the spokesperson continued.

“The judicial authorities in Mali should pursue the investigation and prosecution of all alleged perpetrators of war crimes, genocide, crimes against humanity and other gross violations of human rights, and ensure that the rights of victims to an effective remedy are promoted and protected.”

OHCHR also condemned the atrocious attacks on civilians in the Byblos hotel in Sevaré in Central Mali between Friday and Saturday last week.

“Such attacks, which appear designed to provoke a state of terror and intimidate, are in violation of national and international law. We call on the international community and neighbouring states to give all possible assistance to Mali in its ongoing efforts to restore peace, security and the full respect for human rights,” Ms. Shamdasani concluded.

Mali: The Deadliest Peacekeeping Mission In The World
International Business Times
By Erin Banco
August 15, 2015

Gunmen dressed in plain clothing ran up to the Byblos Hotel in the central Malian town of Sevare last week, opening fire at the few government soldiers who were protecting its entrances. The gunmen barged through the doors of the hotel with one mission in mind: to take as many people hostage as possible. Some hotel employees and visitors hid in cupboards, while others were detained by the militants. The siege lasted more than 24 hours and ended when the military stormed the hotel. In all, 12 people were killed, including civilians and members of the United Nations peacekeeping mission.

The attack on the hotel in Sevare was just one of many this year that have focused not only on civilians and government soldiers but also on members of the U.N. peacekeeping mission in the country. Last month, six U.N. peacekeepers were killed in an attack by Ansar Dine rebels in Timbuktu, an area that the rebel group moved into in 2012 during the political unrest in the country. Ansar Dine, designated as a terrorist organization by the U.S. in 2013, formed during the Malian political turmoil of 2012. All the peacekeepers attacked were from neighboring Burkina Faso.

The U.N. has reported 54 of its peacekeepers have been killed in Mali this year, making it the world’s deadliest peacekeeping mission at present. The mission in Mali has the highest average yearly fatality rate for all peacekeeping missions, according to U.N. figures. The organization just approved funding for one more year of the mission, and things are already off to a rocky start under the new accord. The force is now dealing with new, unprecedented threats in the southern part of the country, which until recently had remained largely muted.

Mali’s deteriorating security situation and tough terrain constitute conditions similar to those peacekeepers have faced in other countries, including Sudan, Somalia and the Democratic Republic of Congo. Between 2001 and 2015 to date, there have been 255 peacekeeper deaths in Congo alone. From 1960 to 1964, there were 249 peacekeeper deaths in that country. Meanwhile, 220 peacekeepers have died during the ongoing African Union/U.N. hybrid operation in Darfur, Sudan.

“We are working in a very difficult environment, an environment with asymmetric threats such as those posed by terrorists and those posed by rebels that engage in drug trafficking,” said Radhia Achouri, a representative of the U.N. peacekeeping mission in Mali.

As of last month, the U.N. mission in Mali consisted largely of about 9,100 military personnel deployed at 12 different locations throughout the country. About another 1,000 people are deployed as police. The members of the mission come from 68 different countries. The goal of the mission is to support, monitor and supervise the implementation of ceasefire agreements and to protect civilians.

Mali has been mired in violence since 2012 when ethnic Tuareg rebels overthrew the government. The ousting of President Amadou Toumani Toure created a vacuum that allowed for the rise of extremist rebel groups connected to al Qaeda in the Islamic Maghreb (AQIM), a branch of the broader al Qaeda network. The government of Mali requested international help, and French forces intervened, followed by the U.N. peacekeeping mission. Since then, the government and rebels have attempted to sign peace agreements, but talks have broken down each time. The Malian government and a semimoderate ethnic Tuareg rebel umbrella group signed a peace deal in Bamako in June, but it is unclear whether that pact will hold given the recent violence in the country.

There are dozens of rebel groups in Mali, some connected to the Tuareg rebel movement, others connected to AQIM. Several of the Tuareg rebel groups dominant in the north signed the recent peace deal with the government, with both sides promising to put down their weapons. But other groups, specifically those connected to AQIM, made no such promise and are now — more than at any time since the beginning of the year — attacking convoys and outposts of the Malian military and the U.N. peacekeeping mission in the country.

“Mali’s governmental presence is not particularly robust in the north,” said Hilary Matfess, a researcher with the Johns Hopkins University School of Advanced International Studies. “AQIM might be focusing its efforts on the most robust military security presence there, which is the U.N. mission.”

The northern part of Mali is still an area of concern for Malian officials, but the southern part is also becoming more violent, especially within the past two weeks as Ansar Dine has ramped up its attacks near the capital. The group is associated with the Saudi-inspired Salafist/Wahhabist brand of Muslim ideology, even though most people in Mali identify with the Sufi sect — often defined as a faction of Islam that follows the inner, mystical aspects of the religion.

Ansar Dine attacked towns on Mali’s borders with Ivory Coast and Mauritania last week, and leaders of the group say they are planning more raids. The group’s new threat prompted Ivory Coast forces to carry out a mission inside Mali Wednesday in an attempt to track down rebels who are believed to be hiding in the Sama forest.

Statements by the group’s leaders and the attacks carried out by rebels within the past week mimic those of groups such as Boko Haram, the Nigerian militant group that is trying to expand from its land in the country’s Borno state to Chad and Cameroon.

Ansar Dine and other extremist groups are only growing stronger, especially with the growing drug- and human-trafficking networks in the region. Each year, thousands of migrants from places such as Burkina Faso, Niger and Sierra Leone, as well as Mali, pay as much as $500 apiece for smugglers to take them north to Libya, where they get on a boat and head to Europe. This year, a record number of migrants have attempted to make the journey to Europe, the U.N. said last month.

Given the security difficulties in the country, the U.N. peacekeeping mission in Mali has frequently asked Geneva for better equipment. In a recent U.N. report, the head of the Mali mission said his forces are frequently targeted by armed groups and his troops do not have the necessary weapons to ward off attacks.

“We need to be fully capable of facing this environment in all aspects,” Maj. Gen. Michael Lollesgaard, the commander of the peacekeeping mission in Mali, said in the report. “That means capability to face hostile armed groups hiding amongst the population and to face challenging climates, geography and infrastructure.”

Mali: UN Condemns Violations of Ceasefire in Kidal Region
UN News Centre
August 17, 2015

Fighting erupted over the weekend in northern Mali’s Kidal region between armed groups, breaking the ceasefire and prompting the United Nations Multidimensional Integrated Stabilization Mission in the country, known as MINUSMA, to issue a firm condemnation.

“Pending the conclusions of the investigation team today dispatched to Anefis, MINUSMA condemns in the strongest terms these acts, perpetrated in blatant violation of ceasefire agreements and of the Agreement for Peace and Reconciliation in Mali”, to which both rival groups – the National Movement for Liberation of the Azawad (MNLA) and the Plateform Coalition – are signatories.

Fighting resumed on August 15 in the town of Touzek Oued, located at the south-east of Kidal and between Tabankort and Anefis, also in the North Mali, points out a press release.

“The international community, as well as the population, is concerned by the increasing number of these violations, which could hinder the progress made towards a stable and lasting peace in Mali.

MINUSMA reminded the parties that they will have to answer for their actions before the Security Council, which, on 29 June, said that it would consider targeted sanctions against those who obstruct or threaten the implementation of the Peace Agreement.

Urging the armed groups to immediately cease fighting, the Mission, adds the statement, stresses that it will not hesitate to take “all necessary measures” to protect civilians, in accordance to its mandate and rules of engagement.

U.N. Deploys Troops Around Northern Mali Town After Clashes
Reuters
By Tiemoko Diallo and Adama Diarra
August 18, 2015

Mali’s U.N. peacekeeping mission deployed troops around a northern separatist stronghold on Tuesday, seeking to prevent an escalation of clashes between rebels and pro-government militias that threaten to torpedo a peace deal.

The separatists, led by Tuareg tribesmen, and the pro-government Platform militias signed the U.N. sponsored peace accord in June. Its aim was to pacify the north and allow the Malian army to focus on tackling Islamist militants in the west African country.

The two sides have traded blame for the clashes, which began on Saturday. On Monday, Platform fighters seized the town of Anefis from the separatist Coordination of Azawad Movements (CMA), raising the prospect they could advance on the town of Kidal, the group’s main stronghold.

“These acts constitute a flagrant violation of the ceasefire and the peace accord,” the U.N. mission, MINUSMA, said in a statement.

MINUSMA called on both sides to immediately return to the positions they occupied on Aug. 15, and said it was putting in place a security zone extending 20 km (12 miles) around Kidal to prevent a spread of the violence and to protect civilians.

“In the case of a violation of this security zone by Platform elements or those affiliated with the Platform, MINUSMA will react in accordance with its mandate,” the mission said.

There are over 9,000 U.N. peacekeepers in Mali, 90 percent of them in the north. The U.N. force did not specify how many troops were deployed around Kidal.

The move was criticized by the separatists and the pro-government militia, while the Malian government called on the U.N. mission to remain within its mandate of protecting the civilian population in all parts of the country.

“Any unequal treatment will produce perverse effects that would harm the search for peace,” government spokesman Choguel Kokala Maiga said on state television.

No clashes were reported on Tuesday. A Reuters witness said CMA fighters were reinforcing positions around Kidal and deploying heavy weapons.

Fahad Ag Almahamoud, the secretary general of the GATIA pro-government militia, slammed the U.N. mission for handing part of Mali’s territory to a rebel group.

“We do not understand this decision by MINUSMA,” he said.

Mohamoud Ag Ghaly, secretary to the president of the CMA, said the group had no need of U.N. protection and had already repulsed an effort to take Kidal.

He said the U.N. mission was failing to protect civilians in northern towns occupied by the militia and the Malian army, including Menaka and Anefis.

Neighboring Niger had been due to host talks from Wednesday to ease tensions but government sources in Niamey said the discussions were canceled after representatives of the armed groups failed to show up, citing the latest violence.

Mali says it has asked the African Union and the United Nations to investigate the ceasefire violations. MINUSMA on Monday threatened to apply targeted sanctions against those found to be behind the violence.

The West African nation is seeking to break a decades-long cycle of Tuareg uprisings, the most recent of which allowed Islamist groups, some linked to al Qaeda, to seize the desert north in 2012.

A French-led intervention a year later scattered the Islamists but failed to eradicate them, and Islamist violence is once more on the rise, spreading further south.

Mali Expresses Reservation Over MINUSMA’s Safe Zone Around Kidal
Star Africa
August 19, 2015

The Malian government expressed hesitation about the decision by the UN Mission in Mali (MINUSMA) to create a safe zone around Kidal, noting that it rather preferred MINUSMA “remains in its role of protection of the population and of all people, in all exposed areas, like Kidal, at the same security threats”.

Choguel Maiga, government spokesman is quoted by statement read on Tuesday evening on national television, as saying that “any unfair treatment will produce negative risk to the search for peace and harmony”.

MINUSMA has since Monday decided to set up a safety zone around Kidal city “to protect the civilian population”.

Since Saturday, the Kidal region has been experiencing renewed violence marked in particular by deadly clashes between the Coordination of Azawad Movements (CMA) and Gatia, a pro-government militia.

EUROPE

The Court of Bosnia and Herzegovina, War Crimes Chamber

Official Website [English translation]

Second-Instance Verdict Sent Out in the Case of Predrag Milisavljević et al.
Court of Bosnia and Herzegovina
August 7, 2015

On July 23, 2015, the Appellate Division Panel of Section I for War Crimes of the Court of Bosnia and Herzegovina sent out the second-instance verdict of June 2, 2015 in the case of Predrag Milisavljević et al., which, in their entirety, refused as ill-founded the appeals filed by the Prosecutor’s Office of Bosnia and Herzegovina and by defense counsel for the accused Predrag Milisavljević, from the verdict issued by the Court of Bosnia and Herzegovina No. S1 1 K 011128 12 Krl of October 28, 2014, whereas the appeal filed by defense counsel for the accused Miloš Pantelić was partly granted, so the verdict issued by the Court of Bosnia and Herzegovina No. S1 1 K 011128 12 Krl was modified in the decision on punishment in the manner that the accused Miloš Pantelić, concerning the criminal offense of Crimes against Humanity, is now sentenced to 15 (fifteen) years of imprisonment. The first-instance verdict was upheld in the remaining part.

The first-instance verdict of the Court of BiH found the accused Predrag Milisavljević and Miloš Pantelić guilty that by the actions described in Section 1 of the Operative Part of the Verdict they committed the criminal offense of Crimes against Humanity under Article 172(1)h) as read with Subparagraph a) of the CC BiH, all in conjunction with Article 29 of the CC BiH, for which they were sentenced to 20 (twenty) years of imprisonment each. Pursuant to Article 56 of the CC BiH, the time the accused spent in custody was credited towards the sentence of imprisonment.

The verdict acquitted the accused Predrag Milisavljević, Miloš Pantelić and Ljubomir Tasić of the charges that, under Article 284, Subparagraph c), of the CPC BiH, by their actions under individual counts of the indictment they committed the criminal offense of Crimes against Humanity.

The Prosecutor filed an appeal because of the erroneously established state of facts in relation to the acquittal, specifically in relation to the accused Miloš Pantelić for the actions described in Sections 4, 5, 6, 7 and 8 of the Operative Part of the Verdict, and in relation to the accused Predrag Milisavljević and Ljubomir Tasić for the actions described in Section 8 of the Operative Part of the Verdict. The Prosecutor’s Office filed its appeal because of the sentencing decision in relation to the accused Predrag Milisavljević and Miloš Pantelić, proposing that the appellate panel grant the appeal, revoke the challenged verdict in the foregoing section and order a retrial, or modify the challenged verdict concerning the conviction, by imposing on the accused Predrag Milisavljević and Miloš Pantelić a heavier sentence.

Defense counsel for the accused Predrag Milisavljević filed his appeal because of the essential violation of criminal procedure provisions, violations of criminal code, erroneously and incompletely established facts and the sentencing decision, as well as property claim, moving the appellate panel to grant the appeal and modify the first-instance verdict in terms of conviction, and acquit the accused Milisavljević of the charges concerning the criminal offense of Crimes against Humanity under Article 172(1)h) as read with Subparagraph a) of the CC BiH, all in conjunction with Article 29 of the CC BiH, or to revoke the first-instance verdict and order a retrial, and issue a decision to terminate custody of the accused Milisavljević.

Defense counsel for the Miloš Pantelić filed his appeal because of the essential violation of criminal procedure provisions and the erroneously and incompletely established state of facts, moving the appellate panel to revoke the challenged verdict and hold a retrial, with a reproduction of the already adduced evidence by re-examining certain witnesses, and after that render an acquittal.

On June 2, 2015, the Appellate Panel held a public session at which the parties orally presented the grounds for appeal, while maintaining their written submissions and arguments.

Having reviewed the challenged verdict within the bounds set in the appeal, the Appellate Panel issued the foregoing decision.

Milun Kornjača Sentenced to 7 Years of Imprisonment
Court of Bosnia and Herzegovina
August 7, 2015

Following a public trial held before the Appellate Division Panel of Section I for War Crimes of the Court of Bosnia and Herzegovina, on August 6, 2015 the Appellate Panel publicly pronounced the second-instance verdict, finding the accused Milun Kornjača guilty of the criminal offense of Crimes against Humanity under Article 172(1)(h) (Persecution), as read with Subparagraph (e) of the Criminal Code of Bosnia and Herzegovina, all in conjunction with Article 180(1) of the CC BiH and Article 29 of the same Code.

In that regard, the Court sentenced the accused Milun Kornjača to 5 (five) years of imprisonment. Taking into account the previously imposed sentence of imprisonment of 5 (five) years for the committed criminal offense of Crimes against Humanity by Persecution under Article 172(1)h) of the CC BiH as read with Article 180(1) of the CC BiH and Article 29 of the CC BiH, under the verdict of the Court of BiH No. S 1 1 K 003541 10 Kri of May 21, 2014, upheld in its convicting part by the Appellate Panel’s verdict No. S1 1 K 003541 14 Krž 12 of March 10, 2015, the Court ultimately imposed on the accused Milun Kornjača a single sentence of 7 (seven) years of imprisonment.

Pursuant to Article 56 of the CC BiH, the time the accused Milun Kornjača spent in custody shall be credited towards his sentence of imprisonment.

Pursuant to Article 188(4) of the Criminal Procedure Code of Bosnia and Herzegovina, the accused Milun Kornjača is relieved of the obligation to reimburse the costs of the criminal proceedings, which will be covered from within the Court’s budget appropriations.

The accused Milun Kornjača was found guilty because during the period from mid-April 1992 to late May 1992, in the Čajniče municipality, within a widespread and systematic attack of the Serb Municipality of Čajniče TO, members of the Plavi orlovi (Blue Eagles) unit and the Čajniče police station officers, helped by paramilitary formations coming from Serbia and Montenegro, directed against the non-Serb civilians in the Čajniče municipality, knowing of such an attack, as Commander of the Plavi orlovi unit he ordered and himself perpetrated the persecution of non-Serb civilians in the Čajniče municipality on ethnic and religious grounds, by detention committed with the intention to inflict immense suffering or serious physical or mental injury or health violation. The accused Milun Kornjača is acquitted of the charges that, even though after the murder of detained persons he learned from those present on the premises of the Čajniče TO Headquarters that a certain member of the Plavi orlovi unit had committed the killing of detained persons at the Lovački dom na Mostini (Hunting Lodge), he took no action that might have been expected from him in line with his rights and duties as Commander of the Plavi orlovi unit to punish the person who killed the detained persons.

The Court also issued a decision that the prohibitive measures, previously imposed on the accused Milun Kornjača, and extended by Court’s Decision No. S1 1 K 003541 10 Kr1 of May 21, 2014, shall remain in force until the accused is committed to serve his sentence of imprisonment.

The Suspect Mato Baotić ordered into Custody
Court of Bosnia and Herzegovina
August 13, 2015

Deciding upon a Motion filed by the Prosecutor’s Office of Bosnia and Herzegovina, the Court of Bosnia and Herzegovina issued, on August 12, 2015, a decision granting the Prosecution’s Motion and ordering the suspect Mato Baotić into one-month custody. Pursuant to the referenced decision, custody may last up until September 10, 2015, or until a new decision of the Court.

Having reviewed the presented evidentiary materials, the Court concluded there is a grounded suspicion that the Suspect committed the criminal offense as charged, and ordered the Suspect into custody as there are circumstances pointing to a risk of flight, and a justified fear indicating that, if released, the Suspect will hinder the criminal proceedings by influencing the witnesses.

Mato Baotić is suspected of having committed the criminal offense of War Crimes against Civilians in violation of Article 173(1)(e) of the Criminal Code of Bosnia and Herzegovina.

Indictment Confirmed in Ivan Kraljević et al. Case
Court of Bosnia and Herzegovina
August 14, 2015

On August 6, 2015, the Court of Bosnia and Herzegovina confirmed the Indictment charging the Accused Ivan Kraljević, Mate Jelčić, Slavko Skender, Stojan Odak, Nedjeljko Matić and Vice Bebek with the criminal offense of Crimes against Humanity and the criminal offense of War Crimes against Prisoners of War, and charging the Accused Vinko Radišić and Dragan Miloš with the criminal offense of War Crimes against Prisoners of War.

The Indictment alleges that, in the period from late April 1993 to late March 1994, in the Military Investigation Prison in Ljubuški, as part of a widespread and systematic attack of the HVO and the Military Police of the HVO against the Bosniak civilian population and prisoners of war from the Municipalities of Stolac, Čapljina, Mostar, Prozor, Livno and Jablanica, and Municipalities of Maglaj and Žepče in Bosnia, knowing of the attack and that with their act or omission they participated in it, Ivan Kraljević, Mate Jelčić and Slavko Skender, who each carried out the duty of the warden of Ljubuški Military Investigation Prison in different periods, and Stojan Odak, Nedjeljko Matić, Vice Bebek, Vinko Radišić and Dragan Miloš, as members of the HVO Military Police and guards of the Ljubuški Military Investigation Prison, knowingly participated in a Joint Criminal Enterprise with the common plan of enhancing and implementing the system of detention and abuse.

International Criminal Tribunal for the Former Yugoslavia (ICTY)

Official Website of the ICTY

Karamarko says Serbian Policy Based on Myths and Half-Truths
dalje
August 5, 2015

The Croatian Democratic Union (HDZ) leader Tomislav Karamarko said on Wednesday in Knin that August 5 1995 was one of the greatest days in Croatia’s history and dismissed Serbia’s criticism which he said was based on the policy fostered by myths, half-truths and untruths.

As for Serbian comments on the exodus of the Serbs from Croatia, there are relevant documents, proving that the departure of the Serbs from Croatia was planned by the team led by (Serbian leader Slobodan) Milosevic while Croatia’s President Franjo Tudjman called on the Serbs to remain in Croatia, Karamarko said.

“Their criticism is their business and also a regretful thing. It’s high time they addressed their own past and I would like see them say something about a Greater Serbia idea which Milosevic intended to implement,” the Croatian Opposition leader said.

Karamarko recalled that Operation Storm put an end to the implementation of that idea.

The implementation began exactly in Knin in 1990 with the establishment of a quasi-state “Serb Krajina” that had terrorised the Croatian people for five years, the HDZ leader added.

Thousands flocked in Knin for central celebrations of Croatia’s Victory Day observed on August 5, in memory of Operation Storm and the liberation of that southern Croatian town on August 5 1995.

Serbia’s Prime Minister Aleksandar Vucic said on Tuesday that Croatia should be ashamed of “Storm” and that Serbia would no longer be silent about that offensive which it perceived as “a horrible crime”.

Addressing a commemoration held in the northern town of Sremska Raca in memory of Serbs killed and expelled from Croatia, Vucic said that August 5, 1995 was one of the saddest days in the recent Serbian history.

Operation Storm was launched at 5am on August 4, 1995, and within the following 84 hours 10,400 square kilometres or 18.4 per cent of Croatia’s territory was liberated. A 20-metre-long Croatian flag was displayed on the fortress in Knin, the heart of the Serb rebellion, at noon on August 5.

About 200,000 soldiers and police took part in the biggest operation of the Homeland War, of whom nearly 200 were killed and over 1,400 wounded.

Operation Storm marked the end of the war in Croatia, created conditions for the peaceful reintegration of the eastern Danube River region, spared the northwestern Bosnian town of Bihac from the fate of Srebrenica, and enabled the return of refugees and displaced persons.

The legitimacy of Operation Storm has been proved before the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague. On November 16, 2012, the Appeals Chamber reversed the Trial Chamber’s convictions of General Ante Gotovina, commander of the Split Military District, and General Mladen Markac, special police commander, and ordered their immediate release. The generals were in the ICTY’s custody on charges of involvement in a joint criminal enterprise and excessive shelling of Knin, Gracac, Obrovac and Benkovac.

Bosnian Serb Forces Not Behind Wartime Mosque Destruction – Witness
Institute for War & Peace Reporting
By Daniella Peled
August 14, 2015

Engineer tells court that demolitions were carried out in a haphazard rather than systematic way.

A defence witness for former Bosnian Serb army chief Ratko Mladic told Hague judges this week that the wartime destruction of mosques was due to collateral damage or plain vandalism, and was not part of a deliberate policy.

Dragic Gojkovic, a former engineer with the Bosnian Serb army (VRS), authored a report in which he concluded that army units under Mladic’s command were not involved in the destruction of buildings outside active combat zones.

The defence had enlisted Gojkovic to contest the findings of prosecution witness Andras Riedlmayer, an expert on Islamic architecture, who testified two years ago about the numerous mosques and Catholic churches destroyed during the conflict.

Mladic, commander of the Bosnian Serb army from 1992 to 1996, is charged with the “destruction of cultural monuments and sacred sites” in relation to 11 Bosnian municipalities.

Prosecutors allege that Mladic is responsible for crimes of genocide, persecution, extermination, murder and forcible transfer which “contributed to achieving the objective of the permanent removal of Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territory”. He is accused of planning and overseeing the 44-month siege of Sarajevo that left nearly 12,000 people dead, as well as the massacre of more than 7,000 men and boys at Srebrenica in July 1995.

At the start of his testimony, Gojkovic made clear that his own expert report was based on the one that Riedlmayer submitted to the tribunal.

He complained that he had only been given seven hours to complete the “huge task” of writing his report, but that he had studied Riedlmayer’s data “very carefully”.

However, Gojkovic said that after he examined the most “characteristic” examples of the 94 buildings cited in Riedlmayer’s report, it was clear that their destruction had not been carried out by experts.

“I looked at their demolition, which was done in what I would describe as a criminal way without any particular model, system or method,” he said.

The commonest demolition method was to target the minaret, he said, which did not make structural sense.

“In most cases when mosques in BiH [Bosnia and Herzegovina] were demolished, it was minarets that were attacked first and foremost, and too much explosive was being used – enough to destroy the entire building,” he said. “Now it depended on where the explosives were placed. A minaret would fall either on the building itself or to the side. Secondly, in most cases when minarets were destroyed, the roofs were damaged too. Also in many cases, after the building was destroyed, it was also torched; or rather it is very difficult to ascertain whether buildings were burned before or after the demolition.

“At any rate, explosives were placed inside the minaret and at the level of the roof – if I can put it that way – so that the explosives would usually damage the roof or blow it away, and then due to the weather conditions, rain, snow etc, you don’t know what was destroyed by explosions and what was due to the passage of time and the weather conditions. On the basis of photographs only, it is hard to establish that.”

Prosecuting lawyer Arthur Traldi focused his cross-examination on undermining the witness’s entire report. He noted that although Gojkovic testified that there was a great deal of information missing from Riedlmayer’s report, he had not included any additional information in his own study.

“I only dealt with the way in which buildings were demolished. Riedlmayer dealt with spirituality, history and whatever else,” Gojkovic replied.

Traldi asked him to point out one new piece of information in his report that had not been in Riedlmayer’s document. The witness was unable to do so.

Traldi then turned to the witness’s contention that ten mosques were destroyed during combat, while 84 were destroyed after the Bosnian Serb army withdrew from the area in queston.

He accused Gojkovic of presenting the trial chamber with a “false dichotomy” by excluding information showing that some buildings were destroyed after the fighting was over but at a time when “the VRS maintained clear control of the area”.

The witness repeated that he had only used the information contained in Riedlmayer’s report.

The prosecution said it was unacceptable that he had no other supporting evidence.

“You have offered the trial chamber, in the body of your report, unsupported conclusions which you do not explain and which, you now testify, you do not know whether they are true or not,” Traldi said.

The witness acknowledged that he may have “made some errors” but maintained that his data was “90 per cent correct”.

Traldi turned to specific examples of destroyed mosques, including in Novoseoci in the Sokolac municipality and Sanica in Kljuc.

He noted that in Novoseoci, the trial had heard evidence that the village had been “cleansed” and that “the male residents were massacred”.

“Did you consider evidence like that in determining whether to list something as during combat operations or after ‘withdrawal’?” he asked.

Gojkovic repeated that he had only drawn on the evidence set out in the prosecution report and had “looked at the techniques, the manner and proportions of the building, the manner in which the building was demolished”.

He added that throughout the war, the Bosnian Serb army would have remained in liberated areas for between five and ten days before handing over to the civilian authorities.

Once again, Traldi asked how the witness had been able to judge whether the army had withdrawn or not.

Turning to the example of the Sanica mosque, destroyed on June 26, 1992, Traldi asked, “Did you consider the Sanica mosque as having been destroyed during combat operations or after VRS withdrawal?”

The witness was unable to answer.

“What I’m putting to you, sir, is that [in] coming to this conclusion you have essentially made numbers up,” the prosecutor said. “You have no basis for it, and you are providing the trial chamber information that you have no basis for providing. That’s the truth right?”

The witness denied this.

Traldi now turned to the conclusion which Gojkovic drew in his report that “the destruction of these cultural sites was an uncontrolled spate, not part of the chain of command”.

“So just to make sure I understand your evidence, it’s your evidence that violence committed against every Muslim and Croat cultural site that either you or Mr. Riedlmayer looked at in these 12 different municipalities – different areas of Bosnia at different times – was either some sort of grassroots movement of people desecrating mosques and churches or a coincidence,” Traldi said. “Is that right?”

“Precisely,” the witness responded.

The prosecutor asked whether Gojkovic had studied any of the comments that wartime Serb leaders had made regarding mosques and churches.

The witness said he personally believed there was no need to do so, but that he had spoken to Dragan Davidovic, the Republika Srpska (RS) minister for religious affairs, at the end of the war.

“He claimed to me that the leaders of the Bosnian Serbs did not take part in this [destruction]”, Gojkovic said, adding that Davidovic had also publicly condemned the “criminal” 1993 demolition of the Ferhadija mosque in Banja Luka.

Traldi then read from an article which appeared in the New York Times on August 21, 1992 and which included a quote from Simo Drljaca, the then chief of police in Prijedor.

Drljaca was shot dead in 1997 during an attempt to arrest him for war crimes.

“‘With their mosques, you must not just break the minarets, you’ve got to shake up the foundations because that means they cannot build another. Do that and they’ll want to go, they’ll just leave themselves,'” Tradli quoted Drljaca as saying. “This is not the sort of statement that you would have considered in coming to your conclusion that the Bosnian Serb authorities were disconnected from the destruction of mosques, is it?” he asked.

The witness said that Drljaca “was certainly an extremist” but that his comments did not represent the views of all RS leaders.

Traldi put it to the witness that he had in fact “failed to consider statements by actual authorities, and relied on one conversation you had with a gentleman named Davidovic in coming to this conclusion”.

The witness denied this, going on to emphasise that Bosnian Muslims and Croats had also served under him in the VRS, and that he and his commanders had “never dreamed” of demolishing cultural or religious sites.

“Do you think that I as commander would be destroying the buildings of soldiers who are waging war together with me? Does that seem logical to you?” he asked.

The trial will continue with the testimony of Mladic’s wife, Bosiljka Mladic.

Mile Mrksic Dies in Detention
inSerbia
August 17, 2015

Former commander of the Republic of Serb Krajina Army general major Mile Mrksic died in the detention facilities in Portugal where he was serving the sentence pursuant to the ICTY ruling, Radio Television of Serbia reported.

Mrksic’s daughter Marija said in the letter for the media that her father was transferred to the prison hospital ward on July 22 due to poor health and that the doctors diagnosed him with lung cancer.

Serbian Deputy Prime Minister Rasim Ljajic announced on Saturday that he will ask for immediate release for treatment in Serbia in case of Mile Mrksic, who was transferred to the Lisbon prison in 2012.

ICTY sentenced Mrksic and several more Serbs in 1995 for mass murder of over 260 people at Ovcara in the vicinity of Vukovar. Mrksic willingly surrendered to the court on May 15, 2002.

The trial began in October 2005 and the ICTY Trial Chamber pronounced the verdict against Mrksic on September 27, 2007, sentencing him to 20 years of imprisonment for aiding and abetting torture, brutal treatment and murder of 194 Croatian inmates at a farm in Ovcara on November 20, 1991.

Domestic Prosecutions In The Former Yugoslavia

David Schwendiman chief prosecutor of special court for KLA war crimes
InSerbia News
By TANJUG, Kosovapres
August 10, 2015

US lawyer David Schwendiman will be the chief prosecutor of the new special war crimes court for members of the so-called Kosovo Liberation Army (KLA), Pristina-based news agency Kosovapres reported.

As of August 2014, Schwendiman has been the lead prosecutor of the European Union’s Special Investigative Task Force on Kosovo, whose mandate is to conduct an independent criminal investigation into the war crime and organized crime allegations contained in the CoE report of January 2011 by Senator Dick Marty, he has excellent knowledge of the crimes committed in the former Yugoslavia, and he has also participated in war crimes investigations in many world areas, the agency said.

From 2006 to 2009, Prosecutor Schwendiman served as an international prosecutor in the Special Department for War Crimes of the Prosecutor’s Office of Bosnia-Herzegovina (BiH). In this role, he investigated and prosecuted war crimes committed during the 1992-95 conflict. From late 2007 until the end of 2009, he was one of four Deputy Chief Prosecutors of BiH and oversaw the Special Department for War Crimes.

Kosovo Serb Leader Hospitalized Due to Hunger Strike
Yahoo News
August 15, 2015

A top Kosovo Serb politician detained over suspected war crimes against ethnic Albanians has been hospitalized after his health deteriorated from a hunger strike, a medical official said Saturday.

Oliver Ivanovic, who is being tried by an EU tribunal in northern Kosovo for war crimes allegedly committed in 1999-2000, began a hunger strike on August 7 to protest against the court’s decision to extend his detention. He has been held since his arrest in January 2014, and the court has rejected his request for release several times.

“His life is not endangered at this moment, but his health has deteriorated over the hunger strike and he is refusing to receive” treatment, Milan Jakovljevic, head of the medical team that admitted Ivanovic to hospital, told reporters.

“It is necessary to keep him in the hospital” for the time being, he said.

Last week the EU court rejected Ivanovic’s latest request for a provisional release, despite the Serbian government’s guarantees that Ivanovic would be reachable and stand trial.

Serbian Prime Minister Aleksandar Vucic called the court’s decision “senseless” and it was “aimed at further humiliation of Kosovo Serbs”.

The 62-year-old Ivanovic, who is considered a political moderate, is the first senior Kosovo Serb official to be charged and tried by the European Union Rule of Law Mission (EULEX) on suspicion of war crimes against ethnic Albanians.

Ivanovic, a former Serbian secretary for Kosovo, pleaded not guilty in August 2014 at the start of his trial, which is due to resume on September 10.

After the 1998-1999 Kosovo war, Ivanovic became a key interlocutor with NATO, the UN and later the EU and was seen as backing dialogue with the Kosovo Albanian community.

However, he was also among the organisers of a now-disbanded Kosovo Serb group of vigilantes known as “Bridgewatchers”, whose members were suspected of taking part in violence against ethnic Albanians.

Some 120,000 ethnic Serbs live in Kosovo, which declared independence from Serbia in 2008 and has about 1.8 million inhabitants, most of them ethnic Albanians.

Kosovo has been recognised by more than 100 countries, including the United States and a majority of the EU states.

NGO in Serbia Files War Crimes Charges Against Policemen Over Slaughter of Albanian Women and Children
dtt-net
August 17, 2015

An Belgrade NGO has raised war crimes charges against two members of two wartime Serb policemen over slaughter of 53 Albanian civilians (24 women and 23 children) during the 1998-1999 war in central Kosovo.

The Humanitarian Law Center (FHP) said it filed charges on Monday against two unidentified former policemen for the crime in the village of Old Poklek (alb. Pokleku i Vjetër), Gllogovc municipality on 17th of April 1999.

The NGO said the suspects were members of the 86th Detachment of the Special Police Unit of Serbia’s Interior Ministry. Two of its commander are also charged but “of not preventing the crime and not punishing the perpetrators.”

“…one of the police officers smashed the window of the room where the women, children and the elderly were, opened the door violently and threw a bomb into the room, which exploded immediately. After several minutes, the same police officer came into the room to check whether there were any survivors. He instantly killed the ones who were still alive, using an automatic rifle,” the NGO wrote in a statement.

“After having killed almost all the civilians in the house, the police officers took two cans of petrol and burned the room where the bodies of the killed civilians were. Four persons, among them a child of two, who had survived the bombs and shooting but had not left the room on time, were burned alive,” it wrote, explaining that most of the children were less then seven years old.

The youngest baby killed was 10 month-old. Three persons survived and the remains of three others are still missing.

Convicted Serb War Criminal Mrksic Dies
Yahoo News
By AFP
August 18, 2015

A former Serb army commander serving a 20-year sentence for his role in the massacre of Croats during the Balkans wars has died in Lisbon at the age of 68, the Portuguese government said Tuesday.

Mile Mrksic, a former officer in the Yugoslav army (JNA), was convicted in 2007 by the International Criminal Tribunal for the Former Yugoslavia (ICTY) for aiding and abetting the torture and murder of nearly 200 civilians in Vukovar in eastern Croatia in 1991.

His sentence by The Hague-based UN court was upheld on appeal in 2009, and he was transferred in 2012 to a high security prison in Lisbon.

Mrksic died on Sunday of a terminal illness in a hospital in the Portuguese capital, a justice ministry spokesman told AFP, without elaborating.

The capture of Vukovar by the Yugoslav army and Serb rebels in 1991 is considered a pivotal event at the outbreak of Croatia’s 1991-95 war of independence.

The town was razed and more than 1,000 civilians were killed during the three-month siege and its aftermath, while some 22,000 non-Serbs were expelled.

Mrksic was convicted over the killing of 194 people who had been forcibly taken from a hsopital where thousands of Croats and other non-Serbs had taken refuge.

Mrksic’s subordinate Veselin Slijivancanin, was sentenced by the ICTY to 10 years in prison for his role in the massacre, while a third defendant was acquitted.

About 20,000 people were killed in the war sparked by Croatia’s proclamation of independence from the former Yugoslavia.

Vt. Man Faces War Crimes Retrial
The Rutland Herald
August 19, 2015

A Vermont man is expected to face a second trial early next year on charges he lied about his role in Bosnian war crimes during the early 1990s.

Earlier this summer, the conviction of Edin Sakoc was overturned after a judge ruled prosecutors made comments during his January trial that had not been included in the original indictment.

The Burlington Free Press reported that during a Monday hearing in federal court in Burlington attorneys said they would like to hold the retrial in February or March.

Sakoc is a Bosnian Muslim who arrived in the United States in 2001. Prosecutors charged he lied on his 2007 citizenship application about his role in war crimes in 1992, which his attorneys argued were committed by a Bosnian army commander.

MIDDLE EAST AND ASIA

Extraordinary Chambers in the Courts of Cambodia (ECCC)
Official Website of the United Nations Assistance to the Khmer Rouge Trials (UNAKRT)

One-time supervisor tells of work on dam
Phnom Penh Post
By Rebecca Moss
August 11, 2015

During the final stretch of construction on the Trapeang Thma Dam in 1977, on sweltering April days just before Khmer New Year, workers carried earth in shifts for 120 hours straight with only brief breaks, witness Kan Thorl told the Khmer Rouge tribunal yesterday.

Thorl, now 57, worked as deputy platoon chief at the worksite, supervising 30 workers, though he recalled 15,000 people labouring at the dam, which he said was completed in under three months – although other witness testimonies dispute this timeframe. “At night, there were militiamen, they would monitor our movement,” he said.

To encourage the dam’s rapid progress, Thorl added that near-daily sessions for “self-criticism” and “re-education” were held, with the inefficient or those who feigned illness deprived a portion of their food rations – three cans of rice a day for a good worker.

According to the witness, between two and five members of his unit fell sick each day and less than 30 per cent were able to make their daily work quota.

“They became weaker and weaker after the food ration had been reduced,” he said. “This was one kind of punishment imposed on us.”

The witness confirmed that these instructions were handed down by Ta Val, who oversaw the worksite; he also placed several other senior cadre members at the dam, including sector secretary Heng Rin, and Ta Cheal, a member of the sector committee.

Thorl confirmed that the control of the dam switched into the hands of Southwest Zone cadres in 1977 – “Those from the Northwest Zone were no longer there,” he said simply – but could not say how he knew this, and denied arrests occurred at the site.

In an attempt to jog his memory, however, the prosecution read a passage from Thorl’s witness statement to the investigating judges.

“One day, I saw that they had arrested people and tied them up and were walking them nearby my building during the night.

I did not know their names.

The people walking them were dressed in black and had guns slung over their shoulders so I assumed they were soldiers,” the statement read.

The proceedings concluded with the discussion of marriage at the dam worksite, an arrangement of 30 couples wed at once with minimal ceremony.

Thorl said couples chose their partners willingly, contradicting previous testimony from civil parties, and said the regime believed traditional ceremonies were excessive and that marriages only required a “resolution” between partners as they held each other’s arms.

Ex-cadre tells of dam purges
The Phnom Penh Post
By Alessandro Sassoon
August 12, 2015

A former Khmer Rouge soldier and Trapeang Thma Dam guard between 1976 to 1977, Lat Suoy began his testimony by recounting the day the Khmer Rouge entered his village near the dam, on April 17, 1975.

“They came and screamed for all the relatives of Lon Nol soldiers, to take them away and execute them,” he said.

“They arrested my village chief Nea Rim and his wife and they were executed”, he added.

The recollection prompted an objection from the defence, who maintained that the alleged purges did not figure into the scope of the current Case 002/02.

However, the objection was ultimately overruled on the grounds that the purges established the existence of Khmer Rouge policy implemented nationally.

Suoy himself feared his relatives might be targeted as intellectuals by initial purges as “they had studied to grade one or two”.

Drafted into the ranks of the regime at age 15, Suoy said he did not know what the army was.

Taken into the jungle and separated from his parents, he “cried often”.

Speaking of his time at the Trapeang Thma Dam, Suoy testified that Ta Val commanded all mobile work units in sector five.

The witness claimed he knew Ta Val well, saying, “Ta Val was a very firm person”, and that “every time Ta Val came by, everyone feared him and tried to work harder”.

According to Suoy, subordinates carried out arrests at the worksite but the orders for executions came from Ta Val.

Suoy then described sanitary conditions, how workers had swollen bodies and would be poisoned from resorting to eating plants and mushrooms. “Some had knees bigger than their heads.”

At the end of the session, Suoy confirmed the purge of Northwest Zone cadres by Southwest Zone cadres in 1977, in which he himself eventually became a target. “Southwest Zone cadres came to arrest Northwest Zone cadres,” Suoy continued, naming Ta Val among the victims of the purge.

Once his superior was arrested, Suoy was next, but he evaded capture.

“I fled to my house and the Southwest cadres arrested me . . . I used Khmer traditional martial arts to knock down the security guard and fled”.

The day’s session ended with Suoy explaining how the purge continued, “They accused my village of being traitors. They intended to arrest all of us.

We had to take refuge in the jungle”.

In the morning, witness Kan Thorl concluded his testimony, saying he had heard secondhand accounts that any Vietnamese people found were to be executed, an element of the genocide charges in Case 002/02.

KR Leaders had authority over killings : Witness
Cambodian Daily
By George Wright
August 14, 2015

A former assistant to the head of the Trapeang Thma Dam worksite during the Pol Pot regime told the Khmer Rouge tribunal Thursday of an order stipulating that the decision to kill could only be made by the party’s leadership.

Chhit Yoeuk, who served under Ta Val—a ruthless commander witnesses say was responsible for ordering executions at the Banteay Meanchey worksite—told the court of a 1978 meeting in which mobile unit chiefs informed their subordinates they could not carry out purges.

“On the issues of arrests or killings, only in 1978 I heard of the meeting by the chiefs of the mobile unit who said that lower cadre did not have the authority to kill anyone, and only the decision to kill someone could be made by the center,” he said.

When asked by Judge Jean-Marc Lavergne if lower-level cadre held autonomy over purges prior to 1978, Mr. Yoeuk said he believed the directive could have come as a result of such a practice.

“It might be possible that those cadre made their own decisions to kill people and that’s why later on there was a directive from the center prohibiting them to kill in 1978,” he said.

Mr. Yoeuk was also questioned on his demotion from Ta Val’s assistant to collecting fertilizer at the site, and why he did not refuse to accept his new role.

“I didn’t know what mistake I made and I was reassigned to carry fertilizer…. I thought maybe someone made an accusation against me that’s why I was reassigned,” he said.

Despite regularly deflecting questions related to deaths at the site, claiming he was unaware of killings due to his low rank, Mr. Yoeuk admitted that he was afraid of losing his life.

“The fear was that I was wondering if someone made an accusation against me, if that was the case I would be in a big, risky situation that I might be arrested and sent to be killed,” he said.

“People disappeared without any reason and in fact during the regime, nobody dared ask any questions about this issue. For example if I was to be taken away, that’s the end of the story, nobody would dare to ask why I was being taken away,” he said.

More EU Financial Assistance to ECCC and Genocide Education
Khmer Times
August 15, 2015

The European Union has decided to make an extra contribution amounting to 10 million euro to support the Extraordinary Chambers in the Courts of Cambodia (ECCC) as well as to support genocide education in Cambodia.

According to a press release of the European Union Delegation to Cambodia made public Friday afternoon, 8.9 million euro of the total fund will be used to support the international and national components of the ECCC in order to ensure the necessary international standards of justice for the hybrid tribunal.

The rest (1.1 million euro) will be used to provide genocide education as a means encouraging and reinforcing collective and individual historical memory as well as understanding the importance of respecting human rights and cultural diversity, it pointed out.

“This new contribution to the ECCC is a renewed proof of the commitment of the European Union to improve good governance and the rule of law in Cambodia as well as to raise standards in the administration of justice and in combating impunity in this country,” said Mrs. Fiona Ramsey, Chargé d’Affaires a.i. of the Delegation of the European Union to Cambodia.

The EU contribution will be managed by the United Nations Office for Project Services (UNOPS) in close partnership with the United Nations Department of Economic and Social Affairs (UNDESA), said the press release.

With this new contribution, it added, the EU support to the ECCC now totals more than 17.3 million euro over the past 9 years (since 2007). To date, the EU and the EU Member States have contributed to the Court approximately US$55 million, corresponding to 26 percent of the total contributions. This makes the EU and the EU Member States combined the second largest contributor to the Court.

Iraq

Grotian Moment: The International War Crimes Trial Blog

Iraqi panel wants Maliki to ‘face court over fall of Mosul’ to IS group
France24
August 16, 2015

An Iraqi parliamentary panel called Sunday for dozens of security and political officials, including former prime minister Nuri al-Maliki, to be indicted in connection with the fall of the northern city of Mosul to Islamic State (IS) group.

The indictment of Maliki, who remains a powerful figure in Iraq’s complex political landscape, and other senior officials comes a week after Prime Minister Haider al-Abadi launched a sweeping campaign to combat corruption and mismanagement that he argued had made the country nearly impossible to govern.

In the panel’s report, seen by Reuters and confirmed as accurate by three of its members, the committee also placed responsibility for the June 2014 defeat with former Mosul Governor Atheel al-Nujaifi, former acting defence minister Sadoun al-Dulaimi, former army chief General Babakir Zebari and Lieutenant General Mahdi al-Gharrawi, former operational commander of Nineveh province, of which Mosul is the capital.

Others accused include Nineveh police commander Major General Khalid Hamdani and former Deputy Interior Minister Adnan al-Assadi. “No one is above the law”

There has been no official accounting of how Mosul was lost, and who gave the order to abandon the fight. The fall of the city – Iraq’s second-largest – was a turning point in Islamic State’s seizure of large swathes of the country’s north and west in a sweep across the Syrian border last year.

An investigation by Reuters in October showed how troop shortages in Mosul and infighting among top officers and Iraqi political leaders played into Islamic State’s hands and fuelled panic that led to the city’s abandonment. Maliki has accused unnamed countries, commanders and rival politicians of plotting the fall of Mosul.

The parliamentary report was approved by 16 of the panel’s 24 members, lawmaker Muhsin Sadoun said. Panel member Mohammed al-Karabouli said parliament would vote on the report’s findings on Monday and then refer it to Abadi, the prosecutor general and the integrity commission.

“No one is above the law and accountability to the people,” said Parliament Speaker Saleem al-Jabouri in a statement upon receiving the report. “The judiciary will punish perpetrators and delinquents.”

[back to contents]

Syria

Syria: War Crimes Amplify Suffering of Eastern Ghouta’s Bombed and Besieged Civilians
Amnesty International
August 12, 2015

Relentless aerial bombardment and shelling by Syrian government forces is magnifying the suffering of civilians trapped under siege and facing an escalating humanitarian crisis in Eastern Ghouta, said Amnesty International in a new report published today.

‘Left to die under siege’: War crimes and human rights abuses in Eastern Ghouta, Syria reveals damning evidence of war crimes and describes the Syrian government’s siege on Eastern Ghouta and unlawful killing of its besieged civilians, occurring as part of a widespread as well as systematic attack on the civilian population, as amounting to crimes against humanity. The report also highlights the agonizing struggle to survive of more than 163,000 people living under siege in Eastern Ghouta, as well as exposing abuses by non-state armed groups in the area.

“For nearly three years the lives of civilians in Eastern Ghouta have been devastated by bloodshed and tragedy. They are trapped and surrounded by fighting on all fronts with no means to escape the unlawful aerial and shelling attacks waged by government forces. Their anguish is compounded by dwindling supplies of food, clean water and other crucial necessities which mean that daily life for many has become a prolonged experience of hardship and suffering,” said Said Boumedouha, Acting Director of Amnesty International’s Middle East and North Africa Programme.

War crimes by government forces

Between January and June 2015 Syrian government forces carried out at least 60 aerial attacks on Eastern Ghouta killing around 500 civilians. The report documents 13 air strikes and other attacks amounting to war crimes, which killed 231 civilians and only three fighters. In 10 cases no military target could be identified in the vicinity suggesting the strikes were direct attacks on civilians or at best indiscriminate. In the remaining three cases the attacks appeared grossly disproportionate or otherwise indiscriminate. Many public places that were struck were crammed full of civilians including a crowded public market, a school while students were nearby and the vicinity of a mosque soon after Friday prayers.

Satellite imagery analysis shows that aerial attacks carried out between 28 December and 10 February have completely destroyed multiple residential buildings in the vicinity of Taha mosque in Douma. One eyewitness said that he saw nine bodies scattered on the streets near the mosque killed by an airstrike on 9 February. He added that residential buildings, an underground field hospital and a school were also destroyed.

On the same day, Amir witnessed another strike on another mosque in Douma. He described to Amnesty International how displaced families including children were killed in the attack that struck al-Ansar mosque in Douma where they had sought refuge. “Nowhere is safe,” he said.

Public markets are also on the list of Syrian government’s targets. “It was a disaster,” one eyewitness said describing the aftermath of the attack on the market in Kafr Batna on 5 February. Residents said the attack took place at 1pm– the “busiest hour of the day” – and also destroyed two nearby residential buildings. There was no trace of a military target nearby.

In a similarly shocking attack on 25 January Syrian air force jets bombed a market in Hamouria shortly after Friday prayers as crowds of people poured out of a nearby mosque to buy sugar sold that day at a discounted price, killing more than 40 civilians. “I could only see blood. It was horrific, like nothing I have seen before,” an eyewitness said. “The timing and location of these attacks appear deliberately orchestrated to maximize damage or civilian casualties in a gruesome attempt by the Syrian government forces to terrorize the population. All attacks on civilians and civilian buildings or infrastructure must end,” said Said Boumedouha.

Syrian government forces also repeatedly fired imprecise rockets and mortars or unguided bombs into populated areas in a series of direct and indiscriminate attacks on civilians amounting to war crimes.

“By repeatedly bombing heavily populated areas in a series of direct, indiscriminate and disproportionate attacks as well as by unlawfully besieging civilians, Syrian government forces have committed war crimes and displayed a sinister callousness towards Eastern Ghouta’s civilians,” said Said Boumedouha.

Life under siege – a struggle to survive

In addition to daily bombardments, living conditions for civilians of Eastern Ghouta have continued to deteriorate. Residents have limited access to food, clean water or medical care and essential supplies including electricity and fuel. Checkpoints controlled either by government forces or armed groups restrict their movements into and out of Eastern Ghouta. Government forces have also denied UN agencies and other humanitarian actors free access to the area.

More than 200 people have died from starvation or lack of access to adequate medical care in Eastern Ghouta between 21 October 2012 and 31 January 2015 according to the Syrian American Medical Society.

An emerging black market “war economy” has seen smugglers and members of armed groups or government officials profit at the expense of civilians. Syrian government forces routinely confiscate food at checkpoints forcing residents to buy goods on the black market often for up to 10 times the price of goods in central Damascus.

Marwan, a local resident from Jesrine, said he had lost more than 15kg in weight because of the siege. He spent days without eating in order to ensure his four children and wife could eat once a day. “What will it take for the United Nations to do something about it? Is starvation the only answer?” he said.

“Government forces are using starvation as a weapon of war in flagrant violation of international law. Withholding food and basic supplies required to survive is a vicious act of cruelty amounting to collective punishment of the civilian population,” said Said Boumedouha.

Residents also said Army of Islam (Jaysh al Islam) fighters and their families had abundant food while civilians were forced to pay hugely inflated prices.

The report discloses that non-state armed groups, particularly the Army of Islam, are guilty of an array of abuses including abductions, arbitrary detentions and indiscriminate shelling. Their use of imprecise weapons such as mortars and Grad rockets in populated areas amounts to war crimes.

“Widespread violations by the Syrian government do not excuse the appalling behaviour of the Army of Islam who have also waged indiscriminate attacks, failed to protect civilians and deprived them of access to food or medical care. Civilians of Eastern Ghouta are essentially caught in between two hostile sides vying for their own gain,” said Said Boumedouha.

International action desperately needed

More than a year ago the UN Security Council adopted two resolutions intended to alleviate the suffering of Syria’s civilians, calling on all parties to the conflict to end attacks on civilians, lift all sieges, grant unfettered humanitarian access and release anyone arbitrarily detained. So far however, they have failed to assuage the suffering of most civilians.

“The aim of these resolutions was precisely to protect civilians and prevent a full scale humanitarian disaster. Yet so far the UN Security Council has looked on as the resolutions continue to be openly flouted and the crisis grows steadily worse, despite commitments to take further steps to ensure they are enforced. Such steps are desperately overdue,” said Said Boumedouha.

“Perpetrators of the crimes under international law that we are witnessing in Syria must no longer be allowed to escape justice. As long as Russia blocks the Security Council from referring the situation in Syria to the Prosecutor of the International Criminal Court, justice remains a distant prospect.”

So far the UN Security Council has looked on as the resolutions continue to be openly flouted and the crisis grows steadily worse, despite commitments to take further steps to ensure they are enforced. Such steps are desperately overdue

The Security Council must urgently impose targeted sanctions against all parties to the conflict in Syria responsible for war crimes and crimes against humanity as well as an arms embargo on the Syrian government. The Syrian government should ensure unfettered access for the Independent International Commission of Inquiry to the country as well as other human rights monitors including Amnesty International.

UN Humanitarian Chief Says He is ‘Horrified’ by Attacks on Civilians in Syria
Associated Press
By Albert Aji and Bassem Mroue
August 17, 2015

The United Nations humanitarian chief said on Monday he is “horrified” by the attacks on civilians taking place in Syria, singling out in particular government airstrikes the previous day that killed nearly 100 people in a Damascus suburb.

The protracted conflict not only “severely affects” the lives of millions of people in Syria but also threatens the stability of the entire region, Stephen O’Brien said at a press conference in Damascus.

The stark warning comes amid a surge in violence as Syrian government troops, Islamic militants and rebels carried out attacks that killed and wounded dozens Monday, including in President Bashar Assad’s coastal stronghold of Latakia.

“Attacks on civilians are unlawful, unacceptable and must stop,” O’Brien said, speaking at the end of a three-day visit to Syria, during which he met senior officials and visited the central province of Homs.

Government air raids on Sunday killed at least 96 people in the eastern Damascus suburb of Douma, making it one of the deadliest single incidents since the crisis began in March 2011. The airstrikes hit a vegetable market in the suburb, which is a stronghold of the Islam Army rebel group.

Syria’s conflict has killed more than 250,000 people, according to United Nations.

“I am particularly appalled by reports of airstrikes yesterday, causing scores of civilian deaths and hundreds injured, right in the center of Douma,” O’Brien said. “I am horrified by the total disrespect for civilian life in this conflict.” He

appealed to all parties to protect civilians and respect international humanitarian law, and also expressed concerns for 4.6 million Syrian “stuck in hard-to-reach and besieged areas.”

O’Brien also lambasted armed groups for cutting off water in Damascus, saying it was unacceptable to “use access to water and other services as a weapon of war.”

Water cuts have been used before in the Syrian civil war, with Damascus and the northern city of Aleppo, Syria’s largest city and former commercial center, most affected.

In Washington, State Department spokesman John Kirby said the United States “condemns in the strongest possible terms the Assad regime’s deadly airstrikes” on the Douma market.

“The Assad regime’s brutal attacks on Syria’s cities have killed thousands of people and destroyed schools, mosques, markets, and hospitals,” Kirby said, adding that they “demonstrate the regime’s disregard for human life.”

U.N. special envoy Staffan de Mistura also condemned the Douma airstrikes.

“Hitting crowded civilian markets (and) killing almost one hundred of its own citizens by a government is unacceptable in any circumstances,” de Mistura said, repeating calls for the warring sides to urgently start a dialogue toward a political solution.

Also Monday, the rebels in Damascus’ wider eastern suburbs — an area known as Eastern Ghouta — imposed a curfew, fearing more government airstrikes and saying the curfew was imposed out of concern for civilian lives. The rebel statement said the curfew would go on until further notice. Douma is part of Eastern Ghouta.

The Britain-based Syrian Observatory for Human Rights reported 22 air raids on Eastern Ghouta on Monday, including seven in Douma. The Local Coordination Committees said Douma was hit with mortar shells.

Douma-based activist Baraa Abdul-Rahman said the streets there were empty and most people were staying indoors. “There is a situation of terror and fear in the town,” he said via Skype.

In Turkey, the head of the main Western-backed opposition group, the Syrian National Coalition, blasted the government over Douma’s air raids and urged the international community to help bring officials behind the “massacres and war crimes” to the International Criminal Court.

Sweden grants temporary asylum to 40 war crimes suspects
Middle East Monitor
August 14, 2015

A report by the Swedish Migration Agency has revealed that the government in the Scandinavian country has granted temporary residence to 40 asylum seekers who are suspected of having committed war crimes in Syria and Iraq. The suspects do not want to return home as they fear that they will be killed if they do.

Asylum expert Magnus Bengtsson noted that although war crimes suspects who seek asylum come to Sweden using false identities, the Swedish authorities have uncovered their real identities after thorough investigations. He pointed out that the people in question have not been sent back to their country because they risk getting killed or tortured, and “some” have been given temporary residence permits.

In a related matter, Swedish state television has claimed that hospitals in Sweden have treated 301 citizens who were injured in Syria and Iraq after joining the ranks of Al-Nusra Front and Daesh.

ISIS Beheads 82-Year-Old Archaeologist in Palmyra, Syrian Official Says
Fox News
August 19, 2015

ISIS militants have beheaded an 82-year-old archaeologist who had been in charge of overseeing the ancient site at Palmyra in Syria, a government official said Tuesday.

Syrian state antiquities chief Maamoun Abdulkarim told Reuters that the family of Khaled Asaad had informed Abdulkarim that Asaad had been beheaded earlier in the day and his body hanged from a column in the town’s main square.

Asaad’s death was also reported by the Britain-based Syrian Observatory for Human Rights. The Observatory, which has a network of activists on the ground in Syria, said dozens of people gathered to witness the killing.

Abdulkarim said that Asaad had been held and interrogated by members of the terror group for over a month before his death. The official said that Asaad’s captors had been looking for information about where the town’s treasures had been hidden to save them from ISIS, but they had no success getting the information from the scholar.

ISIS seized Palmyra, whose Roman-era ruins attracted thousands of tourists prior to Syria’s civil war, from government forces in May. In the days and weeks before the city fell, Syrian officials said they had moved hundreds of statues out of concern that they would be destroyed by ISIS fighters.

“Just imagine that such a scholar who gave such memorable services to the place and to history would be beheaded … and his corpse still hanging from one of the ancient columns in the center of a square in Palmyra,” Abdulkarim said. “The continued presence of these criminals in this city is a curse and bad omen on (Palmyra) and every column and every archaeological piece in it.”

Asaad spent over 50 years working at the UNESCO World Heritage site, including alongside U.S., French, German, and Swiss archaeological missions. He also wrote many books and scientific texts either individually or in cooperation with other Syrian or foreign archeologists, SANA said. Among his titles are “The Palmyra Sculptures,” and “Zenobia, the Queen of Palmyra and the Orient.”

Abdulkarim described Asaad as “one of the most important pioneers in Syrian archaeology in the 20th century.” The country’s official news agency SANA reported that Asaad had been in charge of Palmyra’s archaeological site for four decades until 2003, when he retired. After retiring, al-Asaad worked as an expert with the Antiquities and Museums Department.

Asaad, who held a diploma in history and education from the University of Damascus, also discovered several ancient cemeteries, caves and the Byzantine cemetery in the garden of the Museum of Palmyra, the agency reported.

“Al-Asaad was a treasure for Syria and the world,” Khalil Hariri from Palmyra’s archaeological department told The Associated Press, speaking over the phone from the central Syrian city of Homs.

“Why did they kill him?”

“Their systematic campaign seeks to take us back into pre-history,” he added. “But they will not succeed.”

ISIS drew international condemnation after it released videos showing members destroying artifacts with hammers and drills in a museum in the northern Iraqi city of Mosul and using explosives to wreck other sites.

In March, ISIS members in Iraq razed 3,000-year old Nimrod and bulldozed 2,000-year old Hatra — both UNESCO world heritage sites. At the time, United Nations Secretary General Ban Ki-Moon described the action as a “war crime.”

However, it is not completely clear what ISIS has done with Palmyra’s Roman-era ruins. In June, ISIS blew up two shrines that did not date from Roman times, but were regarded by the militants as pagan and sacrilegious under their strict interpretation of Islam. One of the destroyed tombs belonged to a descendant of the Muslim prophet Muhammad’s cousin. ISIS also destroyed a lion statue in the town dating back to the 2nd century. The statue, discovered in 1975, had stood at the gates of the town museum, and had been placed inside a metal box to protect it from damage.

In early July, ISIS released a video showing the killing of some 20 captured government soldiers in Palmyra’s amphitheater. They were shot dead by young IS members, armed with pistols. Hundreds of people were seen watching the killings.

Islamic State of Iraq and the Levant

New Jersey Man Charged With Plotting to Support ISIS
The New York Times
By Stephanie Clifford
August 10, 2015

A New Jersey man who prosecutors said tried to organize support for the Islamic State was arrested on Monday.

The man, Nader Saadeh, 20, wanted to “form a small army” that would include his friends, according to the United States attorney for New Jersey. Mr. Saadeh lived in Rutherford, N.J., until he left the United States in May but was detained in Jordan.

Mr. Saadeh was charged with conspiracy and seeking to provide material support to a terrorist group.

A person who knew Mr. Saadeh alerted the Federal Bureau of Investigation and the Joint Terrorism Task Force, the criminal complaint says, telling federal agents in April that the men were headed overseas to join the Islamic State, which is also known as ISIS or ISIL.

That person lived with Mr. Saadeh and his brother, Alaa, 23, for several years after their parents were deported. The brothers lived together in Fort Lee, N.J., from 2012 to 2014, and this year moved back in with the same person in Rutherford.

The person said Nader Saadeh began to change after he moved in, “praying five times a day” and wearing “traditional Muslim attire in place of the Western clothing he had previously worn,” the criminal complaint says. He also became agitated when the conversation was not about Islam, the complaint says. When the Islamic State burned alive a Jordanian pilot, Mr. Saadeh said it was justified, according to the person, and he also said the attack on the French satirical newspaper Charlie Hebdo was justified.

By April, the person said, Mr. Saadeh changed his phone number and began speaking in Arabic, which was not his first language, rather than English, when they were together.

Federal authorities then searched Mr. Saadeh’s email and social media accounts and found messages supporting the Islamic State.

In messages from 2013, Mr. Saadeh and a friend discussed building a “small army” of their friends. “Think of it, it will probably be like 2-4 yrs from now, we will be in the prime of our lives,” he wrote.

By April, Mr. Saadeh’s mother expressed worry. He received two messages through his mother’s friends dissuading him from joining the Islamic State. His mother wrote him, “Do not go anywhere if u love me dont kill your mom.”

In May, after Mr. Saadeh discussed joining the Islamic State with his brother and two friends, he flew from Kennedy International Airport to Amman, Jordan. About 10 days after he arrived, his father alerted Alaa Saadeh that his brother had been detained there, according to the person who lived with the brothers.

Nader Saadeh appeared in Federal District Court in Newark on Monday afternoon. His lawyer declined to comment.

His brother was arrested in June. The two friends who discussed joining the Islamic State — Samuel Rahamin Topaz, 21, of Fort Lee and a 20-year-old Queens resident who was not named — were also arrested that month.

Alaa Saadeh consented to being jailed without trying for bail, court records show, and is in plea negotiations. No bail package was presented for Mr. Topaz, who is also in plea negotiations.

California Man Guilty of Trying to Support Islamic State
The New York Times
By The Associated Press
August 10, 2015

A California college student who lied on a passport application so he could travel to Syria and join the Islamic State pleaded guilty Monday to a terrorism-related charge.

Adam Dandach, 21, of Orange pleaded guilty to attempting to provide material support to the Islamic State and to lying on a passport application.

He acknowledged in a plea agreement filed in U.S. District Court in Santa Ana that he supported violent jihad against the “occupiers” of Afghanistan, Iraq and Syria and planned to offer his services to the terrorism cause.

On July 2, 2014, the day he attempted to fly to Istanbul, he emailed a friend and complained that more people weren’t helping the cause and that it was a “golden opportunity,” according to court documents.

FBI agents found his smartphone loaded with jihadi songs supporting Islamic State fighting, maps of areas the group controlled, and Twitter updates of fighting by the terrorist group.

He told FBI agents who questioned him at John Wayne Airport that he was heading to Syria and planned to pledge allegiance and offer assistance to the Islamic State. He said he believed the killings of American soldiers were justified.

Dandach was initially snared on a charge of lying to get a replacement passport when he claimed on an application that he accidentally tossed out his old passport. He knew his mother confiscated his passport when she learned of his travel plans, prosecutors said.

His mother, Sawsan Ghannoum, told The Associated Press in March that she hid the passport when her son said he wanted to visit his father in Lebanon and volunteer for charity work.

She said he had psychological problems and was naive and misled by people on the Internet while trying to learn about Islam.

“He’s not a kind of violent person, a terrorist,” Ghannoum said. “He’s afraid of a bee.”

Dandach could face up to 25 years in federal prison when sentenced Jan. 11.

His lawyer did not immediately reply to a message seeking comment.

2 NYC students charged with conspiring to provide material support to ISIS
PIX11 News
By Alyssa Zauderer
August 11, 2015

A federal grand jury has indicted two New York City college students on terror charges accusing them of attempting to provide material support to the Islamic State and carry out a terror attack.

Munther Omar Saleh, 20, and Fareed Mumuni, 21, have been in custody since June.

Prosecutors say the 21-year-old Saleh had researched recipes for homemade explosives and looked up city landmarks on the Internet. They also say he and the 20-year-old Mumuni discussed how to build a pressure cooker bomb.

On June 13, Saleh and another man were arrested in Queens after they approached a police officer while armed with knives.

Just a few days later, the FBI executed a search warrant on Mumuni’s home on Staten Island. During the search, Mumuni allegedly tried to stab an FBI special agent with a large kitchen knife. Officials said the attack was premeditated.

“He kept the knife he used to attack the FBI Special Agent wrapped in a T-shirt in his bed for such an occasion,” the court document said. “Mumuni also stated that he kept the knife that was recovered from his mother’s vehicle for use in an encounter with law enforcement.”

Police Commissioner Bill Bratton commended the agents and detectives from the Manhattan-based Joint Terrorism Task Force and prosecutors on the case.

“Stabbing an FBI agent and providing ‎material support to a designated terrorist organization are a recipe for indictment, as alleged,” said Bratton.

Their defense attorneys haven’t responded to messages seeking comment on the indictment. An attorney previously denied Mumuni is an Islamic State convert and said he has a clean record.

An arraignment is set for Aug. 20.

Mumuni faces up to 85 years in prison while Saleh faces a maximum sentence of 65 years.

Man Pleads Not Guilty to Backpack Bomb Plot on Florida Beach
The New York Times
By The Associated Press
August 11, 2015

A Florida Keys man pleaded not guilty Tuesday to federal charges of plotting to set off a backpack bomb on a beach to show solidarity with the Islamic State militant group.

Attorney Richard Della Fera entered the plea Tuesday in federal court in Miami for 23-year-old Harlem Suarez of Key West, who did not speak during the brief hearing. Suarez faces life in prison if convicted of attempting to use a weapon of mass destruction and up to 20 years behind bars if found guilty of seeking to provide material support to terrorists.

Della Fera says Suarez, who emigrated from Cuba with his family in 2004, is no terrorist and has portrayed him as “troubled and confused.” The case, which involved FBI use of undercover operatives, evolved from a series of pro-Islamic State postings on Suarez’s Facebook pages earlier this year.

Suarez sometimes used a Facebook account with the name “Almlak Benitez” in which he appeared to be trying to recruit fighters for the terror group, the FBI says.

“We are the islamic state. We are isis Muslims,” one posting says.

According to the FBI, Suarez told an informant he wanted to detonate a homemade bomb using a backpack filled with nails on a Key West beach after previously discussing plans to set off a bomb in Miami Beach or another Keys town. He was arrested in July after officials say he took possession of an inert explosive device from an undercover FBI employee posing as an Islamic State member.

The material support charge stems from an Islamic State recruitment video Suarez is accused of making — using a script he wrote — with the assistance of the FBI informant, Della Fera said.

“Destroy our enemies against us. Let live only who are our brothers and sisters,” Suarez says on the video, according to an FBI complaint. “American soil is the past, we will destroy America and divide it in two, we will raise our black flag on top of your White House and any president on duty (cut head).”

Suarez is being held without bail in an isolation section of Miami’s downtown detention center reserved for terrorist suspects, alleged senior-level drug traffickers and similar high-profile defendants. Della Fera said he will decide whether to seek Suarez’s release on bail after reviewing the government’s evidence.

“Without any evidence, you’re just fishing around in the dark,” he said. “I haven’t received anything of substance in this case yet.”

A trial date has not yet been set.

Brooklyn Man Accused of Supporting ISIS Pleads Guilty
The New York Times
By Stephanie Clifford
August 14, 2015

A Brooklyn man accused this year of trying to join the Islamic State pleaded guilty on Friday to conspiring to provide material support to the terrorist organization.

Abdurasul Hasanovich Juraboev, 25, who appeared in Federal District Court in Brooklyn, will face a maximum possible term of 15 years in prison when he is sentenced. The date for the sentencing has not been set.

Mr. Juraboev is the first of a group of five co-defendants to plead guilty. In February, federal prosecutors in the Eastern District of New York said that Mr. Juraboev, an Uzbek citizen who worked in a Brooklyn gyro shop, had planned to fly to Istanbul, then travel to Syria, to fight for the Islamic State. Mr. Juraboev had a ticket to fly out of Kennedy International Airport to Istanbul departing in March, but was arrested before he could use it.

A co-defendant, Akhror Saidakhmetov, 19 at the time of his arrest and a citizen of Kazakhstan, was arrested in February on a jetway at Kennedy as he boarded a flight to Istanbul. The authorities said he had planned to slip into Syria from there and join the Islamic State, which is also known as ISIS or ISIL.

Mr. Juraboev and Mr. Saidakhmetov had talked of violence on behalf of the Islamic State, like planting a bomb in Coney Island and attacking President Obama, the authorities said. The authorities presented no evidence that the men had taken steps beyond just talk on those fronts. Mr. Saidakhmetov and three other remaining co-defendants have pleaded not guilty.

Prosecutors said three other men, Abror Habibov, Dilkhayot Kasimov and Akmal Zakirov, helped raise money to send fighters, including Mr. Saidakhmetov, to join the Islamic State, also known as ISIS or ISIL.

The criminal complaint against the men suggests investigators began monitoring Mr. Juraboev after he posted an online message asking how to martyr himself while staying in the United States. Federal agents interviewed him soon afterward, and he told them that he supported the Islamic State and that his friend, Mr. Saidakhmetov, shared similar views, according to the complaint. A paid informer soon began interacting with the two men and talking to them about traveling to Syria.

A lawyer for Mr. Juraboev did not immediately respond to a request for comment.

“This case is another example of the reach that ISIL has within the United States through social media, and the fact that some are willing to follow that call,” William J. Bratton, the New York City police commissioner, said in a statement.

Young Mississippi Couple Linked to ISIS, Perplexing All
The New York Times
By Richard Fausset
August 14, 2014

She was a cheerleader, an honor student, the daughter of a police officer and a member of the high school homecoming court who wanted to be a doctor.

He was a quiet but easygoing psychology student. His father is a well-known Muslim patriarch here, whose personable air and habit of sharing food with friends and strangers made him seem like a walking advertisement for Islam as a religion of tolerance and peace.

Today, the young woman, Jaelyn Young, 19, and the young man, her fiancé, Muhammad Dakhlalla, 22, are in federal custody, arrested on suspicion of trying to travel from Mississippi to Syria to join the Islamic State.

Friends and strangers alike said it was difficult to imagine two less likely candidates for the growing roster of young, aspiring American jihadists.

“Something must have happened to her,” Elizabeth Treloar, 18, said of Ms. Young, her friend. “She’s too levelheaded, too smart to do this.”

Mr. Dakhlalla’s relatives were as shocked as anyone when he and Ms. Young were arrested last weekend on their way to a small regional airport, where they had intended to catch the first in a series of flights that would eventually put them in Istanbul. The only plans the family knew of, said Dennis Harmon, a lawyer and friend of Mr. Dakhlalla’s parents, were that he would attend graduate school in the fall here at Mississippi State University.

Ms. Young, who three years ago was broadcasting silly jokes on Twitter and singing the praises of the R&B singer Miguel, had more recently professed a desire to join the Islamic State, according to an F.B.I. agent’s affidavit in support of a criminal complaint. On July 17, the day after a young Muslim man in Chattanooga, Tenn., fatally shot five United States servicemen, Ms. Young rejoiced, the affidavit alleges, in an online message to an F.B.I. agent posing as a supporter of the Islamic State.

“Alhamdulillah,” she wrote, using the Arabic word of praise to God, “the numbers of supporters are growing.”

Though a number of young Muslims in the United States have been seduced in recent months by the Islamic State, the fact that it has resonated as far as Starkville has set off an understandable wave of distress here — a feeling that the struggle and terror in foreign deserts are not as far from the American heartland as they might have seemed.

Starkville, which calls itself “Mississippi’s college town,” tends to dent the national consciousness only when Mississippi State’s football team is winning. Both of the suspects attended Mississippi State: Mr. Dakhlalla graduated in May with a psychology degree and had been accepted to graduate school for the fall; Ms. Young hoped to become a doctor and held a research job in a chemistry lab on campus.

Theirs were rather emblematic Mississippi State stories: Though the sprawling land-grant college lacks the Old South mystique of its rival, the University of Mississippi, it has a multicultural campus thick with research scientists and engineers, and locals tend to be proud of Starkville’s relative tolerance. In Mississippi, said Nick Crews, 34, a musician and neighbor of the Dakhlallas, Starkville “is like this little bastion unto itself.”

And so, in addition to expressing fear and anger, many here were simply baffled by what had gone wrong with this handsome young couple who seemed to be on their way to sharing a 21st-century Mississippi success story.

Mr. Dakhlalla’s father, Oda Dakhlalla, arrived in Mississippi decades ago and studied civil engineering at the University of Mississippi, said Mr. Harmon, the lawyer and family friend. Mr. Dakhlalla’s wife, Lisa, is from New Jersey and is a Muslim convert, Mr. Harmon said. They raised three sons in Starkville, were deeply ingrained in the life of the town and were hard to miss. Oda Dakhlalla dresses in a traditional gown, and his reputation as a miracle-working math tutor earned him, among students, the nickname “Yoda.” Ms. Dakhlalla was known as “the hummus lady” for the Mediterranean specialties she sold at the local farmers’ market.

From 2005 to 2009, the family operated Shaherazad’s, a Middle Eastern cafe. Ms. Dakhlalla has said they got out of the business because she was having health problems. Mr. Harmon said that their generosity may have gotten the better of them.

“They were great cooks, but they weren’t good business people,” he said. “Oda wants to feed everybody, but you’re supposed to sell it, not give it away.”

There was no question that the family had embraced the strategy, common in both the Middle East and the American South, of fellowship through food. Mayor Parker Wiseman said the elder Mr. Dakhlalla often came around City Hall with lunches for workers. Mr. Crews, the neighbor, said he had a leg of lamb that Mr. Dakhlalla had given him in his freezer. Though he was not the imam of the local mosque, the Islamic Center of Mississippi, Oda Dakhlalla lived across the street from it, sometimes delivered the Friday sermon and often invited neighbors like Mr. Crews to services.

Muhammad Dakhlalla, the youngest of the couple’s three sons, goes by “Mo.” He worked at the restaurant, earned black belts in taekwondo and judo at a martial arts school, and attended Starkville High School.

R. J. Morgan, a former teacher, said Mr. Dakhlalla was bright, courteous and popular, and mixed easily with non-Muslim students.

When his world history class took a month to explore the Israeli-Palestinian crisis in depth, Mr. Morgan said, Mr. Dakhlalla, then a 10th grader, spoke in favor of Palestinian rights. “But in no way, in no way, did Muhammad have extreme views on the plight of the Palestinian people,” he said.

Mr. Dakhlalla met Ms. Young about a year ago, Mr. Harmon said. She had graduated near the top of her class at Warren Central High School, where she had been a member of the homecoming court. Marneicha Wilson, 19, an old friend, said Ms. Young had been raised in a Christian household and attended church, but had not been particularly zealous.

Ms. Treloar said Ms. Young had converted to Islam in April after being introduced to the religion by college friends. She recalled that Ms. Young was drawn to the Quran’s teachings because she believed it had been unchanged since it was first written. She thought the Bible, by contrast, had been translated so much that its original meaning was lost, Ms. Treloar said.

Ms. Young believed that Muslims and groups like the Islamic State had been unfairly caricatured in the West, Ms. Treloar said. But she saw no signs that Ms. Young would try to join the extremists.

Ms. Young’s last Facebook post, on March 17, was a jokey altered photo, a pop-culture riff involving Whoopi Goldberg, the Star Wars character Jar Jar Binks, and the rapper 2 Chainz. Two months later, the affidavit says, an F.B.I. employee identified her “through social media platforms” as a supporter of the Islamic State, also known as ISIS or ISIL.

The court document describes how two F.B.I. employees, posing as supporters of the terrorist group, engaged the couple in a long online courtship in which they repeatedly stated their desire to join the militants. Ms. Young wrote that she might be able to offer “medical aid” to the cause. Mr. Dakhlalla wrote that he was “willing to fight.”

But their messages were full of concerns. Mr. Dakhlalla wondered if he would be placed with other English-speaking recruits. Ms. Young was frustrated that family and community members in Starkville did not support the Islamic State. She also confessed that she had never traveled outside the United States. “I need help crossing from Turkey to Syria with my hijjrah partner,” Ms. Young wrote in early June, using the Arabic word for “emigration” or “journey.”

Ms. Young said they would leave under the pretense of being “newlyweds on our honeymoon.” On June 6, the couple performed an Islamic marriage ceremony. Mr. Harmon said that for the marriage to be valid under Islamic law, Ms. Young’s father was required to sign a contract. But the father, a police officer who friends say served in the United States military in Afghanistan, refused to do so.

After their arrest, the affidavit states, the couple confessed that they were on their way to join the Islamic State. On Tuesday, a federal magistrate in Oxford, Miss., ordered them held without bail, citing their methodical planning. They each face up to 20 years in prison on the charge of attempting and conspiring to knowingly provide material support and resources to a foreign terrorist organization.

When Mr. Crews, the Dakhlallas’ neighbor, noticed unmarked police cars choking the block last weekend, he immediately guessed that “some idiot redneck did something to the mosque.”

“I certainly didn’t think somebody got arrested for wanting to join ISIS,” he said. “That just wasn’t on my radar.”

Competency of Man Accused of Supporting Terrorism Questioned
The New York Times
By The Associated Press
August 17, 2015

The lawyer representing a New York man accused of making plans to join the Islamic State group in Syria said Monday he is concerned about the man’s mental competency and received a federal judge’s permission for an evaluation.

Attorney Jeremy Schwartz made the request as Arafat Nagi, 44, pleaded not guilty to a two-count indictment charging him with attempting to provide material support, resources and personnel — himself — to a terrorist organization.

The United States-born Nagi was planning his third trip to Turkey, with plans to continue to Syria to join the fighters, at the time of his arrest last month, federal prosecutors said. Investigators learned of Nagi’s activities after being tipped off by residents alarmed by his jihadi beliefs, which he espoused in person and on social media, according to a criminal complaint.

Schwartz, asked after the hearing about his request for a competency hearing, said: “There are certain communications that I have had that gave me those concerns, but I can’t specifically talk about the details.”

During the hearing, assistant U.S. Attorney Timothy Lynch said the government was “not aware of any issues” but did not oppose the request.

Nagi’s brother and adult son were in court but declined to comment afterward.

Between 2012 and the time of his arrest, Nagi, an unemployed and divorced father of two, bought combat gear, including a machete, night goggles and body armor, and pledged allegiance online to the Islamic State group, prosecutors said. He also posted photos of beheadings and severed heads in 2014 before flying to Turkey, where he stayed for 10 days before continuing on to Yemen for a month, the criminal complaint said.

He was planning another trip this month, authorities said.

“The anticipated August 2015 trip was, I think, the last decisive action by this defendant and once he made that decision, we decided it was appropriate to effectuate an arrest,” Lynch told reporters after the hearing.

He said the pre-trial discovery phase of the case would be complicated because it will likely involve classified information. The government also plans to pursue 14 warrants to search electronic devices seized from Nagi’s home in Lackawanna during a July 29 search, he said.

Nagi has been held without bail since his arrest.

Special Tribunal for Lebanon

Official Website of the Special Tribunal for Lebanon
In Focus: Special Tribunal for Lebanon (UN)

Expert Testifies at STL on Mobile Phone Network Data
The Daily Star
August 20, 2015

Expert witness John Edward Philips gave testimony to the Special Tribunal for Lebanon Wednesday detailing the technical aspects of mobile communications networks, expected to be the basis of the prosecution’s case.

His testimony is set to span the next two weeks, with a defense cross-examination expected to start next Monday.

Philips is an expert in the area of cell-site analysis specialized in analyzing data generated by 2G GSM systems in the U.K. His testimony builds on that provided by other expert witnesses last month about how the prosecution assembled call sequence records.

The call sequence tables and data records show who the alleged suspects in the trial were calling and from where, at given times. This data is an integral part of the prosecution’s case, as is Philip’s testimony about the inner workings of the system.

Philip’s used simulation cell-site data to explain the underlying features of the mobile network, drawing on existing systems in the U.K. as an example. At one point, Judge Walid Akoum asked Philip why he had not conducted a field study in Beirut at the site of the 2005 suicide bombing that killed former Prime Minister Rafik Hariri.

Philips replied that it was up to the prosecution to determine whether he was required to do a field survey. “I think it was decided it wasn’t appropriate for me to,” he told the judge.

Bangladesh International Crimes Tribunal

Verdict Against Bagerhat Razakar Duo Tuesday
Dhaka Tribune
August 6, 2015

The International Crimes Tribunal (ICT) 1 has set Tuesday to pronounce judgement in the case against Bagerhat Razakar duo Sheikh Sirajul Haque alias Siraj Master and Khan Akram Hossain.

Justice M Enayetur Rahim, chairman of the three-member panel of ICT 1, passed the order ton Wednesday morning, reports BSS.

Abdul Latif Talukder, accomplice of Siraj and Akram and another accused in the case, died of old age complications on July 28 at Dhaka Medical College Hospital.

The first tribunal on June 23 kept the verdict waiting for any day as the prosecution and defence concluded their respective arguments on that day.

A total of 32 prosecution witnesses, including the investigation officer, testified against the trio, whereas five defence witnesses submitted their depositions in support of the accused.

The ICT 1 issued warrant to arrest them on June 10, 2014, and Latif was nabbed by police on that very day. Akram was arrested on June 20 and Siraj on July 21.

The ICT 1 on November 5, 2014, indicted the trio in seven specific charges of crimes against humanity.

Bangladesh Court Sentences 1 Man to Death, Another to Life in Prison for 1971 War Crimes
Minneapolis Star Tribune
August 11, 2015

A war crimes tribunal in Bangladesh sentenced one man to death and another to life in prison Tuesday for collaborating with Pakistan to commit mass killings and other crimes during the 1971 war for independence.

The head judge of a three-member panel, M. Enayetur Rahim, handed down the sentences to Sheikh Sirajul Islam and Khan Akram Hossain in a packed courtroom in Dhaka.

The men faced charges including killing up to 700 civilians in the southwestern district of Bagerhat during the war. They were also found guilty of killing up to 50 minority Hindus in one village in a separate incident.

Bangladesh says Pakistani soldiers, aided by local collaborators, killed 3 million people and raped 200,000 women during the nine-month war, which ended in December 1971.

Prime Minister Sheikh Hasina set up the tribunal in 2010 to punish the collaborators. At least 17 people, mostly from the opposition Jamaat-e-Islami party, have been sentenced to death or life in prison. Two senior party leaders have been executed.

Jamaat-e-Islami is the main partner of the opposition Bangladesh Nationalist Party, which boycotted 2014 general elections and is headed by former Prime Minister Khaleda Zia — Hasina’s archrival.

Jamaat-e-Islami had openly campaigned against Bangladesh’s independence and formed militias to prevent it from breaking away from Pakistan.

War Crimes Investigation in Burma

United Nations Rights Envoy Says Meeting with Myanmar’s Rohingya Blocked
Daily News and Analysis
August 8, 2015

A UN human rights envoy says her whirlwind visit to Myanmar was marred by disappointments: She was barred from meeting long-persecuted Rohingya Muslims.

Talks with several high-ranking officials were denied or cancelled at the last minute. And when she met with government critics, security officials were there, quietly snapping pictures.

Yanghee Lee was in the Southeast Asian nation to assess the human rights situation ahead of general elections, the second vote since the former dictatorship began its bumpy transition to democracy just a few years ago.

But she said today the lack of access and serious disruptions to her program made it impossible to fulfill her mandate.

It was Lee’s third trip to Myanmar since being appointed the country’s UN special rapporteur on human rights just over a year ago. The challenges have increased with each visit. She has waded into sensitive subjects, most notably the treatment of the country’s 1.3 million Rohingya.

Though she asked to visit for 10 days, as she has in the past, she was only given five this time. “I am also disappointed that requested meetings and visits were not granted or suddenly changed or cancelled at the last minute without prior notice,” she said. Lee said she had received credible information that some of her interlocutors had been photographed by security officials. “I also heard that some individuals I met with in previous visits were monitored, photographed and later questioned,” she said.

During Lee’s last visit in January, comments about the persecution of Rohingya drew a stinging response from the government, which accused her of bias and infringing on state sovereignty. Though many members of the religious minority arrived generations ago, most people in this predominantly Buddhist nation of 50 million say all Rohingya are migrants from neighbouring Bangladesh.

Attacks by machete-wielding mobs in 2012 sent more than a quarter-million Rohingya either fleeing by boat or to camps in Rakhine state, where they have limited access to adequate health care or education and are denied freedom of movement.

Lee noted that Rohingya have been told they cannot vote in the November 8 polls, though many could in 2010. “This is an issue that must be seen against the backdrop of institutionalised discrimination against the Muslim population in Rakhine,” she told a press conference at the end of her visit.

The opposition, led by Aung San Suu Kyi, is expected to make substantial gains in upcoming polls at the expense of the military-backed ruling party.

Lee had many concerns ahead of the vote, including the disenfranchisement of large swathes of the population, the harassment and arrest of civil society activists, journalists and those exercising freedom of speech, and the risk that elections in conflict-riddled areas will be called off. “While I am fully aware of the complexities of the situation in Myanmar and the reform process. I cannot hold Myanmar to a lower standard,” she added.

Terrorism

Illinois Man Pleads Guilty to Terrorism Charge
ABC News
Michael Tarm
August 11, 2015

A man from suburban Chicago changed his plea to guilty Tuesday on a terrorism charge that he tried to join an al-Qaida-affiliated group fighting Syrian President Bashar Assad’s regime.

Abdella Ahmad Tounisi, 21, of Aurora, stood in orange jail garb and spoke softly as he answered a federal judge’s questions. Several times he turned to smile at nearly 30 friends and relatives on spectator benches, including his mother and father.

 

Under a 14-page plea deal, Tounisi agreed to plead guilty to one count of attempting to provide material support to a foreign terrorist organization. In return, prosecutors will drop a second count of making false statements in a matter involving international terrorism.

 

At one point, U.S. Judge Samuel Der-Yeghiayan said he wanted Tounisi to explain his crime in a sentence or two in his own words.

 

“I wanted to go to Syria to fight with Jabhat al-Nusra,” Tounisi said, adding the group was also once known as “Al-Qaida in Iraq.”

 

The FBI arrested Tounisi, then 18, as he tried to board a plane in 2013 in Chicago on the first leg of a trip to Syria. That followed a four-month sting during which he engaged with agents through a sham FBI website that purported to link would-be fighters with terrorist groups, court filings say.

 

Just before adjourning Tuesday, Judge Der-Yeghiayan reminded Tounisi he had just pleaded guilty “to a very serious charge of terrorism.”

 

“You are a young man,” he said. “Did you understand everything (today) clearly?”

 

“Yes, your honor,” Tounisi answered.

 

He faces a maximum 15-year prison sentence on the one count. Der-Yeghiayan set sentencing for Dec. 9.

Uzbek Refugee Convicted of Terrorism Conspiracy Charge in US
ABC News
August 12, 2015

A federal jury in Idaho has convicted an Uzbek refugee of three terrorism-related charges after prosecutors said he worked to support a terrorist organization and gathered explosive materials in his Boise apartment.

Fazliddin Kurbanov, a Russian-speaking truck driver who fled Uzbekistan in 2009, was arrested two years ago by federal authorities who said he was determined to carry out an attack on U.S. soil. Prosecutors also said he tried to provide computer support and money to the Islamic Movement of Uzbekistan, which the U.S. government has identified as a terrorist organization.

 

Kurbanov’s attorney countered that Kurbanov was just making empty boasts when he talked about planning an attack, and that the explosive materials in his apartment were for building fireworks and legally available for purchase at hunting and sporting stores.

 

The jury found 33-year-old Kurbanov guilty of three counts that included conspiracy and attempting to support a terrorist organization, but acquitted him of two additional counts. Kurbanov faces up to 10 years in prison for the explosive device charge and up to 15 years for the other two charges when he is sentenced on Nov. 10.

 

He still faces a charge in Utah of distributing information relating to explosives, destructive devices and weapons of mass destruction. Prosecutors in Utah say he taught others how to build bombs so they could target public transportation systems or other facilities. That case is expected to move forward after Kurbanov is sentenced in Idaho’s U.S. District Court.

 

The Idaho trial lasted 20 days, and the jury deliberated for two days before reaching the verdict.

 

“Today’s verdict sends the clear message that where individuals intend to pursue acts of terrorism against the United States — whether in Boise, Idaho or any other community — they will be brought to justice,” said U.S. Attorney Wendy Olson in a prepared statement.

 

Kurbanov’s attorney, Charles Peterson, told jurors during the trial that the case was about fear, not actions. Peterson compared Kurbanov to someone who pretends to be a cowboy, describing his client as “all hat, no cattle.”

 

Peterson said he plans to appeal the verdict to the 9th U.S. Circuit Court of Appeals

Egypt Passes Tough – and Controversial – Counter Terrorism Law
CNN
Anas Hamdan
August 17, 2015

Egypt’s President Abdel Fattah el-Sisi has signed a tough counter terrorism law that rights groups say has ominous implications for journalists, critics and those who simply want to exercise their freedom of expression.

The law gives Egyptian authorities powers usually reserved for states of emergencies, Amnesty International said.

 

It “effectively bans the rights to freedom of expression, peaceful assembly and association,” the group said.

 

The law imposes hefty fines for journalists if their accounts of terrorism-related cases contradict the official version.

 

The government insists the law is necessary at a time when militants are increasingly launching brazen and deadly attacks. The frequency of the attacks picked up after Egypt’s army overthrew President Mohamed Morsy — a former Muslim Brotherhood leader — following a popular uprising in July 2013.

 

Hundreds of Egyptian troops have since been slaughtered.

 

‘Decrees that aim to stifle dissent’

For rights groups, the measures would be counterproductive.

 

“More attacks on civil and political rights and freedoms by security institutions won’t be a successful solution in the face of all these [terrorist] threats,” 14 Egyptian rights groups said in a joint statement in July when the legislation was drafted by the Cabinet.

 

The law gives officials broad immunity from prosecution if they use lethal force, even when it’s not to protect lives, said the Geneva-based United Nations’ International Commission of Jurists. In addition, it grants prosecutors sweeping surveillance and detention powers, the group said.

 

“The promulgation of the Counter-Terrorism Law by President el-Sisi expands the list of repressive laws and decrees that aim to stifle dissent and the exercise of fundamental freedoms,” said Said Benarbia, director of the ICJ’s Middle East and North Africa Program.

Human Rights Group Slams Egypt’s New Anti-Terrorism Law
Business Insider
August 19, 2015

Egypt’s sweeping new counterterrorism law erodes basic rights and defines terrorism so broadly that it could encompass civil disobedience, Human Rights Watch said Wednesday.

The New York-based group says in a report that the law, passed by President Abdel-Fattah el-Sissi last weekend, gives prosecutors greater power to detain suspects without judicial review and order wide-ranging and potentially indefinite surveillance of terror suspects without a court order.

 

“Egypt’s president has taken a big step toward enshrining a permanent state of emergency as the law of the land,” said Nadim Houry, deputy Middle East and North Africa director at Human Rights Watch. “The government has equipped itself with even greater powers to continue stamping out its critics and opponents under its vague and ever-expanding war on terrorism.”

 

El-Sissi, who passed the law, just like dozens of others, in the absence of parliament, has led a harsh crackdown on Islamists and other opponents since 2013, when he led the military overthrow of the Islamist Mohammed Morsi, the country’s divisive first freely elected president.

 

Following Morsi’s ouster, a long-running insurgency in the Sinai Peninsula surged, with stepped-up attacks targeting the military there and on the mainland. The most potent armed group in Sinai pledged allegiance to the Islamic State group last year.

 

The ant-terrorism law was finalized amid a wave of attacks and killings this summer, including the assassination of Egypt’s attorney general by a car bomb in Cairo.

 

Egyptians lived under so-called “emergency laws” for decades that gave police extensive powers, encouraging a culture of excess and brutality among security forces, something that partially inspired the 2011 uprising against longtime autocrat Hosni Mubarak. The law was suspended after his overthrow.

 

“The Egyptian government faces a serious and deadly insurgency,” Houry said. “But eroding basic rights, curtailing dissent, and using ‘terrorism’ as a cudgel against opponents is no way to win the battle for hearts and minds.”

Piracy

Fuel Piracy Incidents Drop in July
IHS Maritime 360
Titus Zheng
August 18, 2015

ReCAAP Information Sharing Centre (ISC), the Singapore-headquartered anti-piracy watchdog, posted no fuel siphoning incidents for the month of July 2015.

“The recent arrest of eight perpetrators involved in the hijacking and siphoning of fuel from Orkim Harmony in the South China Sea on 11 June 2015 could be the reason for no such incident reported in July 2015,” said ReCAAP ISC in its monthly report.

 

The anti-piracy watchdog stated that the perpetrators/syndicate may have chosen to suspend its activities amid heightened precautionary measures taken by shipowners/masters, and other counter-piracy measures deployed by the relevant authorities.

 

None of the 10 incidents reported in July was a Category 1 or fuel-siphoning event. The monthly record stands for the first time since January, when no siphoning of ship fuel/oil was known to have had occurred. This is in stark contrast to the incidents recorded in January-June 2015, when a total of 11 fuel-siphoning incidents took place.

 

Of the 10 reported incidents in July, one was classed as a moderately severe or Category 2 incident. This was followed by one case of low severity or a Category 3 incident, then six cases of petty theft incidents, and two attempted incidents.

 

These 10 incidents represented a 37.5% year-on-year drop in the overall number of 16 incidents in July 2014. Meanwhile, five out of the 10 reported incidents occurred on board ships while under way in the straits of Malacca and Singapore, two on board ships while anchored at ports/anchorages in Ho Chi Minh and Vung Tau, Vietnam.

 

There was one incident on board a ship anchored at Kandla anchorage, India; followed by one incident on board a barge towed by a supply vessel off the coast of Tanjung Kelasa, Malaysia; and finally one incident that happened on a ship anchored off Pulau Batam, Indonesia.

 

“The improvement in the situation in the straits of Malacca and Singapore could be attributed to the increase in the presence of enforcement agencies and better situational awareness of ship masters and crew transiting the area,” added ReCAAP ISC, commending the efforts of the joint co-ordinated Malacca Strait Patrols in safeguarding the sea lanes as well as the enhanced vigilance exercised by the ship masters and crew transiting in the area.

Hijackings of Ships in South East Asia Can Be Mitigated, Says UK-Based Dryad
Astro Awani
August 15, 2015

The recent hijacking of a Singapore-registered tanker, MT Joaquim last Saturday (Aug 8) in the Straits of Malacca has provided yet another timely reminder of the current risks facing seafarers in Southeast Asia, particularly in and around the Malaysian Peninsula, said a UK-based maritime intelligence agency, Dryad Maritime.

On Sunday, the world saw the recovery of the tanker by the Malaysian Enforcement Agency, approximately 14 NM off Tanjung Kling.

 

In its analysis, Dryad said the initial reports of the discovery suggest that 3,000 tonnes of fuel had been siphoned from the vessel before the power to the generator was cut.

 

This incident is the fourth successful hijacking for the purpose of fuel theft in the last 18 months within the Malacca Strait, a trend that is congruent with the overall increase in incidents off the Malaysian Peninsula which has seen a total of 11 hijackings, two unsuccessful, so far in 2015.

 

Dryad provided an immediate incident alert for the hijacking and, in their analysis, highlighted potential contributing reasons behind the increase of fuel thefts in the area.

 

Speaking of the trend, its senior analyst Steve McKenzie explained: “The nature of these incidents within the Malacca Strait is very similar and mirrors those in the South China Sea which have been occurring at regular intervals during the same time frame.

 

The last hijacking took place on June 11, when MT Orkim Harmony was taken 17 NM southwest of Pulau Aur in the South China Sea.

 

Orikim Harmony was subsequently discovered off the coast of Cambodia by the combined efforts of several national security forces who arrested eight Indonesians suspected as the hijackers.

 

Unfortunately five more had escaped after leaving the vessel earlier in an attempt to find a buyer for the vessel’s cargo.

 

This failure to capture all of the gang responsible for the hijacking shows that, despite a high level of commitment to the search by the authorities, bringing all of those involved to justice remains extremely challenging.

 

Because of this and other previous arrests, Dryad indicated that it was likely there would be a slowdown in the number of fuel theft incidents as the syndicates responsible for the crimes recruited new members and gave an original assessment of late July for the resumption of attacks.”

 

Dryad said this analysis focuses not only the on-going risk in Southeast Asia of maritime crime but also highlights the opportunity available to mitigate against the threat of hijackings and similar attacks.

 

The organisation of the groups responsible can be tracked in much the same way as other, legitimate enterprises.

By monitoring the events surrounding incidents of hijacking, not just the theft and recovery of vessels themselves, the future activities of the criminal groups perpetrating these attacks can be better predicted.

 

With this understanding, the continued monitoring and expert analysis of events in and around the Southeast Asia region can provide seafarers with an effective defence against the threat of maritime crime.

 

Dryad continues to assist in such an approach to tackling maritime crime that ensures capable and effective risk mitigation can be implemented to protect against threats at sea.

Life Sentences for Somalis in USS Ashland Piracy Case
13News Now
August 14, 2015

Five Somali pirates must spend life in prison for waging a mistaken and dramatically unsuccessful 2010 attack on Navy ship that was based at Little Creek, a federal appeals court ruled Thursday.

A three-judge panel of the 4th U.S. Circuit Court of Appeals unanimously ruled that a judge erred when he sentenced the defendants to terms ranging from 30 to 42½ years. The court returned the case to U.S. District Judge Raymond Jackson in Norfolk and ordered him to impose the life sentences, which are mandatory for piracy under federal law.

 

Jackson had ruled that because nobody aboard the Navy ship was hurt, life terms were disproportionate to the crime and amounted to unconstitutional cruel and unusual punishment.

 

“It is of no moment that no one aboard the USS Ashland was harmed before the defendants’ attack was thwarted,” Judge Robert King wrote for the appeals court. The mandatory life sentence reflects a rational legislative judgment that piracy in international waters “is a crime deserving of one of the harshest of penalties,” he wrote.

 

13News Now coverage: USS Ashland piracy case

 

The appeals court noted that piracy carried a mandatory death sentence from 1819 until 1909, when Congress reduced the penalty to a mandatory life term.

 

The defendants could appeal either to the full appeals court or the U.S. Supreme Court. Their attorney, Geremy C. Kamens, said he was reviewing the opinion and had no further comment.

 

U.S. Attorney Dana J. Boente said in a written statement that he was pleased with the court’s decision.

 

According to court papers, seven men boarded a small skiff in April 2010 and set out to capture a merchant ship that they could bring to Somalia and hold for ransom. In the dim early-morning light, they mistook the USS Ashland for a cargo vessel. Armed with AK-47 assault rifles and a rocket propelled grenade launcher, the men opened fire on the amphibious landing ship.

 

Sailors fired back with armor-piercing incendiary shells. The first shot killed one pirate, and the second caused the skiff to explode in flames, sending the rest of the men into the Gulf of Aden waters where they were rescued by the sailors.

 

One of the surviving pirates cooperated with federal prosecutors and received a lighter sentence. The other five went to trial and were convicted.

Gender-Based Violence

Amnesty International Row: Should Prostitution Be Decriminalised?
BBC News
Naomi Grimley
August 11, 2015

It’s not often that a liberal newspaper like The Guardian rails against an organisation like Amnesty International.

But last week the paper ran a stinging editorial questioning the wisdom of the human rights group.

 

It said Amnesty would make a “serious mistake” if it advocated the decriminalisation of prostitution – a decision the group’s international council will vote on later on Tuesday.

 

It’s not just The Guardian that is upset. Several women’s groups have got together with a host of big-name actresses – including Meryl Streep, Emma Thompson and Kate Winslet – to criticise Amnesty after a draft of its policy proposal was leaked.

 

Former US President Jimmy Carter has also urged Amnesty to be very careful before it changes its stance.

 

The arguments for decriminalization

 

Amnesty’s leaked proposal says decriminalisation would be “based on the human rights principle that consensual sexual conduct between adults is entitled to protection from state interference” so long as violence or child abuse or other illegal behaviour isn’t involved.

 

Those who favour decriminalisation say it removes the stigma of prostitution and makes it easier for sex workers to go to the police if they need protection from violence.

 

It’s also argued that it empowers prostitutes to strike open deals with their clients about safe sex. There are various groups across the world that support decriminalisation, such as Durbar in India.

 

Germany is one of the countries which liberalised its prostitution laws, together with New Zealand and the Netherlands.

 

One of the main reasons the Germans opted for legalisation in 2002 was the hope that it would professionalise the industry, giving prostitutes more access to benefits such as health insurance and pensions – just like in any other job.

 

Felcitas Schirow, a German brothel owner and sex worker, says the 2002 law has helped give prostitutes self-confidence.

 

“The owners of brothels could invest money,” she says, “and the women could pick a good employer where they felt at home and who met their requirements.”

 

Criticisms

 

But there are many who argue that the German experiment has gone badly wrong with very few prostitutes registering and being able to claim benefits. Above all, the number one criticism is that it’s boosted sex tourism and fuelled human trafficking to meet the demand of an expanded market.

 

Figures on human trafficking and its relationship to prostitution are hard to establish. But one academic study looking at 150 countries argued there was a link between relaxed prostitution laws and increased trafficking rates.

 

Other critics of the German model point to anecdotal evidence of growing numbers of young Romanian and Bulgarian women travelling to Germany to work on the streets or even in mega-brothels.

 

An investigation in 2013 by Der Spiegel described how many of these women head to cities such as Cologne voluntarily but soon end up caught in a dangerous web they can’t easily escape.

 

The Coalition Against Trafficking In Women argues that pimps would be the only ones to benefit from decriminalising prostitution.

 

The Nordic model

 

The women’s groups and anti-trafficking campaigners opposing the Amnesty motion start from the premise that most prostitutes are victims who sell sex simply to survive.

 

They argue that human trafficking and prostitution are inextricably linked.

 

They think the best approach to prostitution is the “Nordic model”. This is where the police go after the purchasers of sex by handing out tough fines or prison sentences to punters, and leave the sex workers in peace. In other words, the aim is to stifle demand.

 

It was a policy adopted by Sweden in 1999 and it’s since been copied by a host of other countries including Iceland, Canada, Norway and most recently Northern Ireland.

 

The European Parliament wants more member countries to adopt the model.

 

Some MPs at Westminster also believe it should replace the confusing patchwork of laws in England and Wales (in summary: buying and selling sex isn’t illegal but brothel-keeping, kerb-crawling and soliciting sex in a public place are).

 

But there are critics of the Nordic model too. Dr Jay Levy has studied the Swedish example and he’s not convinced by police figures suggesting prostitution is in decline there.

 

Instead, he thinks the Swedes have just succeeded in pushing prostitution into more clandestine spaces, making it even more risky.

 

“It basically reduces safety,” he says. “It reduces the amount of time that sex workers have to suss out a situation. And because clients are criminalised, they are reluctant to leave any information by which they can be traced.”

 

Those pushing for decriminalisation inside Amnesty International and their newfound opponents both say they want to protect the human rights of prostitutes.

 

But there’s no getting around it – they each have very different approaches about how that’s best achieved.

 

And they can’t both be right.

ISIS Enshrines a Theology of Rape
The New York Times
Rukmini Callimachi
August 13, 2015

In the moments before he raped the 12-year-old girl, the Islamic State fighter took the time to explain that what he was about to do was not a sin. Because the preteen girl practiced a religion other than Islam, the Quran not only gave him the right to rape her — it condoned and encouraged it, he insisted.

He bound her hands and gagged her. Then he knelt beside the bed and prostrated himself in prayer before getting on top of her.

 

When it was over, he knelt to pray again, bookending the rape with acts of religious devotion.

“I kept telling him it hurts — please stop,” said the girl, whose body is so small an adult could circle her waist with two hands. “He told me that according to Islam he is allowed to rape an unbeliever. He said that by raping me, he is drawing closer to God,” she said in an interview alongside her family in a refugee camp here, to which she escaped after 11 months of captivity.

 

The systematic rape of women and girls from the Yazidi religious minority has become deeply enmeshed in the organization and the radical theology of the Islamic State in the year since the group announced it was reviving slavery as an institution. Interviews with 21 women and girls who recently escaped the Islamic State, as well as an examination of the group’s official communications, illuminate how the practice has been enshrined in the group’s core tenets.

 

The trade in Yazidi women and girls has created a persistent infrastructure, with a network of warehouses where the victims are held, viewing rooms where they are inspected and marketed, and a dedicated fleet of buses used to transport them.

 

A total of 5,270 Yazidis were abducted last year, and at least 3,144 are still being held, according to community leaders. To handle them, the Islamic State has developed a detailed bureaucracy of sex slavery, including sales contracts notarized by the ISIS-run Islamic courts. And the practice has become an established recruiting tool to lure men from deeply conservative Muslim societies, where casual sex is taboo and dating is forbidden.

 

A growing body of internal policy memos and theological discussions has established guidelines for slavery, including a lengthy how-to manual issued by the Islamic State Research and Fatwa Department just last month. Repeatedly, the ISIS leadership has emphasized a narrow and selective reading of the Quran and other religious rulings to not only justify violence, but also to elevate and celebrate each sexual assault as spiritually beneficial, even virtuous.

 

“Every time that he came to rape me, he would pray,” said F, a 15-year-old girl who was captured on the shoulder of Mount Sinjar one year ago and was sold to an Iraqi fighter in his 20s. Like some others interviewed by The New York Times, she wanted to be identified only by her first initial because of the shame associated with rape.

 

“He kept telling me this is ibadah,” she said, using a term from Islamic scripture meaning worship.

 

“He said that raping me is his prayer to God. I said to him, ‘What you’re doing to me is wrong, and it will not bring you closer to God.’ And he said, ‘No, it’s allowed. It’s halal,’ ” said the teenager, who escaped in April with the help of smugglers after being enslaved for nearly nine months.

 

Calculated Conquest

 

The Islamic State’s formal introduction of systematic sexual slavery dates to Aug. 3, 2014, when its fighters invaded the villages on the southern flank of Mount Sinjar, a craggy massif of dun-colored rock in northern Iraq.

 

Its valleys and ravines are home to the Yazidis, a tiny religious minority who represent less than 1.5 percent of Iraq’s estimated population of 34 million.

 

The offensive on the mountain came just two months after the fall of Mosul, the second-largest city in Iraq. At first, it appeared that the subsequent advance on the mountain was just another attempt to extend the territory controlled by Islamic State fighters.

 

Almost immediately, there were signs that their aim this time was different.

 

Survivors say that men and women were separated within the first hour of their capture.

 

Adolescent boys were told to lift up their shirts, and if they had armpit hair, they were directed to join their older brothers and fathers. In village after village, the men and older boys were driven or marched to nearby fields, where they were forced to lie down in the dirt and sprayed with automatic fire.

 

The women, girls and children, however, were hauled off in open-bed trucks.

 

“The offensive on the mountain was as much a sexual conquest as it was for territorial gain,” said Matthew Barber, a University of Chicago expert on the Yazidi minority. He was in Dohuk, near Mount Sinjar, when the onslaught began last summer and helped create a foundation that provides psychological support for the escapees, who number more than 2,000, according to community activists.

 

Fifteen-year-old F says her family of nine was trying to escape, speeding up mountain switchbacks, when their aging Opel overheated. She, her mother, and her sisters — 14, 7, and 4 years old — were helplessly standing by their stalled car when a convoy of heavily armed Islamic State fighters encircled them.

 

“Right away, the fighters separated the men from the women,” she said. She, her mother and sisters were first taken in trucks to the nearest town on Mount Sinjar. “There, they separated me from my mom. The young, unmarried girls were forced to get into buses.”

 

The buses were white, with a painted stripe next to the word “Hajj,” suggesting that the Islamic State had commandeered Iraqi government buses used to transport pilgrims for the annual pilgrimage to Mecca. So many Yazidi women and girls were loaded inside F’s bus that they were forced to sit on each other’s laps, she said.

 

Once the bus headed out, they noticed that the windows were blocked with curtains, an accouterment that appeared to have been added because the fighters planned to transport large numbers of women who were not covered in burqas or head scarves.

 

F’s account, including the physical description of the bus, the placement of the curtains and the manner in which the women were transported, is echoed by a dozen other female victims interviewed for this article. They described a similar set of circumstances even though they were kidnapped on different days and in locations miles apart.

 

F says she was driven to the Iraqi city of Mosul some six hours away, where they herded them into the Galaxy Wedding Hall. Other groups of women and girls were taken to a palace from the Saddam Hussein era, the Badoosh prison compound and the Directory of Youth building in Mosul, recent escapees said. And in addition to Mosul, women were herded into elementary schools and municipal buildings in the Iraqi towns of Tal Afar, Solah, Ba’aj and Sinjar City.

 

They would be held in confinement, some for days, some for months. Then, inevitably, they were loaded into the same fleet of buses again before being sent in smaller groups to Syria or to other locations inside Iraq, where they were bought and sold for sex.

 

“It was 100 percent preplanned,” said Khider Domle, a Yazidi community activist who maintains a detailed database of the victims. “I spoke by telephone to the first family who arrived at the Directory of Youth in Mosul, and the hall was already prepared for them. They had mattresses, plates and utensils, food and water for hundreds of people.”

 

Detailed reports by Human Rights Watch and Amnesty International reach the same conclusion about the organized nature of the sex trade.

 

In each location, survivors say Islamic State fighters first conducted a census of their female captives.

 

Inside the voluminous Galaxy banquet hall, F sat on the marble floor, squeezed between other adolescent girls. In all she estimates there were over 1,300 Yazidi girls sitting, crouching, splayed out and leaning against the walls of the ballroom, a number that is confirmed by several other women held in the same location.

 

They each described how three Islamic State fighters walked in, holding a register. They told the girls to stand. Each one was instructed to state her first, middle and last name, her age, her hometown, whether she was married, and if she had children.

 

For two months, F was held inside the Galaxy hall. Then one day, they came and began removing young women. Those who refused were dragged out by their hair, she said.

 

In the parking lot the same fleet of Hajj buses was waiting to take them to their next destination, said F. Along with 24 other girls and young women, the 15-year-old was driven to an army base in Iraq. It was there in the parking lot that she heard the word “sabaya” for the first time.

 

“They laughed and jeered at us, saying ‘You are our sabaya.’ I didn’t know what that word meant,” she said. Later on, the local Islamic State leader explained it meant slave.

 

“He told us that Taus Malik” — one of seven angels to whom the Yazidis pray — “is not God. He said that Taus Malik is the devil and that because you worship the devil, you belong to us. We can sell you and use you as we see fit.”

 

The Islamic State’s sex trade appears to be based solely on enslaving women and girls from the Yazidi minority. As yet, there has been no widespread campaign aimed at enslaving women from other religious minorities, said Samer Muscati, the author of the recent Human Rights Watch report. That assertion was echoed by community leaders, government officials and other human rights workers.

 

Mr. Barber, of the University of Chicago, said that the focus on Yazidis was likely because they are seen as polytheists, with an oral tradition rather than a written scripture. In the Islamic State’s eyes that puts them on the fringe of despised unbelievers, even more than Christians and Jews, who are considered to have some limited protections under the Quran as “People of the Book.”

 

In Kojo, one of the southernmost villages on Mount Sinjar and among the farthest away from escape, residents decided to stay, believing they would be treated as the Christians of Mosul had months earlier. On Aug. 15, 2014, the Islamic State ordered the residents to report to a school in the center of town.

 

When she got there, 40-year-old Aishan Ali Saleh found a community elder negotiating with the Islamic State, asking if they could be allowed to hand over their money and gold in return for safe passage.

 

The fighters initially agreed and laid out a blanket, where Ms. Saleh placed her heart-shaped pendant and her gold rings, while the men left crumpled bills.

 

Instead of letting them go, the fighters began shoving the men outside, bound for death.

Sometime later, a fleet of cars arrived and the women, girls and children were driven away.

 

The Market

 

Months later, the Islamic State made clear in their online magazine that their campaign of enslaving Yazidi women and girls had been extensively preplanned.

 

“Prior to the taking of Sinjar, Shariah students in the Islamic State were tasked to research the Yazidis,” said the English-language article, headlined “The Revival of Slavery Before the Hour,” which appeared in the October issue of Dabiq.

 

The article made clear that for the Yazidis, there was no chance to pay a tax known as jizya to be set free, “unlike the Jews and Christians.”

 

“After capture, the Yazidi women and children were then divided according to the Shariah amongst the fighters of the Islamic State who participated in the Sinjar operations, after one fifth of the slaves were transferred to the Islamic State’s authority to be divided” as spoils, the article said.

 

In much the same way as specific Bible passages were used centuries later to support the slave trade in the United States, the Islamic State cites specific verses or stories in the Quran or else in the Sunna, the traditions based on the sayings and deeds of the Prophet Muhammad, to justify their human trafficking, experts say.

 

Scholars of Islamic theology disagree, however, on the proper interpretation of these verses, and on the divisive question of whether Islam actually sanctions slavery.

 

Many argue that slavery figures in Islamic scripture in much the same way that it figures in the Bible — as a reflection of the period in antiquity in which the religion was born.

 

“In the milieu in which the Quran arose, there was a widespread practice of men having sexual relationships with unfree women,” said Kecia Ali, an associate professor of religion at Boston University and the author of a book on slavery in early Islam. “It wasn’t a particular religious institution. It was just how people did things.”

 

Cole Bunzel, a scholar of Islamic theology at Princeton University, disagrees, pointing to the numerous references to the phrase “Those your right hand possesses” in the Quran, which for centuries has been interpreted to mean female slaves. He also points to the corpus of Islamic jurisprudence, which continues into the modern era and which he says includes detailed rules for the treatment of slaves.

 

“There is a great deal of scripture that sanctions slavery,” said Mr. Bunzel, the author of a research paper published by the Brookings Institution on the ideology of the Islamic State. “You can argue that it is no longer relevant and has fallen into abeyance. ISIS would argue that these institutions need to be revived, because that is what the Prophet and his companions did.”

 

The youngest, prettiest women and girls were bought in the first weeks after their capture. Others — especially older, married women — described how they were transported from location to location, spending months in the equivalent of human holding pens, until a prospective buyer bid on them.

 

Their captors appeared to have a system in place, replete with its own methodology of inventorying the women, as well as their own lexicon. Women and girls were referred to as “Sabaya,” followed by their name. Some were bought by wholesalers, who photographed and gave them numbers, to advertise them to potential buyers.

 

Osman Hassan Ali, a Yazidi businessman who has successfully smuggled out numerous Yazidi women, said he posed as a buyer in order to be sent the photographs. He shared a dozen images, each one showing a Yazidi woman sitting in a bare room on a couch, facing the camera with a blank, unsmiling expression. On the edge of the photograph is written in Arabic, “Sabaya No. 1,” “Sabaya No. 2,” and so on.

 

Buildings where the women were collected and held sometimes included a viewing room.

“When they put us in the building, they said we had arrived at the ‘Sabaya Market,’” said one 19-year-old victim, whose first initial is I. “I understood we were now in a slave market.”

 

She estimated there were at least 500 other unmarried women and girls in the multistory building, with the youngest among them being 11. When the buyers arrived, the girls were taken one by one into a separate room.

 

“The emirs sat against the wall and called us by name. We had to sit in a chair facing them. You had to look at them, and before you went in, they took away our scarves and anything we could have used to cover ourselves,” she said.

 

“When it was my turn, they made me stand four times. They made me turn around.”

 

The captives were also forced to answer intimate questions, including reporting the exact date of their last menstrual cycle. They realized that the fighters were trying to determine whether they were pregnant, in keeping with a Shariah rule stating that a man cannot have intercourse with his slave if she is pregnant.

 

Property of ISIS

 

The use of sex slavery by the Islamic State initially surprised even the group’s most ardent supporters, many of whom sparred with journalists online after the first reports of systematic rape.

 

“What really alarmed me was that some of the Islamic State’s supporters started denying the matter as if the soldiers of the Khilafah had committed a mistake or evil,” the author wrote. “I write this while the letters drip of pride,’’ she said. “We have indeed raided and captured the kafirahwomen and drove them like sheep by the edge of the sword.” Kafirah refers to infidels.

 

In a pamphlet published online in December, the Research and Fatwa Department of the Islamic State detailed best practices, including explaining that slaves belong to the estate of the fighter who bought them and therefore can be willed to another man and disposed of just like any other property after his death.

 

Recent escapees describe an intricate bureaucracy surrounding their captivity, with their status as a slave registered in a contract. When their owner would sell them to another buyer, a new contract would be drafted, like transferring a property deed. At the same time, slaves can also be set free, and fighters are promised a heavenly reward for doing so.

 

Though rare, this has created one avenue of escape for victims.

 

A 25-year-old victim who escaped last month, identified by her first initial, A, described how one day her Libyan master handed her a laminated piece of paper. He explained that he had finished his training as a suicide bomber and was planning to blow himself up, and was therefore setting her free.

 

Labeled a “Certificate of Emancipation,” the document was signed by the judge of the western province of the Islamic State. The Yazidi woman presented it at security checkpoints as she left Syria to return to Iraq, where she rejoined her family in July.

 

The Islamic State recently made it clear that sex with Christian and Jewish women captured in battle is also permissible, according to a new 34-page manual issued this summer by the terror group’s Research and Fatwa Department.

 

Just about the only prohibition is having sex with a pregnant slave, and the manual describes how an owner must wait for a female captive to have her menstruating cycle, in order to “make sure there is nothing in her womb,” before having intercourse with her. Of the 21 women and girls interviewed for this article, among the only ones who had not been raped were the women who were already pregnant at the moment of their capture, as well as those who were past menopause.

 

Beyond that, there appears to be no bounds to what is sexually permissible. Child rape is explicitly condoned: “It is permissible to have intercourse with the female slave who hasn’t reached puberty, if she is fit for intercourse,” according to a translation by the Middle East Media Research Institute of a pamphlet published on Twitter last December.

 

One 34-year-old Yazidi woman, who was bought and repeatedly raped by a Saudi fighter in the Syrian city of Shadadi, described how she fared better than the second slave in the household — a 12-year-old girl who was raped for days on end despite heavy bleeding.

 

“He destroyed her body. She was badly infected. The fighter kept coming and asking me, ‘Why does she smell so bad?’ And I said, she has an infection on the inside, you need to take care of her,” the woman said.

 

Unmoved, he ignored the girl’s agony, continuing the ritual of praying before and after raping the child.

 

“I said to him, ‘She’s just a little girl,’ ” the older woman recalled. “And he answered: ‘No. She’s not a little girl. She’s a slave. And she knows exactly how to have sex.’ ’’

 

“And having sex with her pleases God,” he said.

War Criminal ‘Confesses to Rapes’
IOL News
Li Zhihui
August 17, 2015

A Japanese war criminal confessed that he raped dozens of Chinese women during Japan’s war of aggression in China, according to archives released on Monday.

The State Archives Administration (SAA) published the seventh of a series of 31 handwritten confessions from Japanese war criminals online.

 

Ikuma Yamamura, born in Yamaguchi Prefecture, Japan in 1919 confessed how he raped Chinese women and killed Chinese civilians from 1940 to 1945.

 

He raped at least 21 women aged between 13 and 50 while invading Hubei and Hunan province and Guangxi Zhuang autonomous region.

 

He also raped another 27 women 43 times in so-called “comfort stations,” according to a confession he made in 1954.

 

He recounted that in August 1944, he saw four Chinese women taking refuge in a tea grove in Leiyang County, Hunan Province.

 

He chased one of them towards the valley and she fell from a 30-meter cliff and died.

 

He caught another woman aged around 23, threatened her with handgun and raped her, according to his confession.

 

He took part in killing four Chinese peasants in Jingmen County, Hubei Province in June 1940 and shot dead another four peasants with a rifle in Hengyang County, Hunan Province in late August 1944, according to the confession.

 

A total of 31 confessions, one each day, from Japanese war criminals are being published online in the run up to commemorations of the end of the war on September 3.

 

The handwritten confessions, translations and abstracts in both Chinese and English, are published on the website of the SAA.

 

The confessions detail crimes perpetrated by the Japanese, including killing, enslavement and poisoning of Chinese people, as well as the use of biological and chemical weapons on live human subjects.

UN Reports

Rape and Sexual Servitude is virtuous to ISIS – The Real War on Women
San Diego 6
Kimberly Dvorak
August 17, 2015

War is hell. And it’s women and children that have bore the brunt of ISIS’ wrath in the worst imaginable way– repeated sexual assault.

“ISIS forces have committed organized rape, sexual assault, and other horrific crimes against Yazidi women and girls,” Liesl Gerntholtz, women’s rights director at Human Rights Watch explained. “Those fortunate enough to have escaped need to be treated for the unimaginable trauma they endured.”

 

For those who denied their captures, a different fate was imposed.

 

“ISIS executed 19 women in the city of Mosul during the past two days,” Iraqi News reported. “The penalty decision came on the background of the refusal to participate in the practice of sexual jihad.” A spokesperson for the Kurdistan Democratic Party (KDP), said that ISIS mistreatment of women and girls was quietly creating dissention in the ranks.

 

So how many girls have the radical terrorists taken into custody? The Yazidi elders say that 5, 270 females were taken a year ago, roughly 2,126 have escaped, but the terrorists have managed to keep approximately 3,144 girls. Of those girls, they’re subjected to theological arguments that pervert a narrow reading of the Koran and allows radical Islamic fighters to not only rape girls, but interpret the gross act to be something to virtuous that needs to be celebrated. “Every time that he came to rape me, he would pray,” said one 15-year-old girl captured on Mount Sinjar, Iraq.

 

 

According to the UN, the girl was sold to an Iraqi fighter in his 20s. “He kept telling me this is ibadah (Islamic scripture meaning worship). He said that raping me is his prayer to God. I said to him, ‘What you’re doing to me is wrong, and it will not bring you closer to God.’ And he said, ‘No, it’s allowed. It’s halal.’” She was eventually rescued nine months after her nightmare began, but others weren’t as lucky.

 

One year ago American’s were introduced to the Yazidi people in northern Iraq. Dubbed one of the oldest religions,’ the world watched as the brutal Islamic State of Iraq and Syria (ISIS) began to massacre defenseless people that lived on Mount Sinjar region of Iraq for centuries. Once the Yazidis were surrounded, the Jihadists systematically divided families into groups of men or women, something Adolf Hitler did in WWII. The men and boys with armpit hair were separated from their families and ruthlessly murdered. However, ISIS fighters had something else in mind for the women and girls – sexual servitude.

 

A story from the New York Times exposed ISIS’s evil tactics of raping young girls that justified the sexual assault with passages from the Koran. For those girls who were fortunate enough to escape and make it to a refugee camp, they retold the horrors of beatings and rape to the media and UN. The pre-teen girls said the radical Islamic fighters would pray to Allah before the rape and tell them the Koran allows them to sexually assault them because they are nonbelievers. When the jihadist is finished, he prays again, repeating the despicable act over and over.

 

The modern day sexual slavery and human trafficking is now legal under ISIS law. The harrowing tale takes place in the open, in the de facto capitol city of Raqqa, Syria. Four years ago Syria was a secular country run by a dictator, but secular. Christians openly prayed, Kurds coexisted with the majority of Muslims and all lived in a modern, highly educated country. Not any more. Recently smuggled footage of daily life in Raqqa (link here) appears to be a normal city with children playing, women in burkas and men carrying AK-47s.

 

But hidden from the cameras are the thousands of sexual slaves and the harsh life ISIS has imposed on their existence.

 

A recent United Nations report concluded: “Members of ISIL/ISIS may have committed crimes against humanity by perpetrating: murder, enslavement, deportation or forcible transfer of population, severe deprivation of physical liberty, torture, rape, sexual slavery, sexual violence and persecution, committed as part of widespread or systematic attacks directed against civilian populations pursuant to or in furtherance of an organizational policy to commit such attacks.”

 

It continues; “by perpetrating murder, mutilation, cruel treatment and torture, outrages upon personal dignity, taking of hostages, the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, directing attacks against the civilian population, directing attacks against buildings dedicated to religion, historic monuments, pillaging a town or place, committing rape, sexual slavery, and other forms of sexual violence, conscripting or enlisting children under the age of 15 years or using them to participate actively in hostilities, ordering the displacement of the civilian population, destroying or seizing the property of an adversary.”

 

The United Nations report further elucidated that the terror organization seeks to exterminate the entire Yazidi population– this constitutes genocide under UN rules.

 

 

The world is now hearing from the survivors of ISIS abuse who retell their stories, describing a well-thought out process that began with the abduction, where they were transported to large warehouses, and then they were cataloged and prepared for sales in viewing rooms. The radical Islamic terrorists even provided a delivery service to their new owners, the ISIS fighters.

 

The rape begins immediately. Often times the Islamic extremists share their sexually enslaved women with fellow fighters or family. Once ISIS owners are finished with the girls, some as young as 7, it’s legal under ISIS law to sell the seriously abused girls, like a common car, replete with a sex slave registered contract.

 

From the beginning of the current Middle East war, Human Rights Watch has carefully documented the organized sexual assault, rape, slavery, as well as forced marriages to ISIS forces. The UN considers the acts to be war crimes and crimes against humanity, something that will send the perpetrators to the Haag once the war ends.

 

But were these hideous acts predicted? In October 2014, ISIS acknowledged in its publication Dabiq that its warriors captured Yazidi women and girls and they considered them the “spoils of war.” They rationalize sexual violence by falsely claiming Islam permits sex with non-Muslim “slaves.” The allegations in the terrorist version of a Time magazine story appear to be a widespread practice and a well-thought out plan of behavior by ISIS, according to Human Rights Watch.

 

“Yazidi women and girls who escaped ISIS still face enormous challenges and continuing trauma from their experience,” Gerntholtz said. “They need urgent help and support to recover their health and move on with their lives.”

 

Human Rights Watch also asserts that ISIS is selling the Yazidis for up to $2,000 US dollars.

 

In a Dabiq article “The revival of slavery before the hour” ISIS has publicly approved enslaving women and children. The story went further and said ISIS was simply reviving a custom justified under Sharia (Islamic law).

 

A white paper document, issued by ISIS’s Research and Fatwa Department states: “It is permissible to buy, sell, or give as a gift female captives and slaves, for they are merely property, which can be disposed of… It is permissible to have intercourse with the female slave who hasn’t reached puberty if she is fit for intercourse; however if she is not fit for intercourse, then it is enough to enjoy her without intercourse… It is permissible to beat the female slave as a [form of] darb ta’deeb [disciplinary beating].”

 

The so-called law sheds light on war crimes that not only hurt their victims, but also devastates family members. The demoralizing act of rape is common practice in today’s Middle East Wars and illustrates that ISIS is willing to use rape as a weapon of war to silence the masses into submission.

 

“The offensive on the mountain (Sinjar) was as much a sexual conquest as it was for territorial gain,” said Matthew Barber, a University of Chicago expert on the Yazidi minority. The professor happened to be in Sinjar when ISIS surrounded the mountain last summer. After witnessing the brutality up close, he created a foundation that provides psychological support for those lucky enough to getaway.

 

 

Experts contend that ISIS is committed to the genocide of all Yazidis. The reason lies in their religious belief’s that make them polytheists. The Yazidis obey a strict oral interpretation rather than a written scripture like the Koran. ISIS views them as unbelievers, and hate them more than Christians and Jews, who can receive limited protections under the Koran as “People of the Book.”

 

Not surprisingly, Islamic theology scholars disagree on the real interpretation of verses that “okay” rape and sanctions slavery. These same scholars argue that slavery in Islamic scripture comparable to the Bible.

 

“In the milieu in which the Quran arose, there was a widespread practice of men having sexual relationships with un-free women,” explains Kecia Ali, an associate professor of religion at Boston University and author of a book on slavery. “It wasn’t a particular religious institution. It was just how people did things.”

 

However, Cole Bunzel, a scholar of Islamic theology at Princeton University, says there are a number of references in the Koran, which states; “Those your right hand possesses.” He contends that phrase has been interpreted to mean female slaves. He also claims the corpus of Islamic jurisprudence, may be allowed today under strict followers of the Koran. “There is a great deal of scripture that sanctions slavery,” said Bunzel. “You can argue that it is no longer relevant and has fallen into abeyance. ISIS would argue that these institutions need to be revived, because that is what the Prophet and his companions did.”

 

In an effort to stop Western girls from traveling to the region to serve in ISIS, British charity groups, like AMAR that is chaired by British Prime Minister David Cameron, have invited Yazidi survivors to speak about the realities of life under the brutal terrorist group.

 

There have been a number of British girls that have left their Westernized life for the terrorist movement or caliphate in Syria. ISIS is tremendously successful in its use of social media and has lured untold numbers of British girls to Syria in the last year.

 

ISIS leader mercilessly raped American hostage

 

While the ongoing war with ISIS in the Middle East has reached a stalemate, US counter-terrorism officials confirmed that former US hostage Kayla Mueller was not only raped by her captors, but the leader of ISIS, Abu Bakr al-Baghdadi, considered the American his own sex slave. Mueller died in a coalition air strike is Syria this past February that targeted other ISIS leaders, but killed several ISIS hostages as well.

 

On Friday, Mueller’s family confirmed to ABC News that the government told them about the sexual assaults. “We were told Kayla was tortured, that she was the property of al-Baghdadi. We were told that in June by the government.” If the loss of one’s child is not enough, the heartache that accompanies the fact a child suffered horrific acts of rape only inflicts more pain.

 

However, the use of rape as a weapon of war is nothing new. During WWII, Adolf Hitler used similar tactics as ISIS to crush the will of the enemy. The Nazi’s split up Jewish women and men killed the males and raped some of the women and children.

 

Taking a page from Hitler, Sun Tzu and Stalin, the self-professed Caliphate leader al-Baghdadi, personally asked that the US humanitarian aid worker be held at his oil and gas minister, Tunisian, Abu Sayyaf’s home, US intelligence officials said. “Baghdadi was at the house of Sayyaf. He delivered Kayla Mueller, live and in person.”

American officials confirmed the allegations from many reputable sources, including two Yazidi girls who were held in the same facility. Sources explained that it’s important to have access to human intelligence sources on the ground. The involvement of Baghdadi also illustrates the ease ISIS’s top leader can move freely and without fear of US knowledge.

 

ISIS uses new weapon mustard gas

 

If, rape, beheadings, stonings, whippings, burnings, were not enough, US officials have confirmed that the ISIS terror organization has used mustard gas on the Kurds in northern Iraq. But how did the ruthless terror group get its hands on the mustard gas?

 

There are a couple of likely scenarios. First, after the fall of Saddam Hussein unknown quantities of mustard gas went missing. The former dictator of Iraq notoriously used poison gas on the Kurds in northern Iraq, which was a major reason the US was duped into believing the dictator had weapons of mass destruction. Once Saddam was captured, he admitted to his FBI interrogator that he made up the WMDs in an effort to keep Iran from attacking Iraq. The other likely source of procuring the poisonous gas is Syria or Libya.

 

The new revelation only complicates the effects on the battlefield.

 

Chemical-weapons experts have long worried that the internationally banned mustard gas could end up in the hands of the ISIS terror group or al-Qaeda affiliates. “Mustard isn’t VX or sarin,” a US military official explained. “It has to be used in high concentrations to be fatal.” The gas was used in World War I, and causes severe blisters, blindness as well as significant respiratory damage.

 

Alistair Baskey, a White House National Security Council spokesman, said the administration is aware of the reports and is seeking additional information. “We continue to take these and all allegations of chemical weapons use very seriously,” he said.

 

In the meantime the world continues to watch in horror.

 

© Copyright 2015 Kimberly Dvorak All Rights Reserved. This copyrighted material may only be copied or reproduced upon the written consent of the author. The unauthorized reproduction or distribution of a copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by fines and federal imprisonment.

UN Humanitarian Chief Says He is ‘Horrified’ by Attacks on Civilians in Syria
U.S. News and World Report
Albert Aji and Bassem Mroue, Associated Press
August 17, 2015

The United Nations humanitarian chief said on Monday he is “horrified” by the attacks on civilians taking place in Syria, singling out in particular government airstrikes the previous day that killed nearly 100 people in a Damascus suburb.

The protracted conflict not only “severely affects” the lives of millions of people in Syria but also threatens the stability of the entire region, Stephen O’Brien said at a press conference in Damascus.

The stark warning comes amid a surge in violence as Syrian government troops, Islamic militants and rebels carried out attacks that killed and wounded dozens Monday, including in President Bashar Assad’s coastal stronghold of Latakia.

“Attacks on civilians are unlawful, unacceptable and must stop,” O’Brien said, speaking at the end of a three-day visit to Syria, during which he met senior officials and visited the central province of Homs.

Government air raids on Sunday killed at least 96 people in the eastern Damascus suburb of Douma, making it one of the deadliest single incidents since the crisis began in March 2011. The airstrikes hit a vegetable market in the suburb, which is a stronghold of the Islam Army rebel group.

Syria’s conflict has killed more than 250,000 people, according to United Nations.

“I am particularly appalled by reports of airstrikes yesterday, causing scores of civilian deaths and hundreds injured, right in the center of Douma,” O’Brien said. “I am horrified by the total disrespect for civilian life in this conflict.”

He appealed to all parties to protect civilians and respect international humanitarian law, and also expressed concerns for 4.6 million Syrian “stuck in hard-to-reach and besieged areas.”

O’Brien also lambasted armed groups for cutting off water in Damascus, saying it was unacceptable to “use access to water and other services as a weapon of war.”

Water cuts have been used before in the Syrian civil war, with Damascus and the northern city of Aleppo, Syria’s largest city and former commercial center, most affected.

In Washington, State Department spokesman John Kirby said the United States “condemns in the strongest possible terms the Assad regime’s deadly airstrikes” on the Douma market.

“The Assad regime’s brutal attacks on Syria’s cities have killed thousands of people and destroyed schools, mosques, markets, and hospitals,” Kirby said, adding that they “demonstrate the regime’s disregard for human life.”

U.N. special envoy Staffan de Mistura also condemned the Douma airstrikes.

“Hitting crowded civilian markets (and) killing almost one hundred of its own citizens by a government is unacceptable in any circumstances,” de Mistura said, repeating calls for the warring sides to urgently start a dialogue toward a political solution.

Also Monday, the rebels in Damascus’ wider eastern suburbs — an area known as Eastern Ghouta — imposed a curfew, fearing more government airstrikes and saying the curfew was imposed out of concern for civilian lives. The rebel statement said the curfew would go on until further notice. Douma is part of Eastern Ghouta.

The Britain-based Syrian Observatory for Human Rights reported 22 air raids on Eastern Ghouta on Monday, including seven in Douma. The Local Coordination Committees said Douma was hit with mortar shells.

Douma-based activist Baraa Abdul-Rahman said the streets there were empty and most people were staying indoors. “There is a situation of terror and fear in the town,” he said via Skype.

In Turkey, the head of the main Western-backed opposition group, the Syrian National Coalition, blasted the government over Douma’s air raids and urged the international community to help bring officials behind the “massacres and war crimes” to the International Criminal Court.

Iraq: UN officials underscore need to bring perpetrators of Sinjar tragedy to justice
UN News Centre
August 3, 2015

United Nations officials have reiterated the need to bring perpetrators of last year’s tragedy, in which militants from the Islamic State in Iraq and the Levant (ISIL) attacked as many as 200,000 civilians – most of them from vulnerable communities – causing them to flee to Sinjar, to justice as well as to increase protection for women and girls from conflict-related sexual violence.

It was a year ago that the attacks took place on members of the Yezidi community, as well as members of the Shi’a Turkmen, Shi’a Shabak and Christian communities, causing them to flee to Sinjar.

“In the days that followed, amidst horrific killings, ISIL hunted down and caught hundreds of women and girls from ethnic and religion minorities, instituting a pattern of sexual violence, slavery, abduction and human trafficking that continues to this day,” the Special Representative of the Secretary-General on Sexual Violence in Conflict, Zainab Hawa Bangura, said in a statement on the first anniversary of the tragedy.

She noted that first-hand accounts from internally displaced persons and refugees, some of whom she met during a visit to the Middle East in April, confirm systematic sexual violence, particularly against Yezidi women and children aged between 8 and 35 years.

Young women are being “sold” in open markets, gifted to foreign fighters, trafficked for sex in the region to raise funds and increase recruitment among ISIL’s ranks, she stated, adding that women and girls are also used for forced procreation, to populate the desired new “Caliphate” with children who can be raised in ISIL’s own “warped image.”

“These appalling crimes of sexual violence in conflict, which may amount to war crimes, crimes against humanity and/or acts of genocide, will not be forgotten. The international community stands united in the goal of pursuing the perpetrators and holding them to account.”

She reiterated her calls on the Global Coalition to Counter ISIL to include protection and empowerment of women and girls in their strategies to counter terrorism.

Also speaking out was the Secretary-General’s Special Representative for Iraq, Ján Kubiš, who strongly condemned ISIL’s continuous and deliberate terrorist strategy to target and exterminate entire communities on the basis of their ethnic background, religious beliefs or faith.

“This is especially harrowing for women, girls and children who are treated with untold brutality. We demand and support the liberation of Yezidi and other women and girls held by ISIL in captivity, often sold and used as sex slaves,” Mr. Kubiš said in a news release.

He stated that the instigators and perpetrators of the crimes committed against civilian populations and on ethnic or religious grounds, some of which may amount to war crimes or crimes against humanity, will sooner or later be brought to justice.

Mr. Kubiš, who is also head of the UN Assistance Mission for Iraq (UNAMI), also acknowledged the efforts and support of the Government of Iraq and of the Kurdistan Regional Government, assisted by the international community, to the affected minorities.

At the same time, he underscored that “a more forceful and coherent action on the protection of minorities must take place, including active steps to ensure zero tolerance to impunity for those committing crimes against any and all humanities.”

NGO Reports

Sudan: Don’t We Matter?: Four Years of Unrelenting Attacks Against Civilians in Sudan’s South Kordofan State
Amnesty International
August 17, 2015

Since armed conflict began in June 2011 between the Sudanese Government and the Sudan People’s Liberation Movement/Army-North (SPLM/A-N), people living in SPLA-N controlled areas of Sudan’s South Kordofan state have endured an unrelenting campaign of aerial and ground attacks by the Sudan Armed Forces (SAF). As the conflict enters unabated into its fifth year, Amnesty International urges the Government of Sudan, the SPLM/A-N, and other governments to take immediate steps to end violations of international human rights law, open up access to humanitarian relief, and uphold the human rights of the people of South Kordofan.

‘Nowhere Safe for Civilians’: Airstrikes and Ground Attacks in Yemen
Amnesty International
August 17, 2015

Civilians in Yemen are bearing the brunt in the conflict raging between Huthi militias (and army units loyal to former President Ali Abdullah Saleh), who seized control of the capital and large parts of the country since last September, and anti-Huthi armed groups (and army units loyal to exiled President Abd Rabbu Mansour Hadi), who are supported by a Saudi Arabia-led military coalition. The Saudi Arabia-led coalition forces have also killed and wounded civilians, in unlawful airstrikes which failed to distinguish between military targets and civilian objects in Huthi-controlled areas.

Syria: ‘Left to Die Under Siege’: War Crimes and Human Rights Abuses in Eastern Ghouta, Syria
Amnesty International
Syria Team
August 11, 2015

Thousands of civilians remain trapped in Eastern Ghouta, an area to the north and east of Damascus that has been continuously besieged by Syrian government forces since 2013. They have little access to food, water, medicines, fuel or electrical power due to the ongoing blockade by government forces, and the actions of non-state armed groups that largely control the area. The government has failed to comply with UN Security Council demands that they allow UN humanitarian agencies free access to deliver aid to civilians under siege across the country.

WORTH READING

Beyond Strategic Rape and between the Public and Private: Violence Against Women in Armed Conflict
By Aisling Swaine
August 13, 2015

This study gets to the heart of examining what counts as conflict-related gender violence under international law. Using empirical research from Liberia, Northern Ireland and Timor-Leste, the study specifically explores and explains variance beyond strategic sexualized violence employed in some conflicts, to analyze the ways that private individualistic violence is influenced by conflict across the three case studies. Proposing a set of variables as possible determinants of wide-ranging forms of violence, the study proposes that on a continuum of “political public violence” to “endemic private violence,” there are forms of violence that may sit somewhere “in between.” The analysis queries where this “in-between”‘ violence should fit in the thresholds provided by law and what consideration should be given to the political and private violence nexus that the research demonstrates.

From Violence to Mobilization: Women, War, and Threat in Rwanda
By Marie E. Berry
August 15, 2015

Theories of social movement emergence posit “threat” as an important concept in explanations of mobilization. This article uses the case of the 1994 Rwandan genocide to investigate whether threats that stem from mass violence can also have a mobilizing effect. Drawing from interviews with 152 women in Rwanda, I reveal how threatening conditions created by the genocide and civil war initiated a grassroots mobilization process among women. This mobilization featured women founding and joining community organizations, engaging in new forms of claims making toward state institutions, and eventually running for political office. Two mechanisms facilitated this process: the social appropriation of feminine values for the reconceptualization of women as legitimate political actors, and the brokerage of connections between individual women, organizations, and government institutions by foreign actors. I conclude by suggesting that this mobilization served as a necessary, but not sufficient, condition for the meteoric rise of women in Rwanda’s politics.

Human (In)Security and Social Identity Group: The Case of Jihadi Terrorism in Africa
By Isaac Kfir
August 15, 2015

This paper examines the link between human insecurity and social identity groups. It is argued that pervasive insecurity, necessitated by a weak and fragile state system and coupled by weak governance, encourages individuals to identify with radical Islamic groups. One way to address this problem is by promoting a stronger human security discourse in addressing the root causes of terrorism.

TRUTH AND RECONCILIATION COMMISSION

Tunisians Support the Truth Commission
AllAfrica
By Olfa Belhassine
August 12, 2015

Tunis – “Have you heard of transitional justice?”, “Do you know what kinds of abuses transitional justice deals with?”, “What do you expect of transitional justice?”, “Have you heard of the Truth and Dignity Commission?”, “Do you have confidence in the Truth and Dignity Commission?”, “Do you think it is necessary that the truth be revealed about serious abuses committed in the past?”, “Do you think the special chambers will be able to deal with past human rights violations?”

These are some of the questions in a quantitative survey on “Tunisians’ perception of transitional justice”, whose results were recently released by the Truth and Dignity Commission.

The survey was commissioned in March by the Tunis office of the United Nations Development Programme (UNDP), which has been supporting the transitional justice process in Tunisia since 2011. It was carried out by the Independent Survey and Statistics Institute (ISTIS).

One of the objectives of the survey was to ask Tunisians directly what this new concept of restorative justice means for them, and gather information about their expectations on judicial procedures and institutional reforms. It questioned 3,547 men and women throughout Tunisia. According to the Truth and Dignity Commission, information from the survey will allow the Commission to strengthen or adjust its future strategy, better support victims and further boost involvement of civil society organizations in its ongoing activities.

According to Anouar Moalla, head of the Commission’s information and communication unit, the ISITIS survey reflects the paradox of the Tunisian context. “We see a real split between some of the elite who only speak ill of us, and a silent majority who are satisfied overall with the work of the truth commission and the way transitional justice is developing,” he says.

Revealing past abuses

The survey found that 65.6% of respondents had heard of transitional justice, especially through television. 78, 5% of those who had heard of transitional justice said they thought it was a “necessity for Tunisia”, especially to “guarantee transition to rule of law”.

While 63.8% thought the process was slow, respondents said they expect it to reveal the truth (76.8%), to install the principle of accountability (44%), provide moral and material reparations to victims (36.3%), and reconcile Tunisians (34%). 86.3% also want criminal procedures against persons who committed human rights violations during the dictatorship, 9.7% even want them deprived of their civil rights and only 8.8 % would prefer them to be granted amnesty.

While 62% had heard of the Truth and Dignity Commission and 67.2 % said they have confidence in it, 48.6% said its main mission should be to “seek the truth about past violations and corruption”. This is another statistic showing that Tunisians questioned in this survey want an end to the totalitarian system based on nepotism. 97.3% of respondents said they think fighting corruption should be one of the main objectives of institutional reforms.

The publication of the ISITIS survey report comes at a crucial time when the Truth and Dignity Commission is under the most serious political pressure since its creation in June 2014. A bill on “national reconciliation” recently proposed to parliament by President Beji Caied Essebsi would divest the Commission of its power to arbitrate in financial cases and end procedures and prosecutions against businessmen and civil servants suspected of corruption.

‘Reconciliation’ Should not Sideline Justice
Jakarta Post
By Param-Preet Singh
August 14, 2015

Indonesia’s government is preparing to lift the lid on decades of gross human rights violations whose victims have gone without redress and whose perpetrators have never been brought to justice.

But there are already serious questions about whether the government will empower the proposed “reconciliation commission” to pursue the minimum standard of acceptable justice: criminal accountability.

President Joko “Jokowi” Widodo is expected to unveil details of the proposed Reconciliation Commission in his Aug. 14 State of the Nation address. Such a commission, first mooted on May 22 by Attorney General Muhammad Prasetyo, would be composed of representatives of the Attorney General’s Office and the National Commission on Human Rights.

The commission’s mission is to seek a “permanent solution for all unresolved human rights abuses” of the past half century.

That’s a tall order. The short list of abuses that Prasetyo said the commission would focus on starts chronologically with the massacres of 1965-1966 that killed up to 1 million people.

The victims included members of the Indonesian Communist Party (PKI), ethnic Chinese, as well as trade unionists, teachers, civil society activists and leftist artists. In the half century since the mass killings, the Indonesian government has repeatedly sought to justify them as a necessary defense against the PKI.

Other atrocities on the commission’s task list include the Trisakti and Semanggi 1 and 2 incidents of 1998 in which unknown gunmen killed unarmed peaceful protesters, an attack by alleged security forces on Wasior, Papua, in 2001 and a campaign of extrajudicial killings linked to security forces between 1982 and 1985 known as the Petrus shootings.

To date, the government has provided few details of the commission’s precise objectives or the resources it plans to allocate it to achieve those goals – but it has already indicated that the commission will not conduct investigations into specific incidents.

On May 13 Attorney General Office’s spokesman Tony Tribagus Spontana said the government was opting for a “reconciliation process” as a means to get “away from the shackles of so-called investigations which will likely bring us to blame one another”.

Spontana hinted that the commission would instead focus on compensating victims through an as-yet-unspecified “proper settlement mechanism”.

Providing compensation or other forms of redress to victims of grave human rights violations is necessary, but it’s only a small fraction of what is needed to obtain justice and achieve longer-term reconciliation.

Nor is it enough to simply uncover the “truth”, as important as that may be. Finding out what happened can fill crucial gaps in a society’s understanding of its past and help direct a future path.

But unless those responsible for the injustices of the past are fully and fairly held accountable for their actions, the wrong message will be sent to prospective perpetrators of future crimes.

Instead of replacing an accountability mechanism, a reconciliation commission empowered to address rights abuses of the scale and severity of those in Indonesia over the past 50 years should pave the way for prosecution of those most responsible.

The proposed commission in Indonesia therefore has the potential to be a much-needed step on the long road to justice, but only if its structure, procedures and practices are consistent with human rights standards.

The government’s approach thus far has not inspired a lot of confidence: a coalition of Indonesian civil society organizations and family members of victims of past atrocities have already criticized the proposed reconciliation commission as no more than an “effort to preserve impunity”.

As truth mechanisms in other countries have made clear, there is no precise recipe for achieving a rights-compliant and effective process, but there are at least three critical ingredients: independence, impartiality and transparency.

The civil society reaction thus far suggests that the government has a long way to go.

Any credible truth and reconciliation commission should operate independently from the government. Efforts by the executive to interfere in the commission’s work – which can take many forms, including efforts to manipulate its budget – could be a death sentence for the commission’s credibility.

Impartiality is similarly non-negotiable. Efforts to frame the mandate in a way that only takes the views of one side, for example, would at best deliver a skewed version of events. A one-sided version of the truth risks exacerbating, rather than easing, tensions.

Transparency is vital to foster national ownership over the commission’s work. Broad consultation with civil society and other key stakeholders at all stages will be essential.

There should be clear, objective criteria to appoint commissioners, the commissioners should reflect the broader society at large, including those victimized, and their appointment should be subject to public confirmation hearings. The commission’s findings should be public.

There are practical considerations as well. Witnesses may need protection because of their participation in the process.

And those responsible for past abuses, who provide statements, should be granted some protection, although these should not be confused with immunities or amnesties, which are inconsistent with international law.

President Jokowi has an opportunity to start the process of bringing meaningful justice to Indonesia’s huge numbers of victims of rights violations.

Ensuring that the reconciliation commission is poised to announce that has the potential to be a historic step in that direction.

But the government would do well to remember that reconciliation will not come from a one-sided version of the truth.

A Truth and Reconciliation Commission for the United States
Reuters
By: Ronald C. Slye
August 15, 2015

It may be time for a U.S. Truth and Reconciliation Commission to deal with America’s legacy of slavery. Political analysts referred to the nation’s “original sin” of slavery while discussing recent police killings of unarmed black men. Other incidents of race-based violence continue to plague U.S. society.

I teach law focusing on transitional justice and have worked with two national truth commissions. From 1996 to 2001, I was a consultant to the Truth and Reconciliation Commission in South Africa, which examined that country’s legacy of racism, slavery and apartheid. From 2009 to 2013, I was one of three international commissioners on Kenya’s Truth, Justice and Reconciliation Commission, which addressed human-rights violations committed over 45 years. Each was established by its respective government as an independent commission. Each panel had its challenges. Yet both shed light on the systematic historical injustices that, like it or not, defined each country.

Could a truth commission work for the United States? It would certainly help Americans confront the nation’s past racial injustices. Truth commissions are designed to analyze the systemic context of historical offenses and trace their continuing effects today.

South Africa’s Archbishop Tutu listens at the 10th anniversary of the country’s Truth and Reconciliation Commission in Cape Town

Truth commissions allow diverse constituencies to tell their sides of the story and examine the history and results of gross violations of human rights. Because they are not courts of law, the panels cannot legally prosecute or punish people. Both these attributes – taking a broad analytical view of historical injustices and their impact on today’s society, as well as providing a safe place for people to discuss their experiences and perspectives – are crucial in any national conversation about the legacy of slavery.

My experience with the two commissions in Africa underscores the importance of who is chosen to lead the panel and the breadth of its mandate.

The commissioners must bring a diversity of skills. People not open to hearing the perspectives of others would do a poor job of fostering the national conversation required. Though it is important to have commissioners with a legal background, my experience shows it is also crucial to have people from other disciplines, including psychology, history, human rights, economics and racial and ethnic conflict.

It is also useful to bring in people from other countries. A number of commissions, including in Kenya, Sierra Leone and Guatemala, did this. It enriches the discussion, for example, to include people from Africa to address the legacy of slavery.

Who heads the commission is critical. South Africa was blessed to have Archbishop Desmond Tutu, who witnessed and suffered through apartheid. Perhaps the United States could turn to President Barack Obama. He has roots in Africa, and his family and ancestry embodies the country’s complex racial history.

During Obama’s recent trip to Africa, he pledged to do more involving U.S.-African relations after he leaves office. Leading a national, or even international, conversation on slavery and its legacy might be a smart way to start that engagement.

Apart from deciding who would staff such a commission, it is also key that the panel’s mandate be broad enough to encompass the complexities of the history and legacy of slavery. At the same time its mandate should not be so broad that it becomes unfocused.

The South African truth commission’s mandate, for example, was later viewed as too narrow. It did not closely examine the crime of apartheid – and so did not engage directly with the effects of institutionalized racism. The Kenyan truth commission’s mandate, by contrast, was too broad. It was charged with examining not only criminal assaults such as assassinations, massacres and rapes but also violations of civil, economic and social rights. The mandate of a truth commission on slavery would need enough flexibility to explore the complexities of the problem and its legacy – but not so broad as to overwhelm the panel and ensure its failure.

The legacy of slavery is complex. There can, of course, be no first-hand testimony. Yet the United States is still influenced by the inheritance that slaves and slaveholders have bequeathed to us.

My experience in Kenya and South Africa taught me that most people cannot be reduced to the categories of good or bad. People responsible for the worst atrocities in each of the countries often had redeeming qualities. Some who perpetrated violations against others were themselves victims of injustice.

One of a truth commission’s most essential functions is to separate the character of a person from the character of his or her actions. We often fall into the trap of wanting to reduce people to good or bad, innocent or guilty.

A person may be guilty of committing a terrible violation, for example, but we do a disservice by viewing him or her only through that single act. My experience taught me that people are more willing to acknowledge and address their own wrongdoing – or that of their ancestors – if they can be assured they won’t be judged solely on those bad acts. Human beings are more complex, whether it is a 19th-century slaveholder or a person today on death row.

I am a descendant of slaveholders. My ancestor, Robert Carter, was one of the wealthiest landholders – and one of the largest slaveholders – in colonial Virginia. His wealth and power earned him the nickname “King” Carter. His descendants include two presidents – William Henry Harrison and Benjamin Harrison – five signers of the Declaration of Independence, Robert E. Lee and me.

King Carter’s grandson, Robert Carter III, held hundreds of slaves and, like many of his contemporaries, administered what he labeled as “stern punishments” that today we would not hesitate to call a crime against humanity. Yet this same man freed more than 450 of his slaves in 1791 – the single largest act of emancipation by any slaveholder.

Carter’s journey to this unprecedented act of defiance and liberation is complicated. In his youth, he did appear more compassionate with his slaves than many of his contemporaries. His conversion to an antislavery Baptist Church may have been the defining moment that compelled him to harness his spiritual beliefs into concrete action.

Yet many of Carter’s contemporaries had exhibited the same traits. Some attended the same church. None of them, however, rejected slavery as Carter did.

For the 450 slaves and their families freed by Carter, it was an extraordinary, life-changing event. Carter was a racist who participated in one of the modern world’s worst crimes against humanity. He also performed a profoundly generous act anchored in the ideals of liberty and freedom taking hold in the new United States.

Carter’s act of freedom and liberation cannot negate his complicity in one of the worst crimes against humanity. They both define him as a person.

America’s national debates about race are too often simplistic and polarizing. They produce copious amounts of heat and noise, but little light. We often fail to acknowledge the complexity of our history, both personal and collective.

Yet one now senses a shift in the public mood. The remarkably swift forgiveness from the families of those killed in the Charleston church – a more pure example of Christian love is hard to find these days – has shamed many of us to reflect rather than react.

The mobilization around removing the Confederate battle flag from government buildings has led to a tentative national conversation about how we memorialize and remember the Civil War, the war in which the promise of freedom anchored in the American Revolution was finally achieved. We are beginning to engage at a national level about the messages conveyed by statues and memorials to the Confederacy. It is a much-needed conversation.

Carter’s contradictions are with us today. A country founded on ideals of freedom, liberty and human rights at the same time enslaved millions of people during most of its first century. There is no question that Americans have made progress in fulfilling the aspirational ideals that animated the founders of this country. There is also no question that the country still has a long way to go to acknowledge and address the violence and oppression that is a part of U.S. history.

A truth commission would not – and could not – solve the problems that America faces because of its original sin of slavery. The appropriate test for a truth commission is whether it furthers the nation’s efforts to engage meaningfully with the present manifestations of past violations.

Refusing to recognize and engage with past injustices compounds the effect of that history and can even result in new injustices. Acknowledging such history can, if we choose, lead to a renewed effort for more Americans to address the legacy of slavery and racism that still runs deep in U.S. society.

Victims of Armed Conflict Pressure Indonesia for Truth and Reconciliation Commission
Channel News Asia
August 19, 2015

Victims of the armed conflict in the Indonesian province of Aceh are demanding an explanation for the violence and killings that plagued the region for three decades from 1976.

They have pressed authorities to set up the Truth and Reconciliation Commission, as promised in the peace agreement signed by the Free Aceh Movement and the Indonesian government in Helsinki ten years ago.

An estimated 12,000 people were killed during the bloody struggle that ended in August 2005.

Acehnese women are among many looking for answers. Many of them lost their husbands, children or family members, with some going missing and others killed.

“I am keen to know why an innocent person was shot at,” says Madam Nurfanidar, whose husband was shot dead in front of her. “I don’t know the answer ’til today.”

Some of the women have been seeking closure for more than five years.

“Eventually I found my husband at the hospital mortuary. I asked whether there was such a person. I checked the register and found my husband’s name, Jamaludin,” said Madam Husni, the wife of a victim.

“His photo matched with the one taken of the body. I confirmed it was my husband. That was three months after he was abducted.”

Thirteen years later, she still does not know why her husband was abducted, and killed.

The Truth and Reconciliation Commission, which promised to provide answers as part of the peace agreement, has yet to be set up.

“From the onset we’ve been in consultation with the central government. But we’ve been told countless times by the central government that the national law on Truth and Reconciliation Commission has been annulled by the Constitutional Court. ” said Abdullah Salleh, Chairman of the Aceh Parliamentary Commission.

However, because the province enjoys special autonomy status, he said he believes there is a way out of the current legal impasse.

“We can possibly continue to push for the Truth and Reconciliation Commission for Aceh if there’s also political will from the central government,” he said.

“It should not be viewed as a process of establishing who is wrong; who is right,” said Hendra Saputra, the Coordinator of KontasAceh, the Aceh Commission for the Disappearances and Victims of Violence.

“But it is a process to unearth what truly happened in Aceh. It is an education for our future generation.”

COMMENTARY AND PERSPECTIVES

The UK Court of Appeal in Serdar Mohammed: Treaty and Customary IHL Provides No Authority for Detention in Non-international Armed Conflicts
By Alex Conte
August 6, 2015

Last week’s judgment in Mohammed v. Secretary of State for Defence is rich in analyses and observations concerning detention in non-international armed conflicts (NIACs). One of the key issues assessed concerns the power to detain in NIACs under IHL.

The Secretary of State’s position on this point commenced with a challenge to traditional classifications of armed conflict, contrasting purely internal conflicts with armed conflicts between two States (para 168). It was contended that the legal position concerning the authority to detain in a NIAC now reflects a more complex factual position than that captured under traditional classifications. A third classification must now be recognized: ‘internationalised’ NIACs. This echoes the ICRC’s Opinion Paper on internment, which speaks of ‘NIACs with an extraterritorial element’, in which “the armed forces of one or more State, or of an international or regional organization, fight alongside the armed forces of a host State, in its territory, against one or more organized non-State armed groups” (page 7).

To paraphrase, ‘if it looks and feels like an international armed conflict, let us apply IHL rules on international armed conflicts by analogy’. This is a dangerous approach that the Court of Appeal carefully avoided, instead focusing on its proposed implications.

Absence of prohibition

A preliminary question before the Court of Appeal was whether IHL allows for non-arbitrary deprivation of liberty, by virtue of the fact that Rule 99 of the ICRC’s catalogue of rules of customary IHL positively prohibits arbitrary detention, but does not expressly prohibit non-arbitrary detention. The Court ultimately accepted, however, that modern international law is such that an approach under which ‘absence of prohibition equals authority’ is outdated and cannot stand as a proper basis of authority for detention (para 197). The Court was right. No credible lawyer could genuinely assert that lack of an express prohibition constitutes authority to deprive persons of their liberty.

Authority to detain derived from customary international law

On this point, it was argued that States involved in internationalised NIACs do detain persons, and have done so for many years on the understanding that they can as of right (para 222). In other words, a customary norm of IHL has developed in the context of this third category of conflict. The Court of Appeal disagreed, concluding that: “…we do not consider that in the present state of the development of international humanitarian law it is possible to base authority to detain in a non-international armed conflict on customary international law” (para 242). The Court is correct, of course, although it left the door open for the possibility that such a custom might crystalise in time.

Authority to detain derived from Common Article 3 and Additional Protocol II

The central focus of this post is on the Secretary of State’s proposition that authority to detain in a NIAC can be derived from IHL treaty law. Relying on Common Article 3 and Articles 5 and 6 of Protocol II, the Secretary of State argued that these provisions imply an authority to detain in NIACs. Support was taken from Gill’s and Fleck’s proposal (see para 240) that although IHL treaty law concerning NIACs is less explicit in stipulating the legal basis for operational detention than IHL treaty law concerning IACs:

“…a generic power to that effect is implicit in Common Article 3, in as much as it identifies as one category of persons taking no active part in hostilities ‘those placed hors de combat by… detention’. Articles 5 and 6 of (Protocol II) also refer to ‘persons deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained’, which makes it clear that the deprivation of physical liberty of a person is contemplated in the law applicable to non-international armed conflicts.”

This approach forms the basis of the ICRC’s assertion that Common Article 3 and Protocol II govern deprivation of liberty in NIAC (page 6). Because Protocol II – which relates exclusively to NIACs – explicitly mentions internment, the ICRC expresses the view that this confirms that internment “is a form of deprivation of liberty inherent to NIAC” (page 7).

The Court of Appeal nevertheless concluded that “it is not possible to base any implication of a power to detain in an internationalised non-international armed conflict purely on a treaty” (para 219). The Court of Appeal most certainly got it right, for various reasons.

If the Geneva Conventions and their Additional Protocols had intended to provide a power to detain in a NIAC, this would have been expressly provided

Normal principles of interpretation require that, where certain matters have been explicitly set out in a legal instrument, the lack of similar explicit reference elsewhere in the legal instrument calls for interpretation that such matters are excluded (the principle of expressio unius). It is therefore relevant to contrast the way in which the authority to detain is dealt with in the context of international versus non-international armed conflicts.

The authority to detain in an IAC is set out in great detail within IHL treaty law. Specific authorisation and substantive grounds are specified in Article 21 of Geneva Convention III (concerning POWs) and Articles 42 and 78 of Geneva Convention IV (concerning civilians posing a serious threat to security). In contrast, the Geneva Conventions and their Additional Protocols are silent concerning grounds or procedures for internment in the context of a NIAC.

In the High Court, Mr Justice Leggatt therefore stated that: “I think it reasonable to assume that if CA3 and/or AP2 had been intended to provide a power to detain they would have done so expressly – in the same way as, for example, Article 21 of the Third Geneva Convention provides a power to intern prisoners of war. It is not readily to be supposed that the parties to an international convention have agreed to establish a power to deprive people of their liberty indirectly by implication and without saying so in terms” (para 242). This conclusion is intimately linked to the question of why IHL treaty law omitted explicit authority to detain in NIACs, influential for the Court of Appeal and considered next.

It is highly plausible that the negotiating States to the Geneva Convention did not want to authorise grounds for detention in NIACs

It is not genuinely conceivable that the parties negotiating the Geneva Conventions should have been so specific in the drafting of Geneva Conventions III and IV concerning detention in the context of IACs and then leave an only vaguely implied authorisation in the context of NIACs.

In fact, there are cogent reasons why negotiating States would not have wanted to establish a legal authority to detain persons in non-international armed conflicts. Given that Common Article 3 applies to “each Party to the conflict”, and that Protocol II applies to non-State armed groups that are able to implement Protocol II, Justice Leggatt focussed on one of the cornerstones of IHL: reciprocity. He observed that: “…providing a power to detain would have meant authorising detention by dissident and rebel armed groups. That would be anathema to most states which face a non-international armed conflict on their territory and do not wish to confer any legitimacy on rebels and insurgents or accept that such groups have any right to exercise a function which is a core aspect of state sovereignty” (para 245). The Court of Appeal thus gave weight to the fact that “the original ICRC draft of the Geneva Conventions which provided for the application of the Conventions in their entirety to non-international armed conflicts was rejected” by the negotiating States (para 178).

If Common Article 3 and Protocol II were to be interpreted as implying an authority to detain in NIACs, it would be necessary (but it is not possible) to identify the scope of such an implied power

As noted, IHL prohibits arbitrary detention. The commentary to Rule 99 explains that State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts, noting also that the arbitrary deprivation of liberty is incompatible with the requirement that detainees be treated humanely, reflected in Common Article 3.

Common Article 3 and Rule 99 in this respect reinforce the general prohibition against arbitrary detention. This prohibition is reflected in Article 9(1) of the ICCPR, which provides that “no one shall be subjected to arbitrary arrest or detention” and requires that any deprivation of liberty be “on such grounds and in accordance with such procedure as are established by law”. These phrases echo the prohibitions against arbitrary deprivation of liberty on the one hand and unlawful deprivation of liberty on the other.

Two requirements arise from this. The first, as confirmed in the Human Rights Committee’s General Comment on the right to liberty (para 11), is that any detention that lacks a legal basis is both unlawful and arbitrary, and thus in violation of both aspects of the prohibition. The second is that the law must be defined “with sufficient precision to avoid overly broad or arbitrary interpretation or application” (para 22). If a person is detained without such legal authorization, the deprivation of liberty is unlawful and thereby in violation of Article 9(1).

From this second requirement, it follows that the law must identify the scope of any express or implied authority to detain. The Geneva Conventions and their Additional Protocols do not point to the scope of any power to intern in NIACs. Indeed, the ICRC’s catalogue of rules of customary IHL points to no express or implied authority to detain in the context of NIACs. It instead recognises that: “The prohibition of arbitrary deprivation of liberty in non-international armed conflicts is established by State practice in the form of military manuals, national legislation and official statements, as well as on the basis of international human rights law”. There is no assertion, or even vague suggestion, that Common Article 3 and/or Protocol II imply a legal authority to detain.

Justice Leggatt was therefore correct to take the view that it is not possible to deduce the scope of any implied power from the Conventions or their Protocols (para 246), with the Court of Appeal concluding that this fact could not be overcome (paras 217-218).

Because the scope of any implied power to intern in NIACs is not discernible, such internment would be arbitrary

General Comment 35 of the Human Rights Committee states (at para 64) that: “Security detention authorised and regulated by and complying with international humanitarian law in principle is not arbitrary” (emphasis added). The non-arbitrary nature of detention in armed conflict is thereby predicated as detention that satisfies the following cumulative elements: (i) it is authorized by IHL; (ii) it is regulated by IHL; and (iii) it is thereby capable of being evaluated as to its compliance with IHL.

Even if the argument of an implied authority under Common Article 3 and Protocol II were to be accepted (element (i)), the argument fails elements (ii) and (iii) of the Human Rights Committee’s test. Geneva Conventions III and IV specify who in an IAC may be detained, on what grounds, in accordance with what procedures and for how long. In the context of a NIAC, however, it is not possible to point to any such regulation, thus falling short of element (ii). The lack of such regulation not only fails element (ii), it also makes it impossible to ascertain whether any detention in a NIAC complies with IHL (element (iii)).

General Comment 35 also distinguishes between international versus non-international armed conflicts as this concerns any derogation from the right to liberty. In the context of an IAC, it acknowledges that IHL includes substantive and procedural rules that help to mitigate the risk of arbitrary detention. Outside that context, however, the Committee spoke of the need for derogating measures (para 66). It is implicit that the Committee did not consider that IHL rules pertaining to detention in a NIAC provide sufficient procedural guarantees mitigating the risk of arbitrary detention.

IHL contemplates internment as a form of deprivation of liberty in NIACs, but only as a matter of fact, not as a matter of law

While Common Article 3 and Protocol II may contemplate that the detention of persons in a NIAC may take place as a matter of fact, it does not follow that these provisions imply a lawful authority for detention. As simply put by the Court of Appeal: “Regulation is not the same as authorisation” (para 180).

The purpose of Common Article 3 and Articles 5 and 6 of Protocol II is simply to guarantee a minimum level of humanitarian treatment

Common Article 3 and Protocol II require that any detained persons be treated humanely (Common Article 3), that they enjoy certain generally applicable rights and safeguards (such as the benefit of medical examinations: Protocol II, Article 5(2)(d)) and that they enjoy certain procedural safeguards pertaining to prosecution and punishment (Protocol II, Article 6). As noted in the ICRC Commentary on the Additional Protocols (at para 4440): “Like common Article 3, Protocol II has a purely humanitarian purpose and is aimed at securing fundamental guarantees for individuals in all circumstances” (emphasis added).

Justice Leggatt thus remarked: “The need to observe such minimum standards is equally relevant to all people who are in fact detained, and does not depend on whether or not their detention in legally justified” (para 244). The Court of Appeal agreed (para 218). In short, the central basis for the Secretary of State’s argument was fundamentally flawed: the provisions relied on do not imply an authority to detain; their purpose is to guarantee minimum levels of humanitarian treatment.

Some Thoughts on the Serdar Mohammed Appeals Judgment
EJIL: Talk
By Marko Milanovic
August 10, 2015

In this post I’d like to add a few thoughts on the recent Court of Appeal judgment in Serdar Mohammed, that we already covered on the blog last week (here and here). The case is now heading to the UK Supreme Court, and may also eventually end up in the European Court of Human Rights – although Strasbourg will be looking carefully at the Supreme Court’s judgment even if the case doesn’t find its way to it.

First off, I think everything that can be said about the ‘big issue’ of authority to detain in NIAC has already been said; those already committed to either view are not going to be dissuaded by some novel argument. For my part, I only wish to note that after the Court of Appeal’s (unanimous!) judgment it looks increasingly unlikely that the Supreme Court will overturn the finding of the lower courts (although that of course may still happen), especially bearing in mind the rigour and detail of these lower judgments. It is very difficult for any court to essentially make up rules (in reasoning by implication/analogy/structure or whatever) on who precisely can be detained in NIACs, for how long and under what exact process, in the absence of any meaningful legislative guidance. This is not a gap that most judges would feel comfortable in filling, especially when easy analogies to IACs or (much worse, between targeting and detention) break down.

Second, this is all the more the case because there is nothing inherently impracticable or unworkable about the result that the lower courts have reached. IHL in NIAC does not prohibit detention. It is simply that positive authority for such detention, including the exact grounds and review mechanisms, must be found elsewhere, primarily in domestic law. The UK government lost the case precisely because it had no law of its own on the matter, and because what it did was contrary to domestic Afghan law (and ISAF policy) as well. All the UK has to do in order to resort to detention in NIACs is to either pass its own legislation or persuade its local allies to do so. That may be difficult to pull off politically, but from a judicial perspective does not seem to be too onerous a demand.

Third, the whole practicality point is reinforced by the government’s litigation strategy before the Court of Appeal. Unlike before the High Court (and unlike say Aurel and Sean’s argument), the government all but conceded that no positive authority to detain existed in ‘normal’, purely internal NIACs (see paras. 168 ff). In other words, if say Scotland tried to secede from the UK by armed force, the UK government would have to pass domestic legislation to detain Scottish nationalist rebels. It in special, ‘internationalised’ NIACs outside UK territory that the government is saying that it has inherent detention authority by analogy to IACs. This is in my view a completely arbitrary distinction, which actually exposes the weakness of the authority argument. And, as the Court correctly found, a close scrutiny of the evidence for a particular customary power in such special NIACs doesn’t pass muster. (I do have a further terminological quibble, in that the Court used the term ‘internationalised’ NIAC for these types of NIACs with an extraterritorial or cross-border element. As I have argued elsewhere, the term ‘internationalization’ is best used to denote the transformation of a prima facie NIAC into a proper IAC, e.g. by virtue of the Tadic overall control test, which is not what Afghanistan was anyway; using it otherwise creates a significant potential for conceptual confusion).

Fourth, I don’t find the Court’s approach to the interpretation of Security Council resolutions and Article 103 of the Charter to be entirely persuasive. In particular, the interpretative presumption (applied in Al-Jedda) that the SC does not intend to abridge human rights absent a clear statement to the contrary is not some ECHR-specific, external constraint on the Council, but should be seen a general principle also flowing from the human rights provisions of the UN Charter, equally applying to all states, ECHR parties or not. But since this point was of little actual relevance in the case I shan’t belabour it further.

Fifth, with regard to a possible domestic UK statute, the Court notes (at paras. 10(ii) and 363(iv)) the possibility of adopting legislation which ‘might have taken the form of a bar of specified claims by foreign nationals or have provided for specific authority for HM armed forces to detain in operations overseas. Both of these were accepted before us on behalf of SM to be possibilities. The latter reflects the approach taken by the United States.’ I see nothing problematic in the latter option, and this is in fact what the UK Parliament should proceed to do (while also considering the possibility of enabling extraterritorial derogations from the Convention, that curiously gets little mention in the judgment). The former option, however, is downright perilous, at least as far as Convention claims are concerned. It would be exceptionally difficult to justify discrimination on the basis of nationality in the security detention context (cf. the Belmarsh case; see also here and here). It would also likely be a losing strategy in the long run, especially bearing in mind the number of people with (dual) UK nationality fighting for Isis or other terrorist groups.

Sixth, with regard to extraterritoriality – it is true, as Sean and Aurel note in their post, that the Court expressed some significant reservations with respect to the more expansive approach to the extraterritorial application of the Convention post Al-Skeini (see paras. 8, 93 ff). Those reservations seem to be twofold: first, that the Strasbourg Court’s jurisprudence is internally inconsistent and that they overruled earlier cases sub silentio without clearly explaining why; and second, that applying human rights in armed conflict poses serious practical difficulties. Both of these concerns are real and valid. But we must also be aware that we would have to work out all of these difficult questions of how human rights apply on the battlefield even in intra-territorial situations – cf. the horrible position Ukraine finds itself in today. As I have argued many times before, the threshold extraterritoriality question should not be used as proxy for avoiding all these tough cases, which need to be looked at and decided on their merits.

I would also note, however, that something very important happens in para. 95 of the judgment, where the Court appears to endorse Leggatt J’ view in Al-Saadoon that the personal model of Article 1 ECHR jurisdiction applies whenever a state uses physical force against a person, thus in effect collapsing this personal model. (I have argued in my book (at 207) precisely that the personal model has to collapse that way and cannot be limited non-arbitrarily, but also that this is not necessarily what the Strasbourg Court wanted to do in Al-Skeini). Essentially the Court of Appeal may already have implicitly decided one of the key issues in Al-Saadoon, thus paving the way to applying the ECHR not only to detention, but to kinetic operations as well.

Seventh, I am surprised that the government persisted with some rather dubious arguments on appeal. First there was the manifestly-destined-to-lose Behrami point on how the conduct of UK troops in Afghanistan is not attributable to the UK, but only to the UN. And then, even more weirdly, that because the UK was acting on behalf of the UN it was entitled to rely on UN immunities before domestic courts. Yes, you read that right – the UK government was saying that it was immune from the jurisdiction of its own courts because it was supposedly acting on the UN behalf. That led to a couple of frankly embarrassing passages in the judgment (para. 76ff), when the Court asked the government whether the UN Secretary-General was even aware that the government was invoking UN immunities (he was not), and the Court then ordering the government to notify the S-G. His legal adviser subsequently replied saying (quite correctly) that ISAF was not a UN operation and that its personnel had no UN immunities to invoke. It is simply beyond me why such arguments – especially the immunities one – ever got made, wasting everybody’s time and energy in the process.

Finally, and on a more trivial note, I’d like to note the very interesting pattern of citation to academic authority (and generally other non-binding persuasive authority as well) in the judgment. Namely, the Court doesn’t seem to cite any scholarship in many difficult parts of the judgment (e.g. those dealing with extraterritoriality, Article 103, relationship between IHRL and IHL, etc), but starts doing that, and at quite length, from para. 171 onwards, when it starts discussing whether there’s authority to detain in ‘internationalised’ NIACs. I have no clear explanation for this – it could be that different judges drafted different parts of the judgment, or that the Court was clear on most of the other issues and needed no help from academics, whereas the detention authority point was so crucial, yet so underdetermined, that recourse to scholarship was particularly helpful.

In any event the Court apparently did find all that scholarship of some use. I’ve also been told that the government argued before the Court of Appeal that it shouldn’t refer to blogs, because we’re supposedly less rigorous and trustworthy than journals since there is no formal mechanism of blind peer review. And I’m really happy that this is not a position that the Court in the end accepted! It cited three EJIL Talk posts (paras. 197, 241), and also extensively discussed a post by Ryan Goodman on Just Security (paras. 208-209). So yay for us.

A New War Crimes Court is Born, but Who is Responsible in Kosovo?
Justice in Conflict
By Aidan Hehir
August 10, 2015

On 3 August, the Kosovo parliament voted to alter Kosovo’s constitution to enable the establishment of a Special Court. The court will investigate evidence uncovered by the European Union Special Investigative Task Force of forced detention, torture, murder and, perhaps most shockingly, organ-harvesting allegedly committed by former members of the Kosovo Liberation Army (KLA) from 1 January 1998 to 31 December 2000.

Kosovo’s war crimes court will deal with important and perhaps unique questions about culpability in transitional justice. The offences under its jurisdiction were committed by agents acting with the sometimes overt and sometimes tacit support of external actors, namely NATO and the UN Mission in Kosovo (UNMIK). They are the same actors that assumed executive authority in Kosovo for half of the three-year time period under examination. The extent to which these actors will be held responsible for sponsoring and / or tolerating criminality conducted by the KLA will have a profound effect on perceptions of the Court’s legitimacy and thus societal stability within Kosovo.

“Monsters” and “Victims”

Kosovo Albanians generally see the KLA as freedom fighters who brought about their “liberation”, albeit with the aid of NATO’s military intervention in March 1999. The idea that the KLA, or the Kosovar Albanian community more generally, could be guilty of human rights violations jars with the popular conception of “Serbian aggressors” and “Albanian victims”. Indicatively, Ramush Haradinaj, the former Prime Minister and current leader of the Alliance for the Future of Kosovo, stated: “By approving this court, we are turning ourselves into a monster…we were not monsters; we were victims.”

Kosovo’s declaration of Independence in February 2008 sparked jubilation amongst the majority Albanian population, but this has given way to spiraling anger and dissatisfaction; unemployment remains cripplingly high, wages are low, and corruption is rife. Between December 2014 and February 2015 some 50,000 Albanians left Kosovo in an ill-fated attempt to reach the EU. In March, the UN ranked Kosovo as the fourth largest source of asylum seekers in the world. Amidst this depravation, many naturally take comfort in KLA nostalgia. Unsurprisingly, the prospect of this source of pride being besmirched doesn’t appeal.

The Court’s perceived legitimacy amongst the Albanian community – which clearly has profound implications for peace and stability within Kosovo – will hinge upon the extent to which the actions of the KLA are acknowledged to have been supported – or simply tolerated – by external actors. This external support involved two distinct phases that lie within the Court’s three-year remit: first, the support afforded to the KLA during the struggle against Yugoslav forces from 1 January 1998 until the end of NATO’s intervention on 10 June 1999; and second, the tacit support provided by the international administration established after NATO’s intervention and lasting until 31 December 2000.

Supporting “Terrorists”?

Prior to NATO’s intervention the KLA were known to engage in attacks against Serbian – and also Albanian – civilians; indeed, in February 1998 the US Envoy to the Balkan stated that “[t]he UCK (KLA) is without any question a terrorist organisation” and, a month later, UN Security Council Resolution 1160 condemned “all acts of terrorism by the Kosovo Liberation Army”. Still, evidence now suggests that a number of Western states covertly sent Special Forces into Kosovo in 1998 to train the KLA (James Pettifer (2012) The Kosova Liberation Army, p. 178). More overtly, during Operation Allied Force NATO coordinated militarily with the KLA.

After NATO’s intervention concluded, the Security Council passed Resolution 1244 giving UNMIK administrative powers in Kosovo and charging NATO-led KFOR with maintaining peace and security. Despite the huge international presence, attacks against the Serbian community increased dramatically when NATO’s campaign ended, precipitating a round of “counter-ethnic cleansing”. Reports by Human Rights Watch and the Red Cross recorded that by October 1999 over 200,000 Serbs and thousands of Roma had fled Kosovo in what was described by the then chief prosecutor for the International Criminal Tribunal for the former Yugoslavia Carla Del Pointe as being “…as serious as what happened there before [NATO’s intervention].”

In its initial phase, the international administration made two fateful decisions: one, to tolerate the mass exodus of Serbs and two, to turn a blind eye to the criminality perpetrated by sections of the former KLA. According to a report produced on behalf of the Council of Europe’s Committee on Legal Affairs and Human Rights, the international administration, “favoured a pragmatic political approach taking the view that they needed to promote short-term stability at any price.”

There was some logic to this of course. Tackling the criminal elements of the KLA would have led to confrontations with an armed guerrilla organisation whose support they needed. Additionally, stopping the Serbian exodus, and confronting those who targeted Serbs, would have been costly, dangerous and angered sections of the Albanian population. Ultimately, the continued presence of Serbs in cities such as Pristina, Peja and Prizren would have constituted a persistent source of instability whereas their relocation to enclaves such as Northern Mitrovica and Gračanica removed various inter-ethnic flash points.

The lack of robust attempts by UNMIK and KFOR to stop ethnic cleansing and secure the presence of Serbs and other minorities scattered across Kosovo emboldened those intent on driving out the Serbs. As a result, Kosovo became, and largely remains, a mono-ethnic polity, with non-Albanian communities largely corralled into particular enclaves and municipalities where, they “face some of the most hostile conditions of any minorities in Europe.”

Collusion

The leader of the KLA at the time of NATO’s intervention was Hashim Thaci. Feted by NATO from 1998 on, Thaci eventually became Prime Minister and currently serves as Kosovo’s foreign minister. The Council of Europe Report, however, described Thaci as the ‘boss’ of an “organized crime network” active since 1998 and which had committed war crimes, intimidated “moderate” Albanians, and was involved in human trafficking, the sex trade, and heroin distribution.

Crucially, the report also notes that Thaci’s network was facilitated by the international administration established after NATO’s intervention. In a particularly damming section, the report states, “…these men would have been convicted of serious crimes and would by now be serving lengthy prison sentences [but for] faltering political will on the part of the international community to effectively prosecute the former leaders of the KLA.” Thus, those who will be the focus of the Court could not have committed their crimes without the support of those in NATO who sought the KLA’s help between 1998 and June 1999, and the international administration established after NATO’s intervention, which consciously chose to tolerate rather than confront them.

Acknowledging the External Dimension

Investigating crimes committed by the KLA is obviously a welcome development in principle. The Court must, however, acknowledge the extent to which international actors tacitly, and at times overtly, supported the growth of the violent criminal network now under investigation. A narrow focus by the Court will isolate the perpetrators of the criminality from the enabling environment in which they operated, thereby obscuring the role played by the international community in the commission of these crimes. The efficacy of transitional justice in this instance, therefore, is predicated on looking beyond a simple “Albanian versus Serb” narrative.

Blaming the KLA alone is likely to enflame social disquiet in a country already exhibiting pronounced popular disaffection with corruption, economic stasis, political mismanagement, and indeed, with those international actors who now seek to cast Albanians as exclusively responsible for the criminality and human rights violations. A failure to extend the scope of the proceedings, however, will naturally anger Albanians who will wonder how they have come to be punished for engaging in activity encouraged, supported and tolerated by those with the legal, political and military power to stop it at the time.

The Pentagon’s Dangerous Views on the Wartime Press
New York Times
By the Editorial Board
August 10, 2015

The Defense Department earlier this summer released a comprehensive manual outlining its interpretation of the law of war. The 1,176-page document, the first of its kind, includes guidelines on the treatment of journalists covering armed conflicts that would make their work more dangerous, cumbersome and subject to censorship. Those should be repealed immediately.

Journalists, the manual says, are generally regarded as civilians, but may in some instances be deemed “unprivileged belligerents,” a legal term that applies to fighters that are afforded fewer protections than the declared combatants in a war. In some instances, the document says, “the relaying of information (such as providing information of immediate use in combat operations) could constitute taking a direct part in hostilities.”

The manual warns that “Reporting on military operations can be very similar to collecting intelligence or even spying,” so it calls on journalists to “act openly and with the permission of relevant authorities.” It says that governments “may need to censor journalists’ work or take other security measures so that journalists do not reveal sensitive information to the enemy.”

Allowing this document to stand as guidance for commanders, government lawyers and officials of other nations would do severe damage to press freedoms. Authoritarian leaders around the world could point to it to show that their despotic treatment of journalists – including Americans – is broadly in line with the standards set by the United States government.

One senior Pentagon official, who was asked to explain when a journalist might be deemed an “unprivileged belligerent,” pointed to the assassination of the Afghan military commander Ahmad Shah Massoud in September 2001. That example is preposterous because Mr. Massoud was killed by assassins who posed as television journalists and hid explosives in a camera. They were not, in fact, journalists.

The manual’s argument that some reporting activities could be construed as taking part in hostilities is ludicrous. That vaguely-worded standard could be abused by military officers to censor or even target journalists.

Equally bizarre is the document’s suggestion that reporters covering wars should operate only with the permission of “relevant authorities” or risk being regarded as spies. To cover recent wars, including the civil war in Libya in 2011 and the war in Syria, reporters have had to sneak across borders, at great personal risk, to gather information. For the Pentagon to conflate espionage with journalism feeds into the propaganda of authoritarian governments. Egypt, for instance, has tried to discredit the work of Western journalists by falsely insinuating that many of them are spies.

Even more disturbing is the document’s broad assertion that journalists’ work may need to be censored lest it reveal sensitive information to the enemy. This unqualified statement seems to contravene American constitutional and case law, and offers other countries that routinely censor the press a handy reference point.

Of the 61 journalists killed last year, 59 percent died covering wars, according to the Committee to Protect Journalists, which published a critical analysis on the Pentagon’s new manual.

In earlier documents on the law of armed conflict, the American military has offered more sensible guidance on the treatment of journalists. A guidebook published in 2012 by the United States Army Judge Advocate General’s Legal Center and School says that journalists should be protected as civilians “provided they take no action adversely affecting their status as civilians.”

A spokesman for the National Security Council declined to say whether White House officials contributed to or signed off on the manual. Astonishingly, the official pointed to a line in the preface, which says it does not necessarily reflect the views of the “U.S. government as a whole.”

That inane disclaimer won’t stop commanders from pointing to the manual when they might find it convenient to silence the press. The White House should call on Secretary of Defense Ashton Carter to revise this section, which so clearly runs contrary to American law and principles.

The New York Times Is Confused About the Law of War Manual
Lawfare
By Alex Loomis
August 12, 2015

The New York Times earlier called on the Pentagon to “repeal[]” “guidelines on the treatment of journalists covering armed conflicts that would make their work more dangerous, cumbersome and subject to censorship.” The editorial board here referred to three aspects of the Department of Defense’s nearly-1200 page Law of War Manual.

(A disclosure: I interned at DoD’s Office of General Counsel this past summer, and did some minor research on other parts of the Manual in the very late stages of its publication process. But I did not work on any part of the Manual pertaining to journalists, direct participation in hostilities, or any other part mentioned in this post or the Times editorial; all views expressed here are also my own and do not necessarily reflect the views of the Department of Defense.)

The Times’ objections were as follows: First, the Times decried the the Manual’s assertion that journalists could in some circumstances be “unprivileged belligerents.” The latter, according to the Manual, “may be made the object of attack by enemy combatants” and “may be punished by enemy States for their engagement in hostilities” (page 162). The Times then blasted as “ludicrous” the Manual’s assertion that “the relaying of information (such as providing information of immediate use in combat operations) could constitute taking a direct part in hostilities” (page 175) and expressed fear that officers might target journalists under this “vaguely-worded standard.” This compared unfavorably to what the editorial characterized as “sensible guidance”—an earlier DoD document that treated journalists as civilians “provided they take no action adversely affecting their status as civilians.”

The Times objected secondly to what it called the Manual’s “bizarre . . . suggestion” that “[r]eporting on military operations can be very similar to collecting intelligence or even spying,” as well as its recommendation that journalists “act openly and with the permission of relevant authorities.”

“[M]ore disturbing” to the Times is the Manual’s assertion that “States may need to censor journalists’ work or take other security measures so that journalists do not reveal sensitive information to the enemy.” The Times objects that “[t]his unqualified statement seems to contravene American constitutional and case law, and offers other countries that routinely censor the press a handy reference point.”

That sounds bad. But all three objections stem from confusion about what the Manual purports to accomplish.

First, the Manual only “represents the legal views of the Department of Defense” on the laws of war (page 1) (emphasis added). It is “a description of the law as of the date of the manual’s promulgation” (page 3) (emphasis added) of war, as reflected in “treaties and customary international law applicable to the United States” (page 7). Even if every DoD lawyer wanted customary international law to protect journalists whatever the facts on the ground, the Manual would reflect what the law is, not what the lawyers wanted it to be. Thus, the Times’s call that DoD “repeal[]” the offensive provisions does not make much sense and in any case would accomplish little: The Manual merely claims to describe the current state of a certain branch of international law, but does not purport to make new law or counsel policy.

Moreover, the Manual does provide legal support for its assertion that journalists may not directly participate in hostilities without also losing civilian status. It cites the First Additional Protocol to the Geneva Conventions, which guarantees civilian protection for journalists “provided that they take no action adversely affecting their status as civilians.” The Times editorial approves of the exact same language, which appeared in an earlier DoD guidance. What the Times really objects to, then, is the Manual’s related suggestion that “the relaying of information (such as providing information of immediate use in combat operations) could constitute taking a direct part in hostilities.” But the Manual clarifies that this does not mean “independent journalism” (page 229). Instead, “the relaying of information” refers to activities described in past DoD and German Military guidance, such as

providing or relaying information of immediate use in combat operations, such as acting as an artillery spotter or member of a ground observer corps or otherwise relaying information to be used to direct an airstrike, mortar attack, or ambush; acting as a guide or lookout for combatants conducting military operations[.]

(page 228).

At the end of the day, all the Manual asserts, as a Pentagon spokesman explained in June, is that “[t]he fact that a person is a journalist does not prevent that person from becoming an unprivileged belligerent.” The Manual makes the same point on page 229:

Although performing these activities [including “independent journalism”] does not make a person liable to being made the object of attack, performing these activities also does not immunize a person from attack if that person takes a direct part in hostilities or is otherwise lawfully made the object of attack.

Likewise, the Manual says that medical and religious personnel also lose protected status if they engage in hostile acts (page 436), citing to the Geneva Conventions.

Second, the Manual does not “conflate[] espionage with journalism.” The Times is correct that the Manual describes “[r]eporting on military operations” as “very similar to collecting intelligence or even spying” (page 175). The Manual then cites to its provisions on the definition of a “spy” (page 151).

A person may only be considered a spy when, (1) acting clandestinely or under false pretenses, (2) in the zone of operations of a belligerent, (3) he or she obtains, or endeavors to obtain, information, (4) with the intention of communicating it to the hostile party.

Reporting on military operations might involve (1), though some journalists will not seek to gather their material under “false pretenses;” it typically will involve (2), and (3), too. But combat journalism does not involve (4). And importantly, the Manual agrees that the absence of (4) makes a big difference. It thus suggests that journalists “act openly and with the permission of relevant authorities” not because DoD believes they are spies but to help them “avoid being mistaken as spies” (page 175) (emphasis added). If the Pentagon really thought journalism and espionage were equivalent, the Manual would not have referred to the conflation of the two as a “mistake.” Nor does the manual sanction that mistake, or insist that journalists opt for one course of action or another. Instead it merely proposes that journalists “should act openly and with permission,” and further that “appropriate identification[] may help journalists avoid being mistaken as spies.”

Third, the Times ignores the possibility that other areas of law may protect journalists. The Manual is a descriptive account of the law of war only; it naturally does “not [] address applicable Government or DoD policies or regulations” (page 3). The Manual reiterates this point on page 2:

This manual is not a substitute for the careful practice of law. As specific legal issues arise, legal advisers should consider relevant legal and policy materials (e.g., treaty provisions, judicial decisions, past U.S. practice, regulations, and doctrine), and should apply the law to the specific factual circumstances.

On this point, bear in mind that the New York Times editorial approved of past DoD guidelines that “offered more sensible guidance on the treatment of journalists,” and further that Manual does not override past regulations or furnish any specific legal guidance. So while DoD may believe that censorship is permitted under the laws of war, it does not necessarily believe censorship is permitted under the laws of the United States. Dictators might, as the Times suggests, point to the Manual “to show that their despotic treatment of journalists – including Americans – is broadly in line with the standards set by the United States government,” but they would not have much basis for doing so.

None of this is to insist that all of the Manual’s provisions about journalism are accurate reflections of international law. The Manual implicitly acknowledges that it may contain errors: its preface notes that “[a]n effort has been made to reflect in this manual sound legal positions” (page v) (emphasis added), and page vi provides an email address to send comments and suggestions. DoD would undoubtedly benefit from hearing outside perspectives, and the New York Times is right to draw critical attention to the Manual. But the Times in this case missed an opportunity to focus its criticisms at DoD’s actual positions and the actual law.

http://justiceinconflict.org/2015/08/13/is-local-icc-justice-necessarily-better-than-icc-justice/
Justice in Conflict
By Mark Kersten
August 13, 2015

A few weeks ago, the International Criminal Court (ICC) came nail-bitingly close to finally holding proceedings in an affected community rather than in The Hague. Ultimately, the ICC’s president decided that the risks of holding part of the trial of Bosco Ntaganda in Bunia in the Democratic Republic of Congo (DRC) outweighed the benefits of serving some ICC justice locally. The debate over whether to hold hearings in Bunia raises broader questions: should the ICC be a traveling court? Should its judges, prosecutors, and defence lawyers present their cases in the very same contexts and in the same communities where the alleged perpetrators committed their crimes? Beyond issues of security, what are the potential costs of doing so?

The International-Domestic Tension and Dream

In the world of international justice and human rights, it is almost universally accepted that accountability is ideally served locally. Justice is best pursued where victims and survivors reside, where evidence can be collected and presented, and where affected communities can see it being done.

In this line of thinking, global institutions that mete out criminal justice, like the ICC, are not ideal purveyors of accountability. Instead, they are seen as necessary bodies that ‘fill in’ the accountability gaps that result from states being unable or unwilling to investigate and prosecute mass atrocities and human rights violations themselves. Put another way, given the option of having no justice or abstracting accountability from affected societies to The Hague, the latter option is always preferable. And here’s the kicker: many believe that if the international community buys into the project of international criminal justice, over time there will eventually be no need for such international institutions. As the commitment to prosecute international crimes spreads, the ICC will work itself out of business and states will be able to justice themselves. As former ICC Chief Prosecutor Luis Moreno Ocampo regularly suggested during his tenure, the ultimate success of the Court would be realised when it had no cases in its dock because states meted out justice themselves.

The hope that the ICC’s mere existence and mandate will lead to a world where states prosecute all mass atrocities and human rights violations themselves is, at worst, a promise of unicorns and rainbows. At best, given the existence of regimes like those in Syria and Sudan, and the impunity gap in states with robust judiciaries like the United States and the United Kingdom, it is certainly a very long-term aspiration. This is not to say that this isn’t a good or useful aim to have. But it shouldn’t detract from the myriad of obstacles international criminal justice face today. It also shouldn’t obfuscate from the potential of bringing ICC justice closer to ‘home’.

A Traveling Court

In recent years, there has been a growing interest in seeing the ICC hold hearings in the communities in which the relevant atrocities were perpetrated. This is wholly in line with the Rome Statute of the ICC, which grants the court’s judges the purview to hold hearings, whenever deemed feasible and desirable, in affected communities. Along with the conviction that justice is best served as close to the source of injustice, many also believe that if affected communities truly got to see the Court in action, their oft-stated criticisms would be tempered and those governments that have made a habit of attacking the institution would have a harder time doing so.

In fact, the idea of holding ICC proceedings locally is nothing new. Court officials have previously considered holding hearings in the trials of Thomas Dyilo Lubanga in the Democratic Republic of Congo (DRC), of senior government officials allegedly responsible for the 2007/08 post-election violence in Kenya, and (in a much less public way) for Saif al-Islam Gaddafi and Abdullah al-Senussi in Libya. Apart from the recent decision not to hold the Ntaganda trial in Bunia, there are ongoing and advanced discussions about holding the confirmation hearings of child soldier turned Lord’s Resistance Army (LRA) commander Dominic Ongwen in Gulu in northern Uganda.

Indicative of just how widespread the conviction is that local ICC justice is necessarily better ICC justice, it is hard, if not impossible, to find any public statement or article arguing that Ongwen should not be tried in Gulu. One piece insisted that such an in situ trial would be “great news”. In a rare moment of agreement, both the prosecution and defence are on board, suggesting the public face of the ICC, as well as Ongwen himself, prefer proceedings to be held in northern Uganda.
They may be right. But there also needs to be some critical reflection of the general assumption that, if only feasible, then ICC proceedings should occur locally. Feasibility, which would include issues such as security, cost, and the existence of the required infrastructure, is just one part of the necessary calculus. Holding ICC trials locally also needs to be appropriate and, crucially, not hinder the pursuit of impartial justice.

In particular, there is some risk that holding trials locally may deepen the Court’s dependence for cooperation from states, many of which are directly and indirectly responsible for mass atrocities. It is this dependence on states that has resulted in the fact that not a single state actor has ever been targeted by the ICC following a state self-referral. Put more bluntly, so long as the Court is dependent on states for providing security and for protecting witnesses and victims, government actors are likely to enjoy impunity. To target them with prosecution would not only eviscerate such cooperation; the responsibility for any ensuing violence or injustice would be pinned on the ICC.

This potential drawback of local ICC justice can be mitigated by holding select, symbolic and limited proceedings in situ. In the Ongwen case, the Court is only considering having the confirmation hearings held in Gulu. However, if these proceedings are successfully held in northern Uganda, they could create an expectation that more proceedings be done in situ – an expectation that the ICC may not be able to afford to meet.

Yes, Local is Ideal. But…

None of the above should be read as an argument against serving ICC justice locally. But we need to think through the implications of doing so – beyond whether it is feasible for security reasons and beyond the mantra that local ICC justice is always and necessarily better ICC justice. More importantly, this is a call to weigh the demands and expectations of victims and survivors. There is no doubt that many would like to see justice served closer to home. Many others, however, would like to see state crimes prosecuted. Their voices need to be heard as well.

The Dark Side of Peace Enforcement: Sexual Exploitation in CAR
Just Security
By Fionnuala Ní Aoláin
August 14, 2015

Media reports continue to trickle through detailing rape and indiscriminate killing by peacekeepers in the Central African Republic (CAR). Despite condemnation by UN Headquarters and some moves toward accountability by those states providing troops, the reports of sexual violence and exploitation continue unabated. Some background to the most recent allegations is set out below. I also explore some of the underpinning legal and political gaps that enable a culture of impunity to thrive in a number of peacekeeping operations.

Sexual Violence

In April 2014, Anders Kompass leaked the United Nations report to French authorities, which detailed the “rape and sodomy of starving and homeless young boys by French peacekeeping troops” at a camp for internally displaced people in Bangui.

The report details abuse by French and nationals of other contributing countries from December 2013 to June 2014. (Access to leaked report as published by Aids Free Project here.)

More reports of sexual violence continued through the summer, with the reported rape of a girl under the age of 16 by Moroccan peacekeeping forces.

Most recently, a 12 year-old girl was raped and two civilians were indiscriminately killed.

UN Responses

“I cannot put into words how anguished and ashamed I am by recurrent reports over the years of sexual exploitation and abuse by UN forces,” said Ban Ki Moon.

On August 13, 2015, the Secretary General also requested an emergency meeting of the Security Council. UN Spokesman Stéphane Dujarric added, “He (the Secretary General) stressed that zero tolerance means zero complacency and zero impunity and that when allegations are substantiated, all personnel whether military, police, or civilians must be held accountable.”

In a May interview with Newsweek, Tony Banbury, the UN’s assistant secretary-general for field support, stated: “We have challenges in achieving criminal accountability justice, but immunity is not one of them.” He did not focus on criticizing or analyzing the placement of prosecutorial responsibility with contributing states, but rather “discussed the “challenges with criminal responsibility and criminal prosecution.” Banbury continued, saying: “The objective is zero cases, but this is an imperfect world. There probably are going to continue to be some cases.”

Graça Machel stated, “the evidence is that things have not changed or improved. Currently, they have gotten even worse.”

Lieutenant General Roméo Dallaire claims that the “chaos” of the conflict and atmosphere “merely makes it available for those who might be so inclined, who might actually tip over and might actually do it.”

France

The Huffington Post reports that “[m]ilitary authorities and the Paris prosecutor’s office opened a preliminary investigation and investigators went to Central African Republic in August.”

The French Ministry claims to be in pursuit of criminal prosecution, which will result in “the strictest sanctions against those responsible for what would be an intolerable attack on the values of a soldier.”

François Hollande has stated: “If some soldiers behaved badly, I will be merciless. If this information is confirmed, there will be exemplary punishment.”

Central African Republic Officials

Central African Republic Justice Minister, Aristide Sokambi spoke out to say that the Central African Republic will also be pursuing prosecution of the French soldiers responsible. He added: “I deplore the fact that we haven’t been joined about this investigation when we have cooperation agreements with France. So I’ve instructed the public prosecutor to open an inquiry and then try to collect evidence already available to the French.”

Despite these protestations of horror at the infliction of sexual harm on minors and women in the CAR, the challenge of addressing sexual violence caused by peacekeepers and international personnel is not a new one. During missions in various African states in the mid-1990s to the present, Belgian, Canadian, Italian, and Pakistani peacekeepers were implicated in crimes ranging from torture to rape to murder. Reports of survival prostitution and human trafficking remain a mainstay of the peacekeeping economy.

What would change this? It is fair to say that peacekeeping has a positive impact in many countries experiencing or emerging from conflict and its absence would create multiple other insecurities for populations in conflict-affected states. Taking away the peacekeepers is not the solution. However, when readily identifiable troop contributing states have been consistently implicated in sexual violence, and have consistently shown an unwillingness to train, discipline, and make their soldiers criminally accountable, then the privilege of UN service should be withheld. The bottom line on preventing sexual violence by peacekeepers in the CAR and elsewhere is accountability.

That accountability starts at the very top. Where a force has been implicated in sexual violence then, the United Nations Secretary General has an obligation to seek the resignation of the force commander. This realisation emerges in the decision taken by the Secretary General Ban Ki-Moon asking General Babacar Gaye, the head of UN peacekeeping operations in the Central African Republic to resign. In a universe of military command responsibility, the head of a peacekeeping mission is ultimately responsible for the systematic exploitation and violence against populations that troops have a responsibility to protect.

The second step is to meaningfully implement investigation and prosecution procedures. In most cases of sexual violence, a UN investigation takes up to or beyond 18 months. By the time the investigation is over, the evidence has disappeared, victims are more vulnerable and the soldiers have been whisked off home. Investigations have to be resourced intensively and become effective mechanisms to show those harmed that their injuries are taken seriously.

The third step is punishment. In most cases of peacekeeper violence, there are few consequences for the perpetrators. Consistent standards must be enforced by the terms of Status of Force Agreements with troop contributing states. These standards must set out consistent processes and penalties for sexual violence without exception. When soldiers know that the penalties and costs are near zero for violence committed in places far from home, a culture of impunity reigns.

The United Nations continues to issues platitudes to the victims, and occasionally senior heads will roll. In reality though, unless there is consistent articulation and enforcement of penalties within the military chain of command, including for commanding officers, the litany of sexual violence will not go away.

What Happens if American-Trained Rebels Commit War Crimes?
Just Security
By Nathalie Weizmann
August 18, 2015

It is widely known that the US is facing numerous challenges in arming and training a select number of fighters as part of a group known as the “New Syrian Forces,” which are part of the Free Syrian Army’s Division 30, in order to fight ISIS on the ground in Syria. A paltry fifty-four such fighters have completed the “train and equip” program so far, with the Pentagon now vetting and training additional fighters. In mid-July, the freshly trained unit was deployed into Syria, but the Nusra Front abducted a number of fighters on July 28, and stormed their encampment on July 31, capturing, wounding or killing several more. Other fighters left the area, and a number went unaccounted for. Last Sunday, the Nusra Front released seven Division 30 fighters, but a Pentagon official anonymously claimed US-trained fighters were not among them.

A number of questions of international law emerge from the US “train and equip” program, some of which were explored in Michael Schmitt’s post earlier this month. An additional question that merits some consideration is the relationship between the US and “New Syrian Forces” fighters, and whether the US bears any responsibility for these fighters’ actions should they commit violations of international humanitarian law.

Reports indicate that special operations forces working under US Central Command are leading the “train and equip” program. At the outset, the program aimed to provide “basic military gear, including ammunition, small arms, trucks and machine guns to mount on them.” We know today the US has provided fighters with heavy machine guns, communications technology, and laser pointers for directing airstrikes. The fighters also receive a stipend from the US.

When the program was launched, the Pentagon declared it would “not have direct tactical control over the trained units once they deploy in Syria,” but instead would be “establishing links” with fighters so the US could “exert indirect influence on Syria’s chaotic battlefield.” Today, the fighters are said to have direct contact with the US-led coalition, but report to Syrian commanders. US Central Command spokesman Col. Pat Ryder has said the fighters are not under US command and control. Once trained, they return to Syrian rebel groups with whom the US has been working. Ryder has added, “[a] key aspect of the Syria Train and Equip program is to train these personnel as units to effectively fight together, which includes training and developing their leaders and ensuring they have a chain of command that can lead forces effectively and appropriately”.

Now, how do these facts fit into the legal framework on State responsibility? Under international law, a State commits an internationally wrongful act when an act or omission is attributable to it and constitutes a breach of its international obligation. A State will bear international responsibility for such a wrongful act, with one of the legal consequences being the obligation to make full reparation for the material or moral injury caused by that act.

As for when a State is responsible for the conduct of a person or group that is not a State organ or empowered to exercise governmental authority, the International Law Commission has set out the following rule:

The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.

In the 1986 Military and Paramilitary Activities in and against Nicaragua decision, the International Court of Justice (ICJ) was faced with deciding whether to attribute the contra forces’ actions to the US, which had largely financed, trained, equipped, armed and organized their military and paramilitary activities. The US had also collaborated closely with the contras to decide and plan operations on the basis of intelligence and logistical support that it had provided to them. The Court held:

that United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, on the basis of the evidence in the possession of the Court, for the purpose of attributing to the United States the acts committed by the contras in the course of their military or paramilitary operations in Nicaragua. All the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by members of the contras without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.

In 2007, the ICJ reiterated the attribution test of “effective control” in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case. In deciding whether the Srebrenica massacres were attributable to the Federal Republic of Yugoslavia, the Court held:

Genocide will be considered as attributable to a State if and to the extent that the physical acts constitutive of genocide that have been committed by organs or persons other than the State’s own agents were carried out, wholly or in part, on the instructions or directions of the State, or under its effective control. This is the state of customary international law, as reflected in the ILC Articles on State Responsibility

Despite the standard of State direction, enforcement, instruction or effective control set out by the ICJ, the International Criminal Tribunal for the Former Yugoslavia (ICTY) articulated a different test in the Tadic case. (With the International Criminal Court later adopting the ICTY approach in the Lubanga case.) In Tadic, the ICTY was deciding whether the Federal Republic of Yugoslavia’s support for the Bosnian Serb armed forces rendered the armed conflict against the government of Bosnia and Herzegovina international. The Appeals Chamber distinguished the required degree of control over private individuals from the required degree of control over an organized armed group such as the Bosnian Serb armed forces. Because a member of an organized group that has structure, a chain of command, and a set of rules will conform to the group’s standards and be subject to its authority, it is sufficient for the group to be under the “overall control” of the State rather than the “effective control” described in Nicaragua. The ICTY explained:

international rules do not always require the same degree of control over armed groups or private individuals for the purpose of determining whether an individual not having the status of a State official under internal legislation can be regarded as a de facto organ of the State. The extent of the requisite State control varies. Where the question at issue is whether a single private individual or a group that is not militarily organised has acted as a de facto State organ when performing a specific act, it is necessary to ascertain whether specific instructions concerning the commission of that particular act had been issued by that State to the individual or group in question …. By contrast, control by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training). This requirement, however, does not go so far as to include the issuing of specific orders by the State, or its direction of each individual operation. Under international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law. The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group.

Of course, the ICJ, and legal experts such as Dapo Akande, have disagreed with the Tadic test for various reasons. For instance, the ICJ has argued that the ICTY standard was used to determine whether or not an armed conflict was international, but that “logic does not require the same test to be adopted in resolving the two issues, which are very different in nature: the degree and nature of a State’s involvement in an armed conflict on another State’s territory which is required for the conflict to be characterized as international, can very well, and without logical inconsistency, differ from the degree and nature of involvement required to give rise to that State’s responsibility for a specific act committed in the course of the conflict.” Akande argues that the ICJ test for attribution of responsibility is correct, while the test of whether or not there is an international armed conflict is simply whether or not force has been used by one State against another, for example by training and arming non-state armed groups.

It may be tempting to consider another avenue of State responsibility for the actions of non-state actors. In 2013, the government of Austria shared its position against supplying arms to the Syrian opposition, stating, “Should supplied arms be used by armed opposition groups in Syria in the commission of internationally wrongful acts, the States who had supplied these arms and had knowledge of these acts would incur State responsibility for their aid and assistance in the commission of such acts.” The position referred to the Article on State responsibility for aiding or assisting in the commission of an internationally wrongful act: “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.”

However, as the rule clearly states, it applies to a State aiding or assisting another State. Referring to this as a test for “complicity,” Derek Jinks has explained why it only applies to assisting or aiding another State:

The structure of the rules suggests that the lower [complicity] threshold suffices for imputing the conduct of another state because the public character of any such acts is clear-that is, other states clearly have international legal personality. Attribution of the private acts, on this view, is appropriate only if the nexus between the state and the ostensibly private actor confers a public character on the conduct in question-recasts the private acts as “state action.”

Finally, by providing Syrian fighters with the means and skills to engage in war, the US also bears the obligation to ensure that they comply with IHL, even if the fighters’ actions aren’t attributable to it. Under Article 1 common to the four Geneva Conventions of 1949 and Additional Protocol I (and also considered to be part of customary law), States must ensure respect for IHL by other participants in an armed conflict. States “may not encourage violations of international humanitarian law by parties to an armed conflict. They must exert their influence, to the degree possible, to stop violations of international humanitarian law.” A useful and recent piece by Knut Doermann and Jose Serralvo explores the content of this obligation of due diligence, which has been reaffirmed by the ICJ as well as the UN Secretary-General, General Assembly and Security Council. The authors explain, “a State with close political, economic and/or military ties (for example, through equipping and training of armed forces or joint planning of operations) to one of the belligerents has a stronger obligation to ensure respect for IHL by its ally. This is precisely the underlying logic of CA 1 …” As what can be considered an offshoot of this, the Arms Trade Treaty, which the US has signed but not ratified, reiterates all States’ obligation to ensure respect for international humanitarian law and translates this into an explicit prohibition of weapons transfers if the transferring State has knowledge that the weapons will be used to commit certain war crimes. Short of such knowledge, a risk assessment must be carried out and the weapons withheld if an overriding risk of serious violations is found.

If we apply the Nicaragua test to what we know about US efforts to train and equip Syrian fighters, the US does not appear to be directing or enforcing the fighters’ actions or to have effective control over their operations. Even under the Tadic test applicable to a State’s influence over organized armed groups, it does not appear that the US is “organi[z]ing, coordinating or planning the military actions of the military group” (and this is assuming the fighters qualify as an organized group for the purpose of this test). Nevertheless, the US does have an obligation to use its influence wisely and cautiously, and to ensure that the fighters comply with international humanitarian law.

Australian Lawmaker Introduces Gay Marriage Bill; Free Vote Blocked

By Samuel Miller
Impunity Watch Reporter, North America and Oceania

CANBERRA, Australia — A maverick lawmaker broke from conservative government ranks on Monday to introduce legislation that would legalize gay marriage in Australia. The historic, cross-party bill to legalize same-sex marriage in Australia is expected to be defeated after Prime Minister Tony Abbott’s ruling coalition blocked their respective MPs from having a free vote.

Prime Minister Tony Abbott. (Photo Courtesy of Irish Independent)

The private member’s bill comes amid heated debate among government MPs about whether to change the law or put the matter to a plebiscite.

The government’s official position is that marriage should only be between a man and a woman.

Warren Entsch, who has been dubbed a progressive redneck by the Australian media, introduced a private member’s bill that would allow same-sex marriage throughout Australia. Entsch conceded that his bill has little chance of reaching a vote, because the ruling coalition decided last week that government lawmakers should be bound by the party line opposing gay marriage.

“A divided nation is what we will be if we continue to allow discrimination in relation to marriage on the basis of a person’s sexuality,” said Entsch.

The opposition party would allow its MPs a free vote on same-sex marriage, and most would be expected to support the bill. The coalition however, is expected to prevent the bill from proceeding to a vote and has already resolved to prevent its MPs being allowed a free vote. Mr. Abbott last week convened a coalition party room meeting on the issue and subsequently announced that the government would oppose any change until the next election but would then support a national vote.

In explaining his rationale, Prime Minister Abbott was quoted by the Irish Independent, saying: “The important thing is that it’s got to be a people’s choice. The decision that came very strongly out of our party room last week was that this should not be the politicians’ decision, it should be the people’s decision, and that’s what will happen in the next term of parliament.”

Several of Mr. Abbott’s Liberal party colleagues attacked the prime minister, saying the party was traditionally in favor of free choice and individual’s rights.

Australia’s Marriage Act specifies marriage as a union between a man and a woman. Officially, the ruling Liberal-National coalition does not support gay marriage. The Opposition Labor party endorses gay marriage, but allows its MPs a conscience vote on legislation.

According to data obtained from BBC World, numerous polls conducted within Australia over the past year show anywhere from 60% to 72% of Australians support gay marriage.

For more information, please see:

Independent — Australian PM shoots down same-sex marriage bill by blocking free vote — 18 August 2015

BBC News — Gay marriage bill introduced to Australian parliament — 17 August 2015

CNN — Australian PM’s gay sister: Marriage equality is a human right — 16 August 2015

NY Times — Australian Government Lawmaker Introduces Gay Marriage Bill — 16 August 2015

Airstrikes Kill 65 People, Exiled Yemen President Proposes Cease-fire

By Brittani Howell

Impunity Watch Reporter, The Middle East

SANA’A, Yemen – Saudi-led airstrikes and shelling by Houthi rebels have killed more than 65 people according to a report from Doctors Without Borders on Friday. Among those killed included at least 20 women and 17 children. According to reports, the airstrikes killed 17 people from one family.

Many gather on rubble of houses destroyed by Saudi-led airstrikes. (Photo courtesy Reuters)

Five of the Saudi-led coalition bombs struck the residential area of Sala. “Those who survived the bombings are searching through the rubble with their bare hands in hope of finding survivors, as well as the bodies of victims of the attack” Salah Dongu’du, a project coordinator for Doctors Without Borders in Tiaz.

Many victims have been unable to reach hospitals. Doctors Without Borders are attempting to provide first aid kits to doctors and nurses so that those who are less critically injured can make it to the hospital receive treatment. Doctors Without Borders admits that this is not enough.

​The United Nations has reported that the death toll has risen to more than 4,500​ deaths, half of which are believed to be civilian deaths. Amnesty International reported earlier this week that war crimes are likely being committed in this conflict.

According to the World Food Program, Yemen is on the brink of famine. Nearly 10 million children are in need of immediate aid according to UNICEF, the United Nations children agency. As much as, 80% of the population is in immediate need of aid.

Taiz, the cultural capital of Yemen, is the gateway to Sana’a, Yemen’s capital. Many fear an even bloodier confrontation in Sana’a, between the Saudi led coalition and the Houthi rebels, as forces allied with exiled President Abd-Rabbu Mansour Hadi continue to push north. The capital of Sana’a was seized by Houthi rebels almost a year ago.

​Yemen’s President Abd-Rabbu Mansour Hadi is preparing a 15-day cease fire. The proposal was given to a United Nations envoy for Yemen in Saudi Arabia’s capital on Friday.

The proposal requires that ​the Houthi rebels and troops loyal to Ali Abduallah Saleh, the former president, end all violence and resume peace talks led by the United Nations.

The ceasefire is to begin when the Shi’ite rebels withdraw their militias from all government and military institutions as well as from all cities and provinces, including Sana’a and Sa’alah.

The proposal also calls for sanctions administered by the United Nations including an arms embargo on Houthi leaders, Saleh, and his sons. The Houthi rebels are also not to interfere with humanitarian aid.

For further information, please see:

Associated Press – Yemen’s President Calls for Ceasefire and Rebel Withdraw – 21 August 2015

Los Angeles Times – Dozens Killed Amid Airstrikes and Fighting in key Yemen City – 21 August 2015

New York Times – Saudis Said to Kill More Than 65 Civilians in Yemen Bombing – 21 August 2015

Reuters – Dozens Killed in Saudi-led Air Strikes in Yemen-aid Group, Houthis – 21 August 2015