INTERNATIONAL CRIMINAL COURT

Central African Republic & Uganda

Official Website of the International Criminal Court
ICC Public Documents – Cases: Central African Republic
ICC Public Documents – Situation in Uganda

Darfur, Sudan

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

Democratic Republic of the Congo

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

TFV Board of Directors Meets to Discuss Lubanga Reparations Plan
ICC-CPI
July 27, 2015

On July 21-22 2015, the Board of Directors of the Trust Fund for Victims (TFV) at the ICC convened in an extraordinary meeting in The Hague to review and discuss progress made in the development of a draft implementation plan for reparations, in the case against Mr Thomas Lubanga, to the benefit of former child soldiers in the eastern Democratic Republic of the Congo (DRC). Acknowledging the preliminary results of the TFV Secretariat’s consultations with local communities and potentially eligible victims, as well as of an international expert meeting, the TFV Board endorsed the approach undertaken and reiterated the strong interest that it has in ensuring that the draft reparations implementation plan is responsive to the rights and expectations of eligible victims of Mr Lubanga’s crimes – and as such, provides a solid foundation for collective reparations awards to be a meaningful redress of the harm that victims have suffered.

In December 2014, the ICC’s Appeals Chamber confirmed Mr Lubanga’s conviction and sentencing for the crimes of conscription and use of child soldiers under the age of 15, in eastern DRC during 2002-2003. In March, the Appeals Chamber issued a judgement and amended order for reparations against Mr Lubanga, which included the instruction to the TFV to submit a draft implementation plan for reparations to eligible direct and indirect victims by September 2015.

This is the first time that the TFV has been tasked by the ICC to develop a reparations plan, triggering its unprecedented mandate enshrined in the Rome Statute to implement reparations to victims of crimes within the jurisdiction of the ICC.

The TFV is taking up this challenging and unprecedented task in close cooperation with the ICC Registry, most notably its sections for victims participation and reparations (VPRS) and for public information (PIDS). From May through to the end of June, the TFV conducted consecutive field missions to the Ituri district in eastern DRC to engage with local communities and to have meetings with groups of potentially eligible victims, both male and female. During the same period, the VPRS conducted a preliminary victim mapping exercise.

A multi-disciplinary expert consultation meeting on reparations was held in Belfast at the Ulster University’s Transitional Justice Institute (26-29 May) and convened over 25 practitioners and experts from a variety of backgrounds and geographies, as well as selected staff from the TFV Secretariat and ICC Registry and representatives of the legal counsel for victims in the Lubanga case. The expert meeting considered, amongst others, methods for victim identification for the purpose of collective reparations, applicable standards of proof and causality, as well as methods to assess harm for the purpose of collective reparations.

Recognising the great progress made and challenges overcome since March, the Board also took note of various steps, both from a legal and practical perspective, that need to be taken before finalising the draft implementation plan. The Board reiterated the significance of preparing the plan in such a manner as to also guide the procedures and content of plans in future reparations cases, while reflecting sufficiently the special character of the case at hand.

Noting the report of the Court’s Office of the Internal Auditor (OIA) on the TFV’s internal control framework of the assistance mandate programmes, the Board was heartened by its overall audit opinion that “the TFV has managed well its assistance programs in successfully reaching victims and the affected communities in northern Uganda and DRC through assistance programs” and that, while areas of improvement can be identified, it is “worth noting that the TFV has made some significant achievements since its inception in 2008.” The OIA and TFV intend to make available a redacted version of the audit report to the States Parties in the Fall of 2015.

At this meeting the TFV Board was not able, as intended, to deliberate and decide on the functioning and desired structure of the TFV Secretariat, since the delivery of the draft revision report came too late to be considered. The TFV Board and the Registrar did agree to develop soonest a written arrangement to clarify the administrative relationship between the Registry and the TFV, including the scope of administrative delegation of authority to the TFV Secretariat.

Recalling the need to strengthen the TFV’s ability to complement payments for reparations in current and future cases before the ICC, as well as the need to sustain and expand the TFV’s activities under its assistance mandate, the TFV Board expresses its appreciation to its donors for the significant voluntary contributions and donations they have made to the TFV. The Board is calling upon all interested States and private donors to assist in further growing the financial capacity of the TFV to assist victims of the most serious crimes to overcome the harm they have suffered and rebuild their lives.

Kenya

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

PEV Victims Want Fresh Probe on Uhuru Kenyatta
All Africa
By Felix Olick
August 5, 2015

The victims’ lawyer in Uhuru Kenyatta’s former case wants ICC Prosecutor Fatou Bensouda forced to probe the President, former head of Public Service Francis Muthaura and former Police Commissioner Hussein Ali.

All three former suspects had their cases withdrawn by the ICC.

In a surprise application to the Pre-Trial Chamber, Fergal Gaynor, an Irish lawyer, termed investigations against Kenyatta, Ali and Muthaura “manifestly ineffective”.

Gaynor turned the heat on Bensouda, dismissing her decision to withdraw charges against the three and cease further investigations as unlawful.

According Gaynor, Bensouda should expand her scope and charge those she adversely mentioned in connection with the killing spree in Naivasha and Nakuru after the disputed 2007 presidential polls.

“The Chamber must do what it can to preserve and defend the Court’s credibility and its deterrent effect, and to ensure that this effect is not weakened through prosecutorial surrender and inaction following a campaign of obstruction of justice,” Gaynor said.

In January this year, Bensouda named sacked Secretary to the Cabinet Francis Kimemia and the late Security Minister John Michuki as among individuals who were central in the planning of attacks in the Rift Valley.

She also named former MPs George Thuo, Mwangi Kiunjuri, Jane Kihara and John Mututho as among the planners. Speaking barely nine days after US President Barack Obama’s historic visit to Kenya, Gaynor said that there is a very strong perception that Kenyatta’s case was dropped through the influence of the Western powers.

In the Monday filing, the lawyer argues that unlike in the case against Deputy President William Ruto, no one has been charged for corruptly influencing witnesses.

“The Prosecution has not publicly instituted any prosecutions relating to bribery or intimidation of witnesses in this case. This problem clearly undermined the Court’s search for the truth in respect of the allegations against Mr Kenyatta and Mr Muthaura,” he stated.

He also said that Bensouda has failed to seek summonses against hostile witnesses or to use their prior recorded testimony. According to Gaynor, even the prosecution bid to refer Kenya to the Assembly of States Parties for non-cooperation came too late.

Journalist Walter Barasa is wanted by the ICC for bribing and attempting to corruptly influence witnesses in the Ruto case. In the same case, ICC judges issued a subpoena against nine witnesses who declined to testify.

Currently, Bensouda has also applied to the judges to allow use of prior recorded testimony of hostile witnesses against Ruto and his co-accused Joshua Sang.

Bensouda named Solicitor General Njee Muturi and Kabete MP Ferdinand Waitutu as among the powerful individuals who influenced her key witnesses to conceal Kenyatta’s involvement in the bloodshed.

Citing several jurisdictions across the globe, including Kenya, Fergal said that victims must have “safeguards against unfettered prosecutorial discretion”.

William Ruto Accused Fatou Bensouda of Misleading Court on Witness Withdrawal
All Africa
By Valentine Obara
August 5, 2015

Deputy President William Ruto wants International Criminal Court judges to take action against Chief Prosecutor Fatou Bensouda, saying she is misleading the court.

Mr Ruto’s lawyer, Karim Khan, claimed that Ms Bensouda misled the court about the circumstances that led to the withdrawal of a witness.

According to Mr Khan, the witness, whose identity has been concealed, was to divulge details on what transpired before, during and after the 2007 general elections.

The witness was to testify on rallies and private meetings that were allegedly attended by Mr Ruto.

Through a submission made to the court by Mr Khan, it is also believed the witness had “details of efforts by prosecution witnesses and third parties to fabricate evidence in order to falsely implicate Ruto in the charges”.

The lawyer says there is evidence to counter the claim by the prosecutor that the witness was withdrawn because he was unwilling to testify.

“Whether the witness was going to provide an account which is favourable to the prosecution is an entirely separate issue and does not justify the prosecution’s silence on such matters,” the lawyer stat

Libya

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

Libya: Flawed trial of al-Gaddafi officials leads to appalling death sentences
Amnesty International
July 28, 2015

Today’s convictions of more than 30 al-Gaddafi-era officials, including the imposition of nine death sentences, follow a trial marred with serious flaws that highlight Libya’s inability to administer justice effectively in line with international fair trial standards, Amnesty International said.

Among the nine people sentenced to death for war crimes and other offences during the 2011 armed conflict are Colonel Mu’ammar al-Gaddafi’s son, Saif al-Islam al-Gaddafi, and the former Head of Military Intelligence, Abdallah al-Senussi. Twenty-three other former officials were given sentences ranging from life imprisonment to five years in prison, four people were acquitted, and one was referred for medical treatment and not sentenced.

“Instead of helping to establish the truth and ensuring accountability for serious violations during the 2011 armed conflict, this trial exposes the weakness of a criminal justice system which is hanging on by a thread in a war-torn country with no central authority,” said Philip Luther, Middle East and North Africa Programme Director at Amnesty International.

“It’s a case that was always going to test the judiciary, but in the end it has shown the difficulties of delivering justice at a time when the rule of the gun overpowers the rule of law.

“The death sentences – the ultimate human rights violation – add further insult to injury, and should be overturned on appeal.”

It is expected the convictions will be appealed to the cassation chamber of Libya’s Supreme Court. The rights to a fair trial of those found guilty today require a full, independent and impartial review of the procedures and evidence used against them and the Supreme Court must address the serious allegations of fair trial and human rights violations in this case when it hears the appeal. To do this it must exercise its power to review both the evidence seen at the trial and the trial court’s interpretation of the law.

Amnesty International has long called for Saif al-Islam al-Gaddafi to be surrendered to the International Criminal Court (ICC), which has an active arrest warrant in his name.

“The Libyan authorities refused to hand Saif al-Islam al-Gaddafi to the ICC to prove they could administer justice nationally. So far they have failed as he has been subjected to a string of violations. He was effectively tried and sentenced in absentia and continues to be held in isolation in a secret location without access to a lawyer,” said Philip Luther.

“The only route to real justice for the victims of serious crimes perpetrated during the 2011 conflict is to surrender Saif al-Islam al-Gaddafi to the ICC and ensure fair trials for all detained al-Gaddafi loyalists.”

Background

The trial of the “symbols of the former regime”, as it is known in Libya, ran from 24 March 2014 to 21 May 2015. Saif al-Islam al-Gaddafi, Abdallah al-Senussi and 35 other officials, including former diplomats, ministers and members of security agencies, were charged with a string of offences during the 2011 uprising and ensuing conflict. These include: indiscriminate shelling, incitement to rape, giving orders to open fire at demonstrators, recruiting and arming mercenaries and engaging in acts of vandalism, looting and killing.

Amnesty International believes that many of the 37 defendants have been denied the right to legal counsel, to remain silent, to be promptly informed of the charges against them, to challenge the evidence brought against them, and to be present at trial. In some cases, detainees were held incommunicado and in unofficial detention places for extended periods.

Saif al-Islam al-Gaddafi, who was held in militia custody in Zintan, and seven other defendants held in Misratah were tried via video link. At times, the poor quality of the satellite link undermined their ability to follow proceedings. Saif al-Islam al-Gaddafi stopped appearing via video link after the start of the conflict in western Libya last year, which ended in the ousting of Zintan brigades from Tripoli, meaning he was effectively tried in absentia.

The organization understands that many defendants were interrogated without having a lawyer present, despite repeated requests and guarantees provided in Libyan law. Allegations of torture and other ill-treatment raised by the defence do not appear to have been duly investigated. Some were assigned lawyers only after the trial had begun, undermining their right to an effective defence.

Many defence lawyers were not able to visit their clients in private in al-Hadba prison, a high security detention facility where the trial was also held. Some dropped the case amid claims that they were threatened, intimidated and harassed.

The prosecution’s case was largely based on evidence obtained from some 240 witness statements though none was called to the court or subjected to cross-examination. By contrast, defence lawyers were only allowed to call two witnesses per defendant and expressed difficulties in calling witnesses due to the security situation.

The trial was held against the backdrop of renewed conflicts, which led to the collapse of central authority and a split of state institutions in mid-2014. Since then, all sides have perpetrated serious human rights abuses and violations of international humanitarian law, some of which amount to war crimes. The violence has substantially reduced the international community’s ability to monitor the proceedings, and has further weakened the criminal justice system. The Ministry of Justice of the internationally recognized government based in the east said that it would not recognize the court’s verdict.

LFJL is concerned that the absence of fair trial standards during Gaddafi official trials will jeopardise the right of victims to justice.
Lawyers for Justice in Libya
July 29, 2015

Lawyers for Justice in Libya (LFJL) is concerned that the absence of fair trial standards during Gaddafi official trials will jeopardise the right of victims to justice.

On 28 July 2015, the Tripoli Court of Assize (the Court) sentenced 37 Gaddafi administration officials for offences related to suppressing the 2011 Libyan uprising and for crimes committed during the conflict. Among the officials were Saif al-Islam Gaddafi, son of former Libyan leader Muammar Gaddafi, and Abdullah al-Senussi, the administration’s former intelligence chief. LFJL is concerned that the defendants’ were denied their fair trial rights and that proceedings were not transparent or accessible to independent observers. This in turn has undermined the opportunity of victims to participate in process and achieve justice for serious human rights violations.

Following their detention and throughout the legal proceedings, many of the defendants have stated regularly that they have been denied their fundamental rights. Complaints have included the denial of the right to be promptly informed of the charges brought against them, to access legal counsel, to challenge the evidence brought against them, and to be present at their trial. There have also been serious allegations that the defendants were subjected to ill treatment during their detention. As a result, several human rights agencies, including the United Nations Office of the High Commissioner for Human Rights, have expressed doubts that international fair trial standards were upheld.

LFJL is also concerned that the legal proceedings failed to determine individual criminal responsibility for the atrocious crimes or to substantively evidence the chain of command which enabled such acts to be committed. Instead, many of the defendants were held responsible by association for crimes attributed to the Gaddafi administration, without evidencing their individual involvement with specific acts. The admissibility of new evidence to the proceedings was also extremely restricted. This prevented the establishment of a detailed account of the truth behind the serious human rights violations considered during the proceedings.

“Through failing to ensure the defendants’ right to a fair trial, the verdicts released on the 28 July risk undermining the possibility of justice being delivered,” stated Thomas Ebbs, Acting Director for LFJL. “In doing so, the proceedings may have denied victims and their family members the opportunity to hear the truth and for those responsible to be found conclusively accountable.” he added.

The deterioration of the security situation in Libya and the politically sensitive nature of the cases also raise uncertainty as to the Court’s ability to reach impartial and independent decisions. The Libyan judicial system, as a whole, has been effectively suspended for all but exceptional criminal cases since February 2014, due to an increase in the use of violence against judicial bodies intended to obstruct and influence judicial proceedings. To account for these concerns, it was vital that the trial sessions considering the Gaddafi officials’ cases be transparent and open in their decision making processes.

Despite the amendments made to articles 241 and 243 of Libya’s Code of Criminal Procedure to allow trial sessions to be broadcasted, several sessions were only aired partially and others not all. Trial monitoring and public access to the proceedings was also extremely restricted by the Court.The United Nation’s Support Mission In Libya’s (UNSMIL) observers were prevented from attending trial proceedings in person from June 2014. The lack of independent monitoring throughout raises serious concerns regarding the Court’s willingness to hold fair and proceedings, LFJL is therefore strongly concerned over the legitimacy of the legal decision making which informed the Court’s decisions in its rulings.

LFJL calls on the Supreme Court to review fully the verdict in an independent and impartial manner. In doing so, the Supreme Court must take into account and remedy the current concerns regarding the legitimacy of the verdict reached. “The recent trial proceedings raise serious concerns about the Libyan legal system’s ability to deliver justice for human rights violations. However, they also create the opportunity for Libya to openly address its systematic faults and, in doing so, protect the rights of defendants and victims of crimes. This is a transitional moment which will affect both the delivery of justice in this case and countless other cases in the future” stated Ebbs.

Libya: Jail Video Alleges Gaddafi Son Abused
Human Rights Watch
August 3, 2015

Libyan authorities responsible for the al-Hadba corrections facility in Tripoli should immediately investigate the apparent ill-treatment of detainees, including al- Saadi Gaddafi, a son of Muammar Gaddafi. A nine-minute video made available by clearnews, an online news site, on August 2, 2015, appears to show officials and guards at al-Hadba prison interrogating and ill-treating several detainees, including al-Saadi Gaddafi.

Prison officials should suspend the guards and others allegedly involved during the investigation. If the ill-treatment depicted occurred, Tripoli’s general prosecutor should promptly begin steps to credibly prosecute those responsible. Al-Saadi Gaddafi has been in pretrial detention since authorities in Niger extradited him to Libya on March 6, 2014.

“The graphic video that seems to show prisoners being beaten raises serious concerns about the methods used to interrogate al-Saadi Gaddafi and other detainees at al-Hadba prison,” said Joe Stork, deputy Middle East director.” The Tripoli authorities need to urgently establish exactly what did occur, put in place measures to protect all detainees from abuse, and hold anyone responsible for that kind of treatment to account.”

In the undated video, several men, some in uniform and others in civilian clothes, are seen interrogating al-Saadi Gaddafi, who is partially blindfolded but clearly identifiable. At one point, Gaddafi is made to listen to the screams of at least two other men apparently being beaten outside the room and then is made to watch them being beaten. Human Rights Watch could not identify with certainty either of the men, although they seem to be prisoners at al-Hadba.

Toward the end of the footage, an interrogator asks Gaddafi if he’d rather be beaten on his feet or on his buttocks. Gaddafi responds, “What kind of a question is this? My feet.” The interrogators slap Gaddafi several times and beat the soles of his feet, elevated as he lies on his back and tied together on a makeshift metallic structure, with a plastic pipe, causing him to scream in agony.

Guards are seen and heard insulting the prisoners and using profanity. At some point during the video, Gaddafi pleads for “rest” and promises to cooperate. No lawyer or legal representative is visible, and it is unclear whether Gaddafi has had a lawyer to represent him during his detention.

Human Rights Watch tried to call the director of al-Hadba prison to seek clarification but was unable to reach him. Nor has Human Rights Watch been able to verify the sequencing of all elements in the video.

In April 2014, Libya’s official television station aired a series of videos that showed al-Saadi Gaddafi apparently confessing to crimes, from what appeared to be his jail in Tripoli. The videos showed Gaddafi, in a blue prison suit, apologizing to Libya’s people and the authorities for any “destabilization” he may have caused, asking for “forgiveness,” confessing to having worked against the country’s political system, and detailing his interactions with prominent figures in Libya prior to his extradition from Niger.

On July 28, 2015, a criminal court convened at al-Hadba convicted 32 former officials of serious crimes during the uprising that toppled Muammar Gaddafi in 2011. The court sentenced nine of them to death, including another son of Muammar Gaddafi, Saif al-Islam Gaddafi, along with Abduallah al-Sanussi, Baghdadi al-Mahmoudi, and Abuzeid Dorda. The court sentenced another 23 former officials to prison terms ranging from five years to life, acquitted four defendants, and dropped charges against one and referred him to a medical institution.

The trial was plagued by persistent, credible allegations of fair trial breaches that warrant independent and impartial judicial review Tripoli’s Court of Assize, including lack of meaningful access to a lawyer and allegations of ill treatment, Human Rights Watch said.

Al-Hadba is under the control of the forces of the former deputy defense minister, whose forces are allied with the Libya Dawn militia coalition. That coalition backs the self-declared authority that controls Tripoli and large parts of Western Libya, and opposes the internationally recognized Libyan government based in the eastern cities of al-Bayda and Tobruk that controls much of eastern Libya.

Libya’s conflict has brought the country’s institutions, including the judiciary and criminal justice system, to near-collapse, with many courts, prosecutors’ offices, and criminal investigation divisions suspending their activities because of worsening security conditions and attacks targeting judges, lawyers, and prosecutors. The ability of the Supreme Court, which sits in Tripoli, to afford impartial remedy is also threatened by current divisions and deteriorating security conditions.

The International Criminal Court has a mandate over war crimes, crimes against humanity, and genocide committed in Libya since February 15, 2011. Human Rights Watch has urged the ICC prosecutor, Fatou Bensouda, to investigate serious ongoing violations in Libya beyond the scope of her current investigation, which is limited to cases from 2011 involving officials of the former Gaddafi government.

Libya is a party to international and regional treaties that impose legal obligations regarding the treatment of detainees. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment obligates Libya to investigate and prosecute all those responsible for torture in its territory. The International Covenant on Civil and Political Rights prohibits anyone from being compelled to testify against themselves or to confess guilt. The Convention Against Torture obligates countries to ensure that any statement “made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”

“No exceptional circumstances justify torture or other ill-treatment,” Stork said. “If the contents of the video footage are verified, the Tripoli authorities should quickly identify those responsible and hold them to account.

Libya: End rampant abductions by armed groups
Amnesty International
August 5, 2015

Rampant abductions by armed groups have become a part of daily life in Libya, said Amnesty International as it launched a campaign digest, ‘Vanished off the face of the earth’: Abducted civilians in Libya, calling for an end to an epidemic of kidnapping blighting the country.

More than 600 people have gone missing between February 2014 and April 2015 according to the Libyan Red Crescent Society (LRCS), and the fate and whereabouts of at least 378 remain unknown, though the real numbers are likely to be much higher.

“Civilians in Libya are living on a knife edge. Widespread lawlessness and chaos have been exacerbated by routine abductions, as armed groups tighten their stranglehold on the country,” said Said Boumedouha, Acting Director of Amnesty International’s Middle East and North Africa Programme.

“Hundreds of civilians have been abducted on a whim simply because of where they are from, or because they are believed to support a rival political group. In many cases, they are kept hostage to pressure an armed group into a prisoner exchange or to coerce the family to pay a ransom.

The collapse of central authority and the absence of law enforcement and a functioning justice system in Libya has created an atmosphere of pervasive impunity which has allowed perpetrators of such abductions to evade prosecution and accountability.”

Hostage-taking of civilians is prohibited under international humanitarian law and during a conflict amounts to a war crime.

Amnesty International is calling on the international community to increase its support to the International Criminal Court (ICC) to investigate war crimes and crimes against humanity in Libya. So far the ICC Prosecutor has failed to undertake any investigations into crimes under international law committed by armed groups since 2011.

Those abducted by armed groups are routinely tortured or otherwise ill-treated in detention. Many are beaten, threatened with death, held blindfolded for several days, verbally and physically assaulted and often tortured with electric shocks or forced into stress positions. Several have died after being tortured or were summarily killed – their bodies later dumped on the side of the road.

Armed groups must release all civilians, treat all detainees, including captured fighters, humanely, and disclose information about the fate and whereabouts of missing persons. Anyone in detention should also be allowed to have regular contact with their families.

Those abducted include activists, public officials and other civilians seized by unknown assailants based on their political affiliations or in relation to their work.

Among them are 71-year-old former General National Congress member, Suleiman Zobi, and Abdel Moez Banoun, a political rights activist and blogger, who was kidnapped from a parked car near his home after speaking out against the presence of militias in Tripoli and organizing protests on this theme. Abdel Moez Banoun has been missing for more than 300 days. His brother said he had “vanished off the face of the earth”. Nasser al-Jaroushi, a prosecutor, was abducted after investigating the murder of human rights activist Salwa Bugaighis as well as looking into criminal drug gangs.

Humanitarian aid workers Mohamed al-Tahrir Aziz, Mohamed al-Munsaf al-Shalali and Waleed Ramadan Shalhoub were abducted on 5 June as they were on their way to distribute supplies to towns affected by fighting in south-west Libya.

Others who face abductions include migrant workers, foreign consular staff, and members of the Tawargha community who were displaced from their hometown in 2011.

Amnesty International’s campaigning effort, launched today, calls on armed groups to break the pattern of abductions and take a public stand by condemning abductions and torture.

The ongoing UN-sponsored political dialogue which aims to end the violence and form a Government of National Accord also plans to address abductions and illegal detention as part of a set of confidence-building measures. Participants to the dialogue, including local municipal leaders, must now exercise their influence with commanders of armed groups and intervene for the release of all abducted civilians.

Cote d’Ivoire (Ivory Coast)

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

Search for Justice Lags Post-War Boom in Ivory Coast
Saudi Gazette
By Joe Bavier
July 25, 2015

Four years after the civil war ended in Ivory Coast the economy is booming, but for men like Yaboua Assie, who lost two young daughters in one of the conflict’s most notorious massacres, the justice they seek remains as elusive as ever.

The killings took place in a grassy lot behind the government offices in the small town of Blolequin, an event Assie relives almost nightly in his dreams.

“When I close my eyes, I’m here in this courtyard,” he says, gazing around the walled compound, which was meant to be a refuge for those fleeing the 2011 war.

He stands at the edge of a rectangular depression that until recently was a mass grave containing the remains of 45 massacred civilians.

Two were his daughters: one 12, the other six months old. The bodies were exhumed by an investigative unit charged with prosecuting rights abuses during the conflict, in which campaigners say 3,000 people were killed.

The war started when then-president Laurent Gbagbo refused to quit despite losing an election to Alassane Ouattara in late 2010.

Four years later, with Ouattara in power, Ivory Coast is forging ahead — its economy forecast to grow 9 percent this year — but the quest for justice has lagged behind, hampered by lack of government support, rights groups say.

Gbagbo was extradited to the International Criminal Court in The Hague charged with crimes against humanity. His top political and military supporters were jailed.

Dozens, including his wife Simone who is also wanted by the ICC, were convicted in Ivory Coast this year.

By contrast, Ouattara’s military backers have received top posts in the army, despite allegations they too were responsible for civilian massacres.

With elections in October, Ouattara is keen to face down accusations of ‘victor’s justice’ from sections of Gbagbo’s Ivorian Popular Front party and opposition groups.

The president has pledged no one will be above the law. Last week, rights groups revealed that around 20 former rebels serving in the army had finally been indicted for alleged crimes committed during the crisis.

But the families of many victims have little faith that those who did the killing will pay for their crimes. When pro-Gbagbo mercenaries attacked his neighbors that March day in 2011, Assie saved himself and his 5-year-old daughter by playing dead as the bodies piled up on top of him.

“It’s war. They say to let it go. And we let it go,” he says. “When something is ruined, it’s ruined.”

A POINTLESS SPECTACLE?

In Abidjan, commercial capital of the world’s largest cocoa exporter, the completion of a long-awaited third bridge across the lagoon last year marked a symbolic end to a decade of stagnation following an earlier 2003-2004 civil conflict.

The return of the headquarters of the African Development Bank, which had moved to Tunis in the wake of that conflict, is seen as a sign of a return to stability.

An opinion poll last month by the Washington-based International Republican Institute showed public support for Ouattara.

Two-thirds of respondents said the country was heading in the right direction, and more than three-quarters approved of the job being done by the president.

Yet the same polls underlined one of the main failures of his first term: slow progress towards healing Ivory Coast’s deeply divided society.

The National Truth and Reconciliation Commission set up in the wake of the conflict recorded the lowest approval rating of the 14 institutions included in the poll at just 37 percent.

And just 18 percent of the country’s citizens believe justice had been served to all Ivorians following the post-election crisis.

“The slow judicial process and dubious impartiality cast a shadow on reconciliation and mid- and long-term stability prospects,” said Gilles Yabi, an analyst and founder of the West Africa-focused think tank Wathi.

Skepticism has bred resistance to the exhumations in some quarters. Justice Minister Mamadou Gnenema Coulibaly, who views them as critical to building criminal cases, questions the motives of those opposed to the process.

“Some think we are looking to incriminate Gbagbo. If they are pro-Gbagbo, they’ll act in bad faith,” he told Reuters.

“Others think we are looking for proof of their own involvement in the crimes and they try to block things.”

The government’s handling of previous investigations has contributed to the reticence. Julien Kpahi last saw his brother loaded into an army truck early one morning in 2012 after an attack on a camp for war-displaced civilians outside the town of Duekoue.Witness accounts implicated government soldiers and pro-Ouattara traditional Dozo hunters in the raid, which took place a year after Gbagbo fell. The government has never acknowledged any role in the violence.

Months later, a survivor led Kpahi to a well where he said his brother’s body had been thrown. Under pressure from human rights groups, authorities opened an investigation, removed six bodies from the well and brought them to Abidjan for autopsy

Kpahi has heard nothing since. Three years later, his brother’s remains have yet to be returned. “I have no hope it will lead to anything,” said Kpahi, who was recently prevented from visiting the well by UN peacekeepers. “For me, it’s pointless … It’s a spectacle.”

FIRST STEP

For Human Rights Watch researcher Jim Wormington, this month’s indictments of pro-Ouattara commanders were a promising sign but only a first step.

Among those formally accused are Lt. Col. Cherif Ousmane, the deputy head of Ouattara’s presidential guard, and Lt. Col. Losseni Fofana, another senior commander.

“To prove its commitment to impartial justice, the government should provide the judiciary with the support it needs to finish the investigations and bring the cases to trial,” he said.

In Duekoue’s Carrefour neighborhood, there are plenty who doubt this will happen. On March 28, 2011, hundreds of people were killed in an area predominantly inhabited by Gueres, an ethnic group seen as among Gbagbo’s staunchest supporters.

Here, no amount of economic progress will convince the war’s victims to turn the page. And residents like Georges Doue, 51, who lost seven members of his family in the massacre, have little faith the government will investigate the killings. “There’s no trust,” he said.

ICC Must Investigate Ivorian President’s Camp for Wartime Abuses: Human Rights Watch
Yahoo News
August 4, 2015

The International Criminal Court must broaden its investigation into the violence that ripped Ivory Coast apart in 2010 and 2011 to include violations committed by loyalists of President Alassane Ouattara, Human Rights Watch said Tuesday.

Since 2011, the Hague-based court’s chief prosecutor Fatou Bensouda has been probing a conflict that erupted after former president Laurent Gbagbo refused to concede defeat to Ouattara in a vote the year before.

However only Gbagbo and figures loyal to him have been charged so far by the ICC for crimes committed in post-election violence that left at least 3,000 people dead.

Gbagbo, who is in custody in The Hague, is the first former head of state to be prosecuted by the world’s only permanent war crimes tribunal.

“It’s absolutely urgent to get started” with a probe into violence committed by Ouattara loyalists during the war, said Elizabeth M. Evenson, senior counsel of HRW’s international justice programme.

“Additional ICC investigations are necessary, but the focus so far on pro-Ggbabo forces has deeply polarised opinion… about the ICC” within Ivory Coast, Evenson said.

The New York-based rights group warned that a failure to expand the scope of the investigations would leave many in Ivory Coast feeling unjustly sidelined.

“Many victims feel that the court has ignored their suffering,” Evenson said.

Gambian lawyer Bensouda has previously pledged her office would investigate abuses by both sides, but has been held back by limited resources, HRW said.

Evenson’s remarks came as HRW released a report titled “Making Justice Count”, which urged the ICC to do more to involve communities affected by the violence in Ivory Coast in its work.

“ICC officials need to carry out their mandates in a manner designed to ensure that the ICC’s delivery of justice will be accessible, meaningful, and perceived as legitimate — that is, that it can have impact — in countries where it conducts investigations,” the rights group said.

The report criticised the ICC’s failure to deploy an outreach officer, tasked with communicating with the broader communities with a stake in the proceedings, until autumn 2014.

It also said the court has failed to contact Ivorian refugee communities outside the country, which are perceived as allied with Gbagbo.

“During the election crisis, many of them were likely victims or witnesses of crimes carried out by pro-Ouattara forces and militias,” the report said.

“Some members of these communities… perceived the absence of cases against anyone associated with Ouattara during the war as a bias of the court,” it added.

Gbagbo, who was president from 2000 to 2011, has been held in The Hague since his late 2011 transfer. He is awaiting trial for crimes against humanity.

Formed in 2002, the ICC has opened nine cases in eight countries, all in Africa, with accusations it can only deliver victor’s justice.

AFRICA

International Criminal Tribunal for Rwanda (ICTR)

Chad

Chronicler of Crimes by Hisssѐne Habré Confident that Justice Finally at Hand
The Guardian
By Celeste Hicks
August 4, 2015

Souleymane Guengueng sits down with a cold bottle of water and looks out over the Atlantic Ocean. He has been hounded by journalists and film crews, and he’s tired.

He had been expecting to stay in the Senegalese capital, Dakar, for several months, but since the trial of the former Chadian leader Hissène Habré was adjourned until 7 September, the campaigner, who spent a decade gathering testimony from victims and their families for the landmark case, has been wondering what to do.

But he’s in good spirits. “Even if the delay is for another two or three months, that’s not more than the 25 years we’ve already been waiting for justice,” he says. “It’s nothing for us.”

Guengueng seems unruffled by the fact that Habré greeted the announcement of the adjournment by punching the air and giving the V-for-Victory salute to a group of cheering supporters.

“We’ve already succeeded. He’s here in court,” Guengueng says. “During his rule, he was like a god. Everyone was scared of him. No one could believe that this man who used to be like a god could so easily be judged.”

Twenty-five years ago, after spending three years in one of Habré’s secret prisons, Guengueng began a lonely mission to document testimonies from other alleged victims in the hope that one day justice would be served.

Today, Habré is accused of presiding over a network of security agents from the feared Direction de la Documentation et de la Sécurité (DDS), who carried out a campaign of torture, killings and arbitrary detention during his rule from 1982-90. A Chadian truth commission in the early 1990s estimated there could have been up to 40,000 victims.

On 20 July, Habré, now 72, entered the Palais de Justice in Dakar to stand trial on charges of crimes against humanity, war crimes, and torture. Dressed in white robes and a turban, he was accompanied by security forces. He raised his fist and cried “God is greatest” before being ushered out.

During his rule he was like a god. Everyone was scared of him. No one could believe this man could so easily be judged

Souleymane Guengueng

The next day came the adjournment to allow court-appointed lawyers time to prepare Habré’s defence. He had refused legal representation and said he did not recognise the jurisdiction of the Extraordinary African Chambers (EAC), a special international criminal tribunal set up in Senegal by the African Union.

For Guengueng, this milestone in African justice came at the end of a long journey that had seen several failed attempts at prosecution: first in Senegal, where Habré fled in exile after being deposed in a coup; then in Belgium, which has universal jurisdiction; and then under the Economic Community of West African States, or Ecowas.

Finally the election of Macky Sall as Senegal’s president in 2012 paved the way for the African Union to set up the EAC, which was to be hosted within the Senegalese court system.

The process has been an emotional one for Guengueng, who sat quietly at the front of the courtroom last week, occasionally wiping away a tear as lawyers for the victims made their opening speeches.

“We will see this trial to the end,” he says. “God has given me strength, and the love of my family, and I still have the courage to come here and keep going until the end.”

Security guards surround the former Chadian dictator Hissène Habré on his first appearance at the special international court in Senegal’s capital Dakar. Facebook Twitter Pinterest

Security guards surround the former Chadian dictator Hissène Habré on his first appearance at the special international court in Senegal’s capital, Dakar. Photograph: Ibrahima Ndiaye/AP

In Chad, the trial is starting to attract the attention of the public, who have generally voiced scepticism about the many twists and turns in previous attempts to bring Habré to justice. For years, most would either scoff cynically or express indifference when asked for their views on whether they thought Habré would ever face trial.

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But something changed in 2013, with the news that Habré had been arrested after 23 years living peacefully in the Ouakam neighbourhood of Dakar. The EAC was established and in March the unthinkable happened when Chadian authorities took the remarkable step of trying and convicting 20 Habré-era security agents, including the former head of the DDS, Salah Younous, and one of the most notorious torturers, Mahamat Djibrine, known as “El Djonto”.

Many of these agents had been living freely in Chad since the ousting of their leader and some had even occupied government posts. To general amazement, Younous and Djibrine were jailed for life, although these convictions have complicated the process at the EAC, which sought their extradition to Senegal to stand in the dock alongside Habré.

The trial also seems to have revived popular debate: for example, when the EAC was established, there were powerful voices advocating for the trial to be covered by Chadian local media. At least 40 Chadian journalists travelled to Senegal to attend the opening of the trial with the help of a grant from the Open Society Initiative for West Africa.

“The reports that I filed from Dakar received very positive feedback at home,” said Djimadoum Blaise, from the Chadian Press Agency. “People are really getting interested now. Of course, they’re disappointed with the delay, but they have complete confidence that the trial is going to start again in September.”

The EAC has been hailed as a unique breakthrough in African justice, the first time the courts of one African country have tried the former leader of another African country. Although it is still early days, some have suggested that, if successful, the model could act as an alternative to prosecutions by the International Criminal Court, which has become discredited in the eyes of many Africans.

For Souleymane Guengueng, the message is simple. “Ordinary people like us have shown the dictator that if you kill me, if you rape me, if you commit crimes against me, wherever you flee in the world we will pursue you.

“I think that has really opened the minds of people in Chad – that the president is not an untouchable god, he is equal to other Chadians.”

Chad says Security Forces kill Seven Boko Haram militants in clash
Reuters
By Matthew Mpoke Bigg
August 5, 2015

N’DJAMENA, Aug 5 (Reuters) – Chadian forces killed seven Boko Haram militants in a clash on Wednesday, a security source said, as the country tries to secure islands on Lake Chad used by the insurgents as hideouts and bases to launch attacks.

Chad said last week it killed 117 Boko Haram fighters as part of a two-week offensive on the lake that borders Nigeria, Niger and Cameroon.

“Boko Haram fighters in boats opened fire on our forces on the island of Tchoukou Dallah. Seven of their fighters were killed and there were others wounded,” said a security source who declined to be named. There was no independent confirmation.

Thousands of soldiers have been deployed to tackle the militants whose six-year-old insurgency has killed hundreds in recent months.

Boko Haram has stepped up attacks in countries around the lake in recent months in response to a regional offensive. It has also adopted the name Islamic State’s West Africa Province (ISWAP) after pledging allegiance to the militant group that controls parts of Syria and Iraq.

EUROPE

The Court of Bosnia and Herzegovina, War Crimes Chamber

Official Website [English translation]

Indictment Confirmed in the Case of Nikola Zovko et al.
Court of Bosnia and Herzegovina
July 29, 2015

On July 16, 2015 the Court of Bosnia and Herzegovina confirmed the Indictment charging the accused with the criminal offenses as follows: Nikola Zovko – War Crimes Against Civilians under Article 173(1), Subparagraphs c) and e), as read with Article 180(2) of the Criminal Code of BiH; Petar Krndelj – War Crimes Against Civilians under Article 173(1), Subparagraphs c) and e), as read with Article 180, Paragraphs 1 and 2, of the Criminal Code of BiH; Krešo Rajič – War Crimes Against Civilians under Article 173(1)c) as read with Article 180(2) of the Criminal Code of BiH; Ivica Čutura – War Crimes Against Civilians under Article 173(1)e), as read with Article 180(1) of the Criminal Code of BiH.

The Indictment alleges that the accused Nikola Zovko, as Commander of the Čapljina Police Station, Police Administration Mostar, Internal Affairs Department Mostar; Petar Krndelj as Assistant Commander of the Police Station for Uniformed Police at the Čapljina Police Station, Police Administration Mostar, Internal Affairs Department Mostar; Krešo Rajič, as Military Police Platoon Commander; and Ivica Čutura, as an operative officer for patrol activities – sector leader at the Čapljina Police Station, Police Administration Mostar, Internal Affairs Department Mostar; during the war in Bosnia and Herzegovina and the armed conflict between the Army of Bosnia and Herzegovina and the Croat Defense Council, between July 19, 1993 or at about that date, and July 28, 1993 or at about that date, in the territory of the Čapljina municipality, in violation of the rules of international humanitarian law, committed the killing, inhumane treatment, torture (deliberate infliction of severe bodily or mental pain or suffering), infliction of great suffering or injuries to bodily integrity or health and unlawful detention, of Bosniak civilians.

 

International Criminal Tribunal for the Former Yugoslavia (ICTY)

Official Website of the ICTY

Russia May Offer Medical Treatment to General Ratko Mladic
inSerbia
July 28, 2015

Russian doctors may offer treatment to ex-Bosnian-Serb General Ratko Mladic, representatives for the Russian public committee for the defense of Mladic said in a statement Tuesday.

Mladic, who was the Chief of Staff of the Army of Republica Srpska in the Bosnian War of 1992-1995, is currently at the detention center for the International Criminal Tribunal for the former Yugoslavia (ICTY).

According to the Committee head, Russian lawmaker Pavel Dorokhin, Russian doctors from Moscow Bakoulev Scientific Center for Cardiovascular Surgery on July 21 examined Mladic in the Hague, upon the initiative of the Committee and under authorization of the Russian president.

“Currently, the Russian doctors are working on the medical statement which will allow conclusions on the state of health of General Ratko Mladic. In case it is needed, Russian side is ready to offer Mladic treatment in Russia with the guarantee by the Russian government,” Dorokhin said.

In the last years, Mladic had several strokes and a heart attack. His defense, unhappy with the actions by ICTY doctors, had been pressing for Mladic to be examined by the Bakoulev Center experts for two years.

Mladic’s trial opened on May 16, 2012. He has been charged with genocide, war crimes and crimes against humanity, especially for his role in the Srebrenica massacre of 8,000 Muslims in 1995.

‘Operation Storm’ War Crimes Site Launched in Croatia
BIRN
By Sven Milekic
July 31, 2015

Croatian NGOs launched an interactive site showing the findings of the UN war crimes court in The Hague about the Croatian military’s 1995 ‘Operation Storm’ ahead of its 20th anniversary next week.

Three NGOs, the Serbian National Council, SENSE – Centre for Transitional Justice and Documenta, launched the new interactive site called ‘Storm in The Hague’ on Friday in Zagreb in a bid to publicise what is known about the operation ahead of its anniversary.

Operation Storm in August 1995 saw Croatia regain control over 18 per cent of its territory, crushing the secessionist Serb-led Republic of Serbian Krajina statelet.

It also resulted in some 200,000 Serb refugees fleeing Croatia, over 600 mostly elderly civilians being killed, and around 20,000 Serb properties being burned.

The site presents the findings of the International Tribunal for the Former Yugoslavia, ICTY, in the case against Croatian generals Ante Gotovina, Mladen Markac and Ivan Cermak – all three of whom were ultimately acquitted.

Milorad Pupovac from the Serbian National Council said that the site offered information that had been denied to the Croatian public.

“During the trial at the ICTY, almost no one in Croatian society felt the need to point out the facts that have come to light before this court,” Pupovac said.

‘Storm in The Hague’ presents the key arguments from both the defence and prosecution in the case, focusing on five fundamental issues on which they disagreed: the goal of the operation, the purpose of the Croatian military’s shelling, the murders that were committed, the destruction and plunder of property, and the prevention of Serb refugee return.

It also examines the verdict of International Court of Justice in The Hague, which discussed the crimes committed during Operation Storm during mutual genocide suits brought by Croatia and Serbia, both of which were rejected in February this year.

At the launch, Vesna Terselic from Documenta also pointed out that out of around 250,000 Serb refugees from Croatia during the 1995, only 133,075 have returned, while 32,893 are still leaving as refugees, mostly in Serbia and Bosnia and Herzegovina.

Hadzic’s Health “Rapidly Deteriorating”
Institute for War & Peace Reporting
By Daniella Peled
August 2, 2015

Tumour which led to his provisional release is affecting his cognitive skills.

Former Croatian Serb leader Goran Hadzic’s terminal brain cancer means that his ability to participate in trial proceedings is expected to rapidly deteriorate, a medical expert told the Hague tribunal this week.

Hadzic, who served as president of the breakaway Serb state in Croatia, the Republic of Serb Krajina, is charged with 14 counts of war crimes and crimes against humanity committed there in the early 1990s. The indictment includes charges of persecution, extermination, murder, imprisonment, torture, inhumane acts, cruel treatment, deportation, wanton destruction and plunder.

His trial has been suspended since October 2014 when he was diagnosed with a tumour and allowed to return to Belgrade. The chamber has since ordered a number of expert medical reports to establish whether his case should continue.

Forensic psychologist and neuropyschologist Daniel Martell told judges last week that the tumour had rapidly metastasised to multiple locations within Hadzic’s brain, affecting cognitive skills.

Martell told the court he had spent two days examining the defendant and carrying out numerous tests, including presenting him with more than 500 written questions. The expert said he included tests to identify any attempt at “malingering” or overstating the symptoms.

“Mr Hadzic in every case passed these tests, indicating he was giving good effort and not exaggerating his problems, and so I believe my findings are valuable and reliable indications of his functioning, and not the product of manipulations,” Martell said.

The psychologist found that Hadzic’s IQ had deteriorated and was currently 95, an estimated fall of some 20 points. The defendant also had short-term memory problems.

“He will not remember something he told you that morning or he will not remember something you just watched on television,” the expert said, adding that this amounted to a noticeable “level of impairment”.

As for the prognosis, Martell emphasised that Hadzic’s tumour was “rapidly progressive”.

“This means as it sounds – it gets worse quickly,” he continued. It’s the most aggressive brain cancer that one can have… it can be expected to continue to grow, and his capacity to participate [in legal proceedings] will continue to deteriorate. He will get worse.

“The nature in which he gets worse depends on where the tumour goes,” Martell explained. “At this point his frontal lobes are fairly well preserved, his language centres are fairly well preserved, but if the tumour begins to invade the language centres or the executive control centres, a further deterioration in those behaviours [can be expected] on top of the ones that are already impaired involving attention, concentration and memory.”

 

Domestic Prosecutions In The Former Yugoslavia

Kosovo Govt Prepares New War Crimes Court Vote
Balkan Insight
By Una Hajdari
July 30, 2015

The Kosovo government announced on Thursday that it is ready to call another vote on the controversial special court after it failed to gain approval in parliament last month because of opposition from many MPs.

A date for the parliamentary session has not been set, but the government said it would meet on Friday and reinitiate the process, which requires parliament to approve constitutional amendments to allow the court to be established.

The move signals that there will be the necessary majority to pass the amendments, after Kosovo came under mounting pressure from the US and the EU in the wake of last month’s failed vote.

“The resubmitting of these constitutional amendments to parliament and their ratification is of special importance to the Republic of Kosovo in the process of fulfilling the obligations it has taken on towards its international partners,” the government said in a statement.

So called ‘specialised chambers’ will be created at each level of the Kosovo judiciary to deal with allegations that Kosovo Liberation Army fighters were involved in the killings, abductions, illegal detentions and persecution of Serbs, Roma and Kosovo Albanians believed to be collaborators with the Serbian regime.

But veterans’ associations and opposition parties have claimed that the new court is an insult to the KLA’s armed struggle to escape Serbian control during the 1998-99 conflict.

Foreign Minister Hashim Thaci also failed to persuade a number of MPs from his Democratic Party of Kosovo (PDK) to vote for the court.

Thaci has been the main proponent of the court, even though the allegations, which first surfaced in a report by Council of Europe rapporteur Dick Marty in 2011, mention him as well.

The PDK is considered to be the successor to the KLA, and Thaci served as political head of the guerrilla force at the height of the conflict.

Opposition parties, including Vetevendosje, the Alliance for the Future of Kosovo and the Initiative for Kosovo, have all been strongly critical of the court and openly celebrated when it was not ratified by parliament.

MPs from the Democratic League of Kosovo (LDK) of Prime Minister Isa Mustafa, who opposed the KLA and its actions in the 1990s, voted strongly in favour of the court.

US diplomats have warned that a failure to vote for the court could lead to it being set up by the UN Security Council – as has been proposed by Serbia’s ally Russia.

‘Operation Storm’ War Crimes Site Launched In Croatia
Balkan Insight
By Sven Milekic
July 31, 2015

Three NGOs, the Serbian National Council, SENSE – Centre for Transitional Justice and Documenta, launched the new interactive site called ‘Storm in The Hague’ on Friday in Zagreb in a bid to publicise what is known about the operation ahead of its anniversary.

Operation Storm in August 1995 saw Croatia regain control over 18 per cent of its territory, crushing the secessionist Serb-led Republic of Serbian Krajina statelet.

It also resulted in some 200,000 Serb refugees fleeing Croatia, over 600 mostly elderly civilians being killed, and around 20,000 Serb properties being burned.

The site presents the findings of the International Tribunal for the Former Yugoslavia, ICTY, in the case against Croatian generals Ante Gotovina, Mladen Markac and Ivan Cermak – all three of whom were ultimately acquitted.

Milorad Pupovac from the Serbian National Council said that the site offered information that had been denied to the Croatian public.

“During the trial at the ICTY, almost no one in Croatian society felt the need to point out the facts that have come to light before this court,” Pupovac said.

‘Storm in The Hague’ presents the key arguments from both the defence and prosecution in the case, focusing on five fundamental issues on which they disagreed: the goal of the operation, the purpose of the Croatian military’s shelling, the murders that were committed, the destruction and plunder of property, and the prevention of Serb refugee return.

It also examines the verdict of International Court of Justice in The Hague, which discussed the crimes committed during Operation Storm during mutual genocide suits brought by Croatia and Serbia, both of which were rejected in February this year.

At the launch, Vesna Terselic from Documenta also pointed out that out of around 250,000 Serb refugees from Croatia during the 1995, only 133,075 have returned, while 32,893 are still leaving as refugees, mostly in Serbia and Bosnia and Herzegovina.

Bringing The Truth To Light – Kosovo Parliament Votes To Set Up Special Court
Deutsche Welle
By Pandeli Pani
August 4, 2015

War crimes committed by Albanians? This is precisely what is stirring emotions in Kosovo and people there think the accusations are unfair. It is generally perceived that the Kosovo Liberation Army, KLA, (1998-99) gained the country’s long-desired independence.

This event is practically sacred to the people in Kosovo. It is also one of the reasons why it took around five years for the parliament in Pristina to approve the constitutional amendment and ultimately set the stage for the special court.

Since 2011, an EU special investigation team has gathered substantial evidence against former commanders of the Kosovo Liberation Army during the war and in the period immediately thereafter. Now, law authorities can press charges against the suspects. The evidence will be examined by the new special tribunal. Former commanders of the Kosovo Liberation Army as well as present-day politicians and representatives of the people must now fear the long arm of the law.

Many parliamentarians resisted for a long time: In the first vote at the end of June, the two-thirds majority was not attained in the parliamentary vote. And even today, the tribunal is euphemistically referred to as the “professional chamber” or the “office of the special prosecutor.”

For years, most people in Kosovo believed that war crimes had only been committed by the others: the Serbs and their collaborators. There had never been talk of the KLA’s crimes.

Things only changed when the former Special Rapporteur of the Council of Europe, Dick Marty, made serious allegations against the KLA leadership in his report in December 2010. In the late 1990s, the Kosovo Liberation Army allegedly committed war crimes against the Serbian minority, the Roma and so-called Albanian collaborators during and after the Kosovo conflict, asserted the Swiss diplomat.

The list of crimes includes murders, abductions, expulsions, rape, narcotics trade and the destruction of churches. But what really made the headlines was Marty’s controversial accusation that KLA fighters harvested the organs of Serbian captives and sold the body parts on the black market. However, no evidence of such activities has been provided. Furthermore, Marty’s report accuses Hashim Thaci, currently Kosovo’s minister of foreign affairs and the first prime minister of the country from 2008 to 2014, of weighty offenses.

Kosovo, as a state, is not being charged with alleged crimes. Allegations have mostly been made against individuals. The EU foreign policy chief, Federica Mogherini, described the decision as “not easy, but necessary in order to bring the truth to light.”

Despite the officially proclaimed willingness of the representatives of Kosovo to do everything possible “to ensure a safe and appropriate environment for the work of the special tribunal,” as President Ahtifete Jahjaga promised, the war crimes tribunal will have two headquarters – one in Kosovo and one in The Hague.

Like the EU special investigation team, this court is run exclusively by international judges and carries out most of its work in The Hague. The reason for two tribunal headquarters has nothing to do with the fact that the International Criminal Tribunal for the former Yugoslavia is located in The Hague: Witness protection in Kosovo is severely inadequate.

“Everyone knows everyone or is related to each other or is a friend of a friend,” says journalist and publicist Milaim Zeka in an interview with DW. So it is possible to informally influence potential witnesses. But journalists who report on cases are also threatened and put under pressure.

Stefanovic: Investigation Of Crimes Against Serbs In Kosovo Priority
InSerbia
By Tanjug
August 4, 2015

Serbian Minister of Interior Affairs Nebojsa Stefanovic stated on Monday that the investigation of all crimes committed against Serbs in Kosovo-Metohija constitutes one of the priorities, together with the implementation of the Brussels agreement.

Reacting to the Monday debate in the Kosovo parliament concerning the constitutional amendments the adoption of which would make room for constitution of a special court in charge of prosecuting war crimes committed by the Kosovo Liberation Army in Kosovo-Metohija, Stefanovic said that investigation of all crimes committed against Serbs constitutes a priority.

When it comes to its southern province, Serbia will insist on full implementation of all the agreements reached in Brussels, he told reporters.

Stefanovic underscored that it is very important for Serbia to implement the Brussels agreement and render into practice the points agreed on concerning the community of Serb municipalities and other parts of the agreement that will make room for safety and survival of Serbs in Kosovo-Metohija.

Kosovo Approves New War Crimes Court
Jurist
By Emelina Perez
August 5, 2015

Kosovo’s Parliament [official website] approved the creation of a war crimes court on Monday which will investigate alleged war crimes committed by ethnic Albanians during the 1998-99 guerrilla war. Members of parliament also passed laws to create the office of the prosecution and to finance defense counsel for those accused. The Kosovo Liberation Army (KLA), a rebel group of mostly ethnic Albanians who fought for independence from Serbia, has for years been accused of past war crimes and intimidating witnesses. Many former members of the KLA are now high-ranking politicians. Although the court will be under Kosovo law, it will be located [Reuters report] in the Netherlands, funded by the European Union, and the judges and prosecutors will be made up of foreigners. Advocacy group Human Rights Watch (HRW) [official website] called the amendment a “step toward justice” [press release] but is urging for strong procedures to protect witnesses.

War crimes committed during the Kosovo War have been prosecuted in the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website], but relations between Serbia and Kosovo remain strained. Last month, 11 Kosovo Albanian men were sentenced [JURIST report] to prison for war crimes. In February 2014, Serbia’s war crimes court convicted [JURIST report] nine former paramilitaries for their involvement in the genocide of ethnic Albanians in Kosovo in 1999. Two former Serbian secret service officials were arrested [JURIST report] under suspicion that they planned the 1999 killing of an anti-government journalist. In 2013 Amnesty International [advocacy website] accused [JURIST report] the UN Mission in Kosovo of failing to adequately investigate war crimes committed during the conflict. Kosovo held its first local elections [JURIST report] in November 2013 since it seceded from Serbia in 2008. Serbia still does not recognize the secession.

 

MIDDLE EAST AND ASIA

Extraordinary Chambers in the Courts of Cambodia (ECCC)

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

Ex-Cadre Tells Tribunal of Suicides at Airport
The Cambodia Daily
By George Wright
JULY 30, 2015

A witness at the Khmer Rouge tribunal on Wednesday told of people committing suicide at the Kompong Chhnang airport construction site, including a woman who threw herself under a moving truck.

Kheun Vat, who joined the communist guerrillas in 1970 and is the last witness to give evidence in Case 002/02 about the airport site, said she heard stories about other workers who took their own lives after she was transferred there in 1977.

“I heard about a rock-transportation-vehicle driver who said that a youth worker actually ran into the truck and that he couldn’t brake on time and killed the person,” she said. “I was rather afraid to hear that.”

“There was another person…who jumped up off the vehicle and killed himself,” she said.

Ms. Vat, a low-ranking cadre whose husband was killed by the regime on suspicion of having ties to the Vietnamese, spoke of numerous disappearances at the worksite and admitted that she feared for her own life.

“There was a messenger, who was close to my husband from the same unit, who wrote a letter secretly to me…and that’s how I learned about his arrest,” she said.

“What he said in the letter was to advise me not to make any more inquiries about my husband because he was taken away.”

Asked by senior assistant prosecutor Travis Farr if people had been free to leave the airport site, Ms. Vat replied that workers had to stay “vigilant” at all times or face unknown consequences.

“If any worker was liberal and didn’t adhere to the instructions, that person would be removed. Upon hearing that, I was rather concerned and had to be very vigilant,” she said.

“It was my thought that if I was not vigilant enough, and if anyone knew about it or my superiors knew about it, they would report the matter to upper echelons [and] I would be in a risky situation.”

During the morning session, witness Mam Soeum, who was testifying in relation to the Trapeang Thma Dam worksite in Banteay Meanchey province, said there were so many forced marriages— often held in darkness—at the site that newlyweds sometimes struggled to identify their spouses after the ceremony.

“Some of them got confused with their spouses because there were so many men and women who were married at the time,” Mr. Soeum said. “After the ceremony was completed, some of them could not find their wives, and before they got married, most of them did not know one another at all.”

Witness recalls regime’s fall
The Phnom Penh Post
By Rebecca Moss
July 31, 2015

Khim Vat was 29 when the Khmer Rouge regime fell. She was loaded into a military truck at the Kampong Chhnang airport worksite that day, alongside pregnant women and children, and heard the sound of gunshots as the vehicle fled to the west.

During the second portion of her testimony before the Khmer Rouge tribunal yesterday, Vat, a former member of the communist militia, recalled the chaos of the Vietnamese invasion.

“Everyone tried to board a truck,” she said. “We thought we could not survive.”

Several women gave birth in the moving lorry.

“In my opinion at the time, capitalists were the rich and powerful . . . They oppressed us, and they did not let us have any freedom,” Vat said of her decision to supported the communist movement.

However, she described a similar enslavement under the Khmer Rouge leadership, including her forced marriage to a stranger disabled on the battlefield, and her demotion out of a military capacity and into the rice fields.

“I had no choice,” she said. “I would follow Angkar.”

With the conclusion of her testimony, the line of questioning in Case 002/02 turned again to the conditions surrounding the January 1 dam.

Om Chy, a slight, 63-year-old, testified about his role as a unit chief, supervising 500 workers as they built irrigation canals linked to the dam.

Chy said his unit worked 16-hour days clothed in a single set of tattered pajamas, without access to clean water or sufficient food.

Despite his senior status, he added, everyone had to abide by the regulations set forth by the Khmer Rouge or face being detained, re-educated or tortured.

“During the regime, every worker, including myself, did not dare refuse,” Chy said.

He remembered the public arrest of a teenage boy, the disappearance of neighbours who never returned and purges of his own senior leaders.

“We lost trust with each other and had to work on a daily basis to survive,” he said.

Close to his worksite was the Baray Choan Dek pagoda, a place he resolutely asserted was where “enemies” – suspected of being foreign spies or merely “inactive” workers – would be executed.

Chy was one of the few to enter the pagoda walls and return alive.

Before the regime fell, the security centre was transferred to another village and the unit chief was invited to the pagoda for a cadre meeting.

The space, he said yesterday, still held the evidence of its recent misdeeds.

“I actually saw blood stains on the wall in the dining hall . . . pieces of clothing strewn on the ground,” he recalled.

“The bad odour [from the corpses] was still lingering in the air.”

 

Iraq

Grotian Moment: The International War Crimes Trial Blog

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.”

 

Syria

ICJ Acknowledges Request for Inquiry Into Syria-bound MİT Trucks
Today’s Zaman
July 30, 2015

The International Court of Justice (ICJ) has acknowledged receipt of an email sent by a Turkish political party requesting an investigation into the case of arms-filled trucks bound for Syria and operated by the National Intelligence Organization (MİT) that came to national attention after they were intercepted on the orders of a prosecutor in southern Turkey last year.

The court has not yet decided to open an investigation, despite some news reports circulating among Turkish national media.

The People’s Liberation Party (HKP) lodged a petition with the ICJ seeking an inquiry into the trucks belonging to MİT on the grounds that any arms shipment to the warring factions in Syria represented a clear breach of international norms and amounted to a war crime.

“The Office of the Prosecutor confirms receipt of the communication. We will give consideration to this communication, as appropriate, in accordance with the provisions of the Rome Statute of the International Criminal Court,” the court said in an email sent to the HKP’s lawyer on Thursday, adding, “However, please note that this does not mean an investigation has been opened, nor that an investigation will be opened by the Office of the Prosecutor.”

The HKP filed a criminal complaint against President Recep Tayyip Erdoğan, Prime Minister Ahmet Davutoğlu, former Interior Minister Efkan Ala and MİT UndersecretaryHakan Fidan, the OdaTV news portal said in late May. Speaking to Turkish media recently, HKP leader Nurullah Ankut claimed that the attempt by MİT to deliver arms is not just a crime by the Erdoğan administration but amounts to a joint crime committed by the US, the UK and the EU.

While the party leader was optimistic about the prospect of an investigation against the Turkish government members, some experts have disagreed with this perspective.

Although Turkey might have violated international law by delivering weapons to warring factions in Syria, there is need for proof of an official order from Ankara that those weapons were to be used to target civilians, which constitutes a war crime. Given the unlikelihood of such an order emerging, the prospect of an inquiry being launched against the Turkish government seems dim.

Doğan Erkan, an HKP lawyer, told Turkish media that while the court may lack the jurisdiction to try the government, it could reach the verdict that it had committed a war crime.

In January 2014, gendarmes stopped Syria-bound trucks in the southern provinces of Adana and Hatay after prosecutors received tip-offs that the vehicles were illegally carrying arms to Syria. The weapons were allegedly intended for extremist groups in Syria, including the Islamic State in Iraq and the Levant (ISIL) and al-Qaeda affiliates.

The HKP reportedly maintained in the criminal complaint that the government had committed a war crime and had violated the Turkish Constitution, the Turkish Penal Code (TCK) and the Geneva Conventions by sending weapons to the Free Syrian Army (FSA).

“No matter what public post the suspects occupy, it is obvious that they must be tried in court for these war crimes,” it said in the complaint, which demanded that the suspects be prosecuted.

Barrel Bombs, Not ISIS, Are the Greatest Threat to Syrians
The New York Times
By Kenneth Roth
August 5, 2015

As the self-proclaimed Islamic State, or ISIS, commits horrendous videotaped executions, it might seem to pose the greatest threat to Syrian civilians. In fact, that ignoble distinction belongs to the barrel bombs being dropped by the military of Syria’s president, Bashar al-Assad. The Islamic State has distracted us from this deadly reality.

Barrel bombs are improvised weapons: oil drums or similar canisters filled with explosives and metal fragments. They are dropped without guidance from helicopters hovering just above antiaircraft range, typically hitting the ground with huge explosions and the widespread diffusion of deadly shrapnel. They pulverize neighborhoods, destroy entire buildings and leave broad strips of death and destruction.

The Syrian military has dropped barrel bombs, sometimes dozens in one day, on opposition-held neighborhoods in Aleppo, Idlib, Dara’a and other cities and towns. They have pulverized markets, schools, hospitals and countless residences. Syrians have described to me the sheer terror of waiting the 30 seconds or so for the barrel bomb to tumble to earth from a helicopter hovering overhead, not knowing until near the very end where its deadly point of impact will be.

From the start of the war, the Assad government has pursued a murderous policy toward Syrian citizens who happen to live in areas that have been seized by opposition armed groups. The apparent aim is to kill and terrorize civilians (and destroy civilian structures) so as to drive civilians from opposition-held areas and to send a warning of the misery that attends anyone whose neighborhood is taken by opposition groups. Mr. Assad is thus pursuing the “total war” strategy that the Geneva Conventions and the laws of war flatly prohibit and criminalize.

Beyond killing civilians, barrel bombs are playing a big part in forcing Syrians from their country. In most wars, civilians can find a modicum of safety by moving away from the front lines. But Mr. Assad’s indiscriminate use of barrel bombs deep in opposition-held territory means that for many there is no safe place to hide. That ugly reality has played a major part in persuading four million people to flee the country.

Yet the international community has made little effort to stop Mr. Assad’s barrel bombing of civilians. The two governments with the greatest potential to influence Mr. Assad — his principal backers, Russia and Iran — have refused to get him to stop. Western governments have been reluctant to exert strong public pressure on them because of other priorities — Ukraine, in the case of Russia, and the nuclear deal, in the case of Iran. The European Union is putting far more effort into stopping Syrian asylum seekers from reaching the Continent than addressing the root causes of their flight. The United States and Turkey recently announced a plan to make a 60-mile strip in northern Syria an “ISIS-free zone,” but the goal is to fight ISIS militants, not protect civilians.

In February 2014, the United Nations Security Council demanded an end to the “indiscriminate employment of weapons in populated areas, including shelling and aerial bombardment, such as the use of barrel bombs,” but it has not done much to stop it. Western governments are now proposing a new Security Council resolution that would have the United Nations monitor the use of barrel bombs and that hints at, though does not actually impose, sanctions should the barrel bombing continue.

If Russia blocks further Security Council action, Western nations should start ratcheting up public pressure on Damascus for using this indiscriminate form of warfare and on Moscow and Tehran for backing it.

Because of Western reticence, too few people understand the extraordinary slaughter that the Syrian military is committing with its barrel bombs. Mr. Assad’s chlorine gas attacks, terrifying as they are, kill a tiny fraction of the barrel-bomb toll, though they have recently attracted more attention than the barrel bombs.

Western nations should also continue to collect evidence of Syrian war crimes, and if Russia persists in blocking the International Criminal Court from having jurisdiction to pursue war-crimes charges, an alternative tribunal should be found.

One reason for soft-pedaling is a fear that ending the barrel-bomb attacks might undermine Mr. Assad’s ability to cling to power, and thus facilitate an Islamic State takeover. But barrel bombs are so imprecise that the Syrian military does not usually drop them near the front lines, for fear of hitting its own troops. They are useful mainly for pummeling civilian neighborhoods.

That is one reason residents of opposition-held parts of Aleppo told me that, unlike in almost any other war, some civilians have — astonishingly — moved closer to the front lines, preferring to brave the more predictable artillery and snipers than the barrel bombs’ random death from the sky. The failure to address the barrel bombs arguably helps extremist groups like the Nusra Front and the Islamic State, which recruit Syrian members by presenting themselves as the most powerful military force to counter Mr. Assad’s government’s atrocities.

President Obama has reportedly been reluctant to act too decisively in Syria for fear that he might then “own” the country and the chaotic mess it has become. But firmer pressure on Syria, Russia and Iran to stop the barrel bombs wouldn’t make the United States responsible for anything other than fewer civilians dead, injured and displaced.

Some say that, rather than targeting a particularly monstrous weapons system, the best way to end the barrel bombs is to make peace. That is a laudable goal, but few believe a negotiated solution to the Syrian crisis is anywhere near. In the meantime, virtually all the Syrians I have spoken with agree that stopping Mr. Assad’s barrel bombs is probably the single most urgent task to reduce their suffering now.

 

Islamic State of Iraq and the Levant

Australia Arrests Nurse Who Says He Worked With ISIS Under Duress
The New York Times
By Michelle Innis
July 25, 2015

A 39-year-old nurse from Melbourne who said he was forced to work with the Islamic State militant group in Syria was arrested upon returning to Australia, the authorities said Saturday.

The nurse, Adam Brookman, was arrested Friday night at Sydney’s international airport on a warrant related to what the authorities said was his involvement in the Syrian conflict, according to the Australian Federal Police. He surrendered to the authorities in Turkey on Tuesday, the police said in a statement. The statement did not identify Mr. Brookman by name, but his activities have been widely reported in the Australian news media.

The police did not say what charges Mr. Brookman might face. But antiterrorism laws passed last year make it illegal for Australians to be in the Syrian city of Raqqa, a control center for the Islamic State, without a legitimate reason. A conviction is punishable by prison sentences of up to 10 years. Providing material support to a militant group like the Islamic State, which is also known as ISIS or ISIL, is punishable by harsher sentences.

Mr. Brookman, a convert to Islam, told The Sydney Morning Herald that he went to Syria to do humanitarian work, but that he was forced to work with the Islamic State after he was wounded in an airstrike and taken to a hospital controlled by the group. He said he never took up arms and focused on medical tasks; eventually, he said, he was able to escape and, later, to cross the border into Turkey.

The Sydney Morning Herald, citing court documents, reported Saturday that Mr. Brookman was accused of working as a guard for the militant group. He was flown in police custody from Sydney to Melbourne, in the state of Victoria, where he was expected to appear in court on Monday, the newspaper said.

Prime Minister Tony Abbott said Thursday that 120 Australians were fighting on the side of extremists in Syria and Iraq, and that 160 other Australians actively supported extremist groups. He said that hundreds of people had been questioned about their travel plans and that the government had confiscated the passports of more than 100 Australians to stop them from joining the fighting.

“Australians have been consistently warned that by becoming involved in overseas conflict they are putting their own lives in mortal danger,” the federal police said in a separate statement. “If there is evidence an Australian has committed a criminal offense under Australia law while involved in the conflict in Syria and Iraq, they will be charged and put before the courts.”

The government is preparing legislation that would allow it to prevent known terrorists who are dual citizens from returning to Australia by stripping them of their Australian citizenship.

FBI: Islamic State Sympathizer Charged in Backpack Bomb Plot
The New York Times
By The Associated Press
July 28, 2015

A man described by the FBI as an Islamic State sympathizer who hoped to mount attacks on U.S. soil was charged Tuesday with plotting to detonate a nail-filled backpack bomb on a Florida beach.

A criminal complaint unsealed Tuesday charges 23-year-old Harlem Suarez of Key West with attempting to use a weapon of mass destruction in the U.S. If convicted, he could face a maximum punishment of life in prison.

Authorities say Suarez came to the FBI’s attention through his Facebook posts praising the Islamic State group and containing extremist rhetoric.

In April, Suarez allegedly posted, “Be a warrior, learn how to cut your enemies head and then burn down the body learn how to be the new future of the world Caliphate” — a reference the Islamic State goal of building a regional fundamentalist entity.

The FBI says he later added a request “from any brother. How to make a bomb send me a video or something, what do I need to make it.”

Suarez made his first court appearance Tuesday in Miami and was being held without bail with a detention hearing set for next week. His temporary attorney, Richard Della Fera, said in an email that Suarez “may be a troubled and confused young man but he is certainly not a terrorist.”

“He comes from a very good, hard-working family that arrived here from Cuba in 2004 because they yearned for freedom. They raised their son to love this country,” Della Fera said.

Attempts to reach friends and family members via email and telephone were not immediately successful.

The complaint says Suarez told an FBI informant he wanted to make a timer bomb, bury it on a Key West beach and detonate it remotely. Suarez was arrested Monday after taking possession of an inert explosive device provided by an FBI informant. Suarez had given the informant some bomb supplies, including two boxes of galvanized nails, the backpack and a cellphone to be used as a detonator, according to the complaint.

“I can go to the beach at the night time, put the thing in the sand, cover it up, so the next day I just call and the thing is gonna, is gonna make, a real hard noise from nowhere,” Suarez told an FBI source in a recorded call, according to the complaint.

Suarez was being monitored for months by U.S. authorities and never made an actual explosive, and there was no indication in the FBI complaint that he had contact with any Islamic State militants overseas. Still, Miami’s FBI special agent in charge, George Piro, said the alleged threats had to be taken seriously.

“There is no room for failure when it comes to investigating the potential use of a weapon of mass destruction,” Piro said.

Among other things, the FBI says Suarez also sought to make an Islamic State recruitment video using a script he wrote himself. It eventually was made under FBI surveillance at a motel in Homestead, according to the complaint, with Suarez dressed in a black tactical vest, black shirt, mask and yellow-and-black scarf.

“American soil is the past, we will destroy America and divide it in two, we will rais(e) our black flag on top of your white house and any president on duty (cut head),” Suarez says in a script for the video.

The FBI says Suarez also ordered an AK-47 assault rifle on the Internet and intended to have it delivered to a Key West pawn shop. Although he could legally purchase the weapon, the FBI says, Suarez incorrectly filled out paperwork and it was returned to the seller.

Several dozen people have been charged in the U.S. with attempting to fight alongside the Islamic State and other militants or with lending them material support.

‘I Am an American’ Says Man Who Tried to Join Islamic State
The New York Times
By The Associated Press
July 28, 2015

A Georgia man who wrote he was “ready for jihad” before buying a one-way ticket overseas to try joining the Islamic State group was sentenced to federal prison Tuesday after he sobbed to the judge, “I am an American.”

Leon Nathan Davis III of Augusta was sentenced to 15 years, the maximum punishment allowed. A pale, bearded man with a Southern accent, the 38-year-old Davis pleaded guilty in May to seeking to help a known terrorist organization.

He was arrested at the Atlanta airport last October trying to board a flight to Turkey. Davis later said his plan was to be smuggled into Syria so he could join the Islamic State group as a recruiter and an English teacher.

During his sentencing Tuesday, Davis told the judge he had been “brainwashed” by writings and online propaganda of radical Muslims not long after he converted to Islam while imprisoned for cocaine trafficking a decade ago.

“I allowed myself to stray away from the truth of my religion, which is peace, love and humility,” Davis said. “They brainwashed me into thinking that hatred and death were the way into heaven.”

Despite his apologies and acknowledgement of wrongdoing, prosecutors insisted Davis was far from harmless.

Assistant U.S. Attorney Carlton Bourne showed the judge a photograph Davis posted online of himself holding a shotgun and surrounded by other weapons. Bourne said Davis added the caption: “ready for jihad.”

About a year before buying his plane ticket, Bourne said, Davis posted online: “One of my greatest desires is to kill Zionists and bring down Israel and the United States of America.”

Despite being a convicted felon, Davis owned six rifles, four handguns and two shotguns, according to prosecutors who originally charged him with illegal gun possession. That charge was dropped as part of a plea deal.

Davis posted “stupid things” on social media, said his defense attorney, Michael Loebl. But with no military training and a bad back, Davis posed “a low-level threat, if any,” Loebl said.

Davis underwent a genuine religious conversion while in prison from 2005 to 2008, Loebl said, and became so dedicated that he taught himself to read and write Arabic. He said Davis’ interest in radical Islam peaked when he left prison and was able to access writings, videos and other materials online.

Davis and his attorney insisted he never meant harm, particularly to Americans. Davis was born in Augusta and had a father who served in the military. At the time of his arrest, he was selling dietary supplements. He told the judge that because of his actions, his wife, an Iraqi citizen, has been barred from returning to the U.S.

“I love my country and I am an American,” Davis said through loud sobs. “This is the best country in the world and it deserves better.”

Authorities have charged several dozen people in the last year with trying to fight alongside the Islamic State and other militants or with lending them material support.

U.S. District Court Judge J. Randal Hall said he chose the maximum punishment for Davis in hopes that it might deter others, though he also voiced concerns Davis might use prison to recruit more Islamic State supporters.

“In light of the clear evidence of their savagery and brutality, he chose to travel there and join them,” Hall said. “This is a serious offense against our nation. We need to impose a serious sentence.”

2017 Trial Set for 2 Men Accused in Plot to Kill Blogger
The New York Times
By The Associated Press
July 29, 2015

A 2017 trial date is scheduled for two men charged with conspiring to support the Islamic State group in a plot to kill a conservative blogger known for provoking Muslims.

Judge William Young set the date Wednesday for Nicholas Rovinski, of Warwick, Rhode Island, and David Wright, of Everett, Massachusetts. Defense attorneys sought the extra time to review thousands of documents and computer records.

The men have been held without bail since pleading not guilty last month to conspiring to provide material support to a terrorist organization.

Prosecutors allege they plotted with Usaamah Rahim to behead blogger Pamela Geller, who organized a Prophet Muhammad cartoon contest in Texas in May. The plot wasn’t carried out.

Rahim was killed by investigators who say he lunged at them with a knife when they approached him June 2 in Boston.

Man From Buffalo Area Is Charged With Trying to Aid ISIS
The New York Times
By Stephanie Clifford
July 30, 2015

As law enforcement increasingly focuses on stopping Americans from supporting the Islamic State, a man from the Buffalo area has been arrested and charged with trying to join the terrorist group.

The man, Arafat M. Nagi, 44, of Lackawanna, N.Y., becomes the latest in a string of arrests of American citizens and residents accused of trying to support the Islamic State, also known as ISIS or ISIL. Federal prosecutors in Brooklyn, Minneapolis and elsewhere have brought at least two dozen such cases this year.

The Federal Bureau of Investigation recently changed how it handles suspected Islamic State sympathizers, emphasizing speedy arrests over extended periods of monitoring, to quickly head off potential attacks in the United States. Officials say the group uses social media to encourage people to carry out small attacks.

Defense lawyers, however, say the Islamic State cases can be weak because many rely on cooperating witnesses or informers and because activity that may seem suspicious is not necessarily criminal.

“There is nothing inherently illegal about any of my client’s actions as alleged in the complaint, and we look forward to learning more about the government’s case at Friday’s bail hearing,” Mr. Nagi’s lawyer, Jeremy D. Schwartz, said in an email.

A cooperating witness previously convicted of terrorism offenses alerted the F.B.I. to Mr. Nagi in August 2014, prosecutors said. The witness said Mr. Nagi often talked of jihad and got into “verbal altercations over his jihadi beliefs.”

Officials looked at his travel records and found that he had gone to Istanbul in July 2014 and had traveled on to Yemen. He returned to the United States in September, after the witness had spoken to the F.B.I. Interviewed at the airport upon his return, Mr. Nagi told officers from Customs and Border Protection that he did not support terrorist groups.

However, investigators took Mr. Nagi’s iPad, iPhone and cellphone upon his return, and, after obtaining a warrant, searched them. They found a WhatsApp conversation in which Mr. Nagi, discussing an earlier trip to Turkey and Yemen in 2012, wrote in part that he wanted to “help the Syrian people.” He had returned home early, he said, because of a gallbladder issue.

Investigators found that before a 2012 trip, Mr. Nagi had bought a tactical vest, an army combat shirt, body armor, combat boots and a flag with the shahada, the Muslim declaration of faith. Heading into his 2014 trip, he kept buying militarylike items, such as a “Hamas-style” headband from eBay, a combat face mask and night-vision goggles.

A Twitter account traced to him also contained posts that seemed to show him swearing allegiance to the Islamic State leader, Abu Bakr al-Baghdadi, and celebrating Islamic State beheadings, investigators said. They added that about half of the Twitter accounts he followed contained terrorism-related postings.

Another informer told the government that once Mr. Nagi returned home, Mr. Nagi said he had pledged himself to Mr. Baghdadi and the Islamic State. The informer believed that Mr. Nagi “may do something in the United States.” By 2015, Mr. Nagi was making plans to go to Turkey and Yemen again, the informer said, and the informer, who was reporting to the government, apparently made plans to go with him “in order to elicit information from him,” an F.B.I. agent wrote in the criminal complaint.

Mr. Nagi was arrested early on Wednesday, and appeared in Federal District Court in Buffalo later in the morning. If convicted on the charge of seeking to provide material support to a terrorist group, he could face up to 15 years in prison.

“We continue to call upon people to contact law enforcement if they know of someone who has been influenced by ISIL rhetoric on social media,” Brian P. Boetig, special agent in charge of the F.B.I.’s Buffalo division, said in a statement.

Eight Million Civilians Living in State of Fear in Syria, Iraq
Assyrian International News Agency
August 5, 2015

The Islamic State has engaged in widespread and systematic human rights violations of the most serious kinds in Syria and Iraq, brutally forcing some eight million people to assimilate, flee or face death, according to a United Nations expert.

“These violations may amount to genocide, crimes against humanity, war crimes and widespread attacks on the civilian population,” Ben Emmerson, the UN special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, said in his report.

An estimated eight million people live under the Islamic State territory in Iraq and the Syrian Arab Republic. “The brutal nature and overall scale of abuses appears to be intended to reinforce the group’s absolute monopoly on political and social life and to enforce compliance and conformity among communities under its control. The result is that civilians who remain in ISIL-controlled areas live in a state of constant and almost unimaginable fear,” Emmerson said.

The Islamic State has targeted religious and ethnic groups in Iraq and Syria and committed acts of violence against civilians because of their affiliation with them. These communities have been forced to assimilate, flee or face death, he explained. “In Iraq, violence against the Yezidis have been reported with men being separated from women and children, then taken to ditches and brutally executed,” he added.

Extremely vulnerable to violence and discrimination, women face sexual and gender-based violence, including sexual slavery, killings, enslavement, and rape. They are confined to their homes and forced to adhere to a strict dress code, pointed out the expert. And children as young as six have been raped, tortured and kidnapped. Children as young as 8 years old have also been trained and used in military roles.

“They are reportedly made to watch videos of beheadings, and mass executions to desensitize them to forms of violence employed by ISIL.” The growing military capacity of ISIL also means the spread of fear and terror on civilians, Emmerson continued, emphasizing that more than 20,000 foreign fighters have now joined the ranks of non-State armed groups from about 80 countries around the world.

Addressing the military response by the international coalition of States, led by the United States, he said that civilians living in ISIL-controlled territory are mainly residing in urban areas where many of the coalition air strikes have been performed. It has also been reported that ISIL strategically places its fighters among civilians, in civilian areas or uses hospitals and schools as military bases, to provoke civilian casualties in the event of attacks by the coalition.

The UN Rapporteur then called attention to the lack of transparency with coalition operations in Iraq and Syria. “Each nation participating in the air war operates under unique rules of engagement, and transparency levels differ significantly,” the expert noted. While air strikes are carried out by different sources, it is difficult to know which States were responsible for an event and when they will occur.

The special rapporteur recalled the coalition states’ obligations under international law to ensure that their military operations are ‘transparent and accountable,’ and that any civilian death resulting from these operations is ‘promptly, independently and impartiality’ investigated. Highlighting the failure by the Security Council to take appropriate and immediate action to protect civilians in affected areas, Emmerson also stressed the need for the international coalition of states engaged in military acts against ISIL to ensure that measures are put into place to protect civilians and prevent further casualties.

 

Special Tribunal for Lebanon

Official Website of the Special Tribunal for Lebanon
In Focus: Special Tribunal for Lebanon (UN)

STL Prosecutor Says Probe into 3 Other Attacks has not Stopped
Naharnet Newsdesk
August 2, 2015

Special Tribunal for Lebanon Prosecutor Norman Farrell has said that the court has been investigating the attacks on MP Marwan Hamadeh, the former head of the communist party, George Hawi, and ex-Defense Minister Elias Murr.

Farrell told As Safir daily published on Tuesday that in addition to ex-Prime Minister Rafik Hariri’s murder, the STL is “working on” the assassination attempt against Hamadeh in October 2004, the killing of Hawi in June 2005 and the attempted murder of Murr in July the same year.

In 2011, Pre-Trial Judge Daniel Fransen received a request from the Office of the Prosecutor to determine whether or not these cases are connected to the February 14, 2005 assassination of Hariri.

He ruled that the Prosecutor had presented prima facie evidence that each of the three cases are connected, and are thus within the tribunal’s jurisdiction.

But As Safir said that there has been no information since 2011 on the progress made into the investigation of the three cases.

The Prosecutor has not issued any indictment, only saying in a yearly report issued by the STL that the three crimes are a “priority” for his office, said the report.

The office refused to divulge information on whether any progress had been made, only telling As Safir that it does not discuss cases that are still under investigation.

Meet the Pyromaniac Playboy Leading Hezbollah’s Fight in Syria
The Daily Beast
By Alex Rowell
August 3, 2015

Meet Mustafa Badreddine, the pyromaniac playboy leading the Party of God’s fight in Syria.

To close friends, he is “Dhu al-Faqar,”—the name, meaning, “the cleaver of vertebrae,” of the legendary double-tipped sword given by the Prophet Muhammad to his son-in-law, Ali bin Abi Talib, the patron imam of Shia Islam. To the Kuwaiti government, who sentenced him to death in 1984 for a spate of audacious bombings on targets including the American and French embassies and the airport, he is Elias Fouad Saab. To prosecutors at the Special Tribunal for Lebanon (STL) in The Hague, who are currently trying him in absentia on suspicion of assassinating Lebanese Prime Minister Rafiq al-Hariri in 2005, he is Mustafa Amine Badreddine. To genteel dining companions—and multiple mistresses—entertained at his seaside home north of Beirut, he is the boat-owning, Mercedes-driving Christian jeweler, Sami Issa.

Or, rather, he was. The Frank Abagnale Jr. of jihad has found yet another preoccupation in the last few years. According to sources as discrepant as the U.S. Treasury Department and a militantly pro-Hezbollah newspaper in Beirut, the man who also goes by the name Safi Badr is currently leading the Party of God’s military intervention against the Syrian uprising, personally sitting in on meetings between President Bashar al-Assad and Hezbollah Secretary-General Hassan Nasrallah. It’s a distinction that earned the “Specially Designated Global Terrorist” a fresh dose of American sanctions just last week.

Not that he’s spending all his days on the road. He was spotted back in Lebanon in January at the funeral of his nephew Jihad Mughniyeh—son of his cousin, brother-in-law, and lifelong partner-in-war-crime, the late Imad Mughniyeh—who had been killed in the Syrian Golan Heights by an Israeli drone strike that, according to a New York Times report, had in fact been intended for Badreddine (his real name) himself. He had “dropped out of the gathering,” at which an Iranian Revolutionary Guards general was also present, “at the last minute.”

Such improbable escapes are seemingly second-nature to the former death row inmate who owes his life to the insane decision by Saddam Hussein to invade Kuwait in 1990, opening the prisons and sending Badreddine on his merry way to the Iranian embassy, to be welcomed and swiftly redeployed to Beirut, where the civil war had conveniently just ended. Under the patronage of the Syrian occupation newly legitimized by the international community in the 1989 Taif Agreement, Dhu al-Faqar and his fellow “Islamic Resistance” mujahideen were about to spend some of their happiest years bringing misery and death to the 1,500 Israeli troops who would remain in south Lebanon till the year 2000.

Among the reasons Badreddine isn’t far better known is that, officially, he barely exists. In the words of STL prosecutor Graeme Cameron, “There are few official records in Lebanon relating to Mustafa Badreddine […] He has never been issued a passport. He has never been issued a driver’s license. He is not the registered owner of any property in Lebanon. The authorities have no records of him entering or leaving Lebanon. No records are held by the Ministry of Finance which would reflect that he pays any taxes. There are no bank accounts in any of the banks or any of the financial institutions in the country in his name.” In summary, “Badreddine passes as an unrecognizable and virtually untraceable ghost throughout Lebanon, leaving no footprint.”

“Hezbollah has many heads, some of them quite visible, like their social welfare networks and parliamentary presence,” Nicholas Blanford, veteran Lebanon reporter and author of Warriors of God: Inside Hezbollah’s Thirty-Year Struggle Against Israel, told The Daily Beast. “Other parts are not so visible. The world that Mustafa Badreddine inhabits is one of those dark, invisible ones.”

So much for Mustafa. “Sami Issa,” on the other hand, did leave prosecutors something of a footprint—an Italian-made, leather-soled one at that. According to Cameron, as “Issa,” Badreddine was “the de facto, but not the registered owner of a jewelry business with several branches in Beirut. He [had] an apartment in Jounieh, registered in the name of another, and a boat registered and insured in the name of another. He drove an expensive Mercedes automobile which was not registered in his name. He had several concurrent girlfriends and was seen regularly in restaurants and cafes socializing with his friends.” (The prosecution had not responded at the time of publication to an inquiry by The Daily Beast as to how exactly it came into this knowledge.)

Which, undoubtedly, is one way to go about unsuspected of being arguably Hezbollah’s best-ever bomb maker. And there is much in his choice of Jounieh, of all places, as adopted home that must have brought him mirth. This scenic bay at the feet of verdant, pine-smothered slopes some 20 minutes north of Beirut is Lebanon’s Cote d’Azur, where blue-blooded Francophones take their surgically-inflated girlfriends out to sail or waterski. At its northern end sits the once-glorious Casino du Liban—hangout of Sinatra and Brigitte Bardot—just a stone’s throw from the red light district. Nor are these the only ways in which it’s an atypical locale for an Islamic fundamentalist.

During Lebanon’s Civil War (1975-1990), Jounieh was de facto capital of the ethnically-cleansed Christian canton, ruled by vehemently anti-Muslim warlords openly backed by the army of Menachim Begin and Ariel Sharon. Indeed, from his apartment, “Issa” could possibly see the Aquamarina resort—still popular to this day—where Israeli boats would arrive periodically to replenish supplies. Who said Khomeinists can’t do irony?

How did Badreddine go from international terrorist to cross-wearing adulterer and to Hezbollah’s Syria commander? His biography starts with geography. He was born in 1961 in Ghobeiri, an inauspicious, overcrowded neighborhood in the concrete “belt of misery” on Beirut’s southern fringe, populated mostly by newly arrived Shia from the rural south seeking a piece of the capital’s climbing prosperity. When the civil war broke out, exactly one week after Badreddine’s 14th birthday, Ghobeiri and its environs formed a stronghold of the Palestinian and allied Muslim militias, encompassing the Sabra and Shatila refugee camps that would later witness an infamous massacre at the hands of their Christian foes. With his cousin, the indefatigable Imad Mughniyeh—eventually assassinated in a joint CIA-Mossad operation in Damascus in 2008—Badreddine joined and was trained by the Palestinian Fatah faction, adding to what a PLO veteran described as “a kind of roving Shiite fight club” embedded within the otherwise Sunni force. This sectarian distinction, though of little consequence in the early years, began to sour the air in the wake of the Iranian Revolution in 1979, not least when Saddam Hussein, a key sponsor of the PLO much admired by the fedayeen rank and file, began murdering major Shia figures like Grand Ayatollah Muhammad Baqir al-Sadr. By the time of the 1982 Israeli invasion of Lebanon, Badreddine and his cousin had defected to a pro-Tehran ultraist offshoot of the Shia Amal Movement, later to call itself Hezbollah, the Party of God.

He was evidently, even then at just 21, an established explosives virtuoso, for it was only one year later that he would carry out the world-headline-grabbing attacks in Kuwait, which included a truck-mounted suicide bomber smashing into the U.S. embassy, killing six. It’s believed he also contributed, as Mughniyeh’s bomb maker, to the similar—if much more spectacular—attack two months earlier on the U.S. Marine barracks in Beirut that killed 241 servicemen, watching the largest non-nuclear explosion in history unfold shoulder-to-shoulder with his cousin from a nearby rooftop. “During the planning stages [of the Beirut attack], Badreddine apparently developed what would become his trademark explosive technique: adding gas to increase the power of sophisticated explosives,” writes Matthew Levitt, author of Hezbollah: The Global Footprint of Lebanon’s Party of God.

Having hit on a winning formula, Badreddine has seemingly found no reason to change it. The STL prosecution argues the m.o. used in Kuwait—where Badreddine personally surveilled the bomb sites in advance, hand-picked the vehicles to be used, and delegated specific roles to a small team of subordinates—bears much in common with the approach uncovered in the Hariri case. According to the telecommunications analysis that forms the basis of the prosecution’s case, Badreddine was in possession of no fewer than 13 cellphones, in near-continuous contact with his four co-conspirators (among them another brother-in-law, Salim Jamil Ayyash). The call records show that for three months leading up to the Valentine’s Day suicide bombing, Badreddine micromanaged his team as they executed such tasks as following Hariri around town, buying the Mitsubishi van to be used on the day, and arranging for a phony claim of responsibility for the attack by a nonexistent Sunni jihadist group.

On at least one occasion, Badreddine himself tailed Hariri. At other times, he ran the show from places as various as Beirut’s southern suburbs, home to Hezbollah’s headquarters; Jounieh; and Faqra, a remote ski resort 1,500 meters above sea level where Hariri owned a vacation home. Former CIA operative in Lebanon Robert Baer, who was hired as a consultant by STL prosecutors, writes in his book, The Perfect Kill, that Badreddine even conducted business from inside the Casino du Liban, where he was fond of “spending his nights.”

Of course, not all of Badreddine’s phone calls were strictly work-related. When he wasn’t catching up with his wife, Fatima, or making appointments with his fellow gastronomes, his “several concurrent girlfriends” understandably consumed a portion of his time. Some may even have sensed he was up to something—at 2:31 a.m. on the very night before the attack, he sent one an SMS reading, “If you knew where I have been you would be very upset.”

Precious little else is known about these extramarital companions. Baer, the ex-CIA spy, assures readers in his book they were “beautiful,” lured by the pseudo-entrepreneur’s “large pleasure yacht” and “nouveau riche” extravagance. Conceivably, some were met on campus at the Lebanese American University (LAU), where “Issa” studied political science between the years 2002 and 2004. (None of the six LAU poli-sci professors contacted by The Daily Beast would admit to knowing “Issa” during his time. “[The] administration is very edgy about faculty talking about it,” said one, on condition of anonymity.) At any rate, according to The New York Times, Badreddine felt sufficiently attached to the women to disobey a 2009 order from the Iranian Revolutionary Guards to lay off the public appearances for a while. He “refused to give up his luxurious lifestyle and went on using his Sami Issa identity.”

In this, his character departs from that of Mughniyeh, who had no public life of any kind (and who preferred to marry a second wife, an Iranian named Wafaa, rather than betray his first one, Badreddine’s sister Saada). Perhaps, having inherited the office of his oldest comrade upon his 2008 assassination, Badreddine felt able at last to step out of the shadow of his predecessor. It’s worth noting that, while theirs is often portrayed as a mentor-protégé relationship, Badreddine is actually the elder of the two, and has been described by one Hezbollah member as the “more dangerous” one. Their bond, in reality, seems to have been most like a fraternal one, with Mughniyeh, for example, naming his eldest son Mustafa. When Badreddine was jailed in Kuwait, Mughniyeh went on a personal rampage to get him out, hijacking at least three commercial planes (Kuwait Airways Flight 221 in December 1984, TWA Flight 847 in June 1985, and Kuwait Airways Flight 422 in April 1988) and kidnapping every Westerner in Beirut he could get his hands on with the explicitly declared intent of swapping the hostages for his brother-in-law. At least five passengers and seven abductees lost their lives when his demands went unmet.

Once Badreddine—or “Elias Saab”—did at last make it out of his Kuwait cell, he reportedly began working with Mughniyeh not just on the south Lebanese front but also a number of exciting new side ventures into which Hezbollah began investing resources. These included the so-called “Unit 1800,” founded in the 1990s to assist Hamas and other Palestinian militants south of the Lebanese border in their own operations against Israel. Badreddine would eventually come to lead Unit 1800, according to The Times. There were also yet more ambitious projects outside the Middle East altogether. If it’s true, as a now-dead Argentine prosecutor believed, that Mughniyeh was involved in the van-driven suicide bombing that killed 85 civilians at a Jewish community center in Buenos Aires in 1994, then it would be no surprise if his sidekick Badreddine had a role as well.

More recently, the toppling of the rabidly anti-Shia dictatorship in Baghdad in 2003 offered God’s Partisans the strategic opportunity of a lifetime, which they wasted no time in seizing, quickly forming a new “Unit 3800” to help the Iranian Revolutionary Guards create Hezbollah duplicates among Iraq’s Shia so as to maximize Tehran’s stake in the new Iraq at the expense of all other takers. The experience, in which Badreddine apparently played a “coordinating” role, would prove invaluable when yet more Khomeinist proxy militias had to be assembled to combat the armed insurrection in Syria from 2012, though it was not without unintended consequences: Hezbollah fighters in the town of Qusair were reportedly displeased to discover the tunnel-building methods and equipment they’d dutifully passed on to Hamas had ended up in their opponents’ hands. Not for the first time, Badreddine may have reflected, had his trust in erstwhile Sunni brothers been poorly repaid.

The Party has long since cleared rebels out of Qusair, and much of the surrounding territory besides. But how much longer can Badreddine’s luck last? Three years into a war that Assad himself admits is straining his troops, Hezbollah is today sending boys too young to grow facial hair to the front lines—and watching them return in body bags at a faster rate than ever. Badreddine’s motto, according to the pro-Hezbollah paper, is “Either I return carried as a martyr, or carrying the banner of victory.” With yet another Israeli strike Wednesday in the same Quneitra province in which Dhu al-Faqar so nearly perished in January, one wonders how many bookies would bank on seeing that banner in the near future.

 

War Crimes Investigation in Burma

Myanmar Releases Almost 7,000 Prisoners in Holiday Amnesty
The Wall Street Journal
By Shibani Mahtani and Myo Myo
July 30, 2015

Myanmar on Thursday released almost 7,000 prisoners on a presidential pardon, including more than 200 foreigners and former military-intelligence officers, according to officials.

Among the foreigners released were 153 Chinese loggers who had been sentenced to life in jail last week, a move that could ease tensions between Myanmar and its northern neighbor.

Zaw Htay, director of the office of President Thein Sein, said in an interview that 6,966 prisoners were released in an amnesty, including 210 foreigners and nine former military-intelligence officers who were purged under Myanmar’s previous ruling junta.

He didn’t provide details on the foreigners who were released. But Win Naing Lynn, head of the prison in Myitkyina where the Chinese loggers were being held on charges of illegal logging, said that all of them had been released “in accordance with the amnesty, and the friendship between China and Myanmar.”

The loggers had been dealt unusually long sentences by the Myanmar government. Their arrest had angered officials in China, who had urged Myanmar to reconsider the length and severity of the sentences.

Hong Lei, spokesman for the Chinese foreign ministry, said that China had been in “close communications” with Myanmar throughout the process, according to a statement posted on the foreign ministry’s website. The statement added that the Myanmar government was handing over the individuals to Chinese authorities.

Thursday’s amnesty was one of the largest that Myanmar has seen in recent years. But activists and officials say they haven’t yet determined how many prisoners of conscience were among those released. A representative for the Bi Mon Te Nay journal, a weekly publication in Myanmar, said that four of their journalists and the publisher of the journal were released after spending almost a year in jail for articles that the government considered defamatory.

Among the military-intelligence officers released was Than Tun, a former brigadier general, and Tin Htut, son-in-law of the former prime minister and head of military intelligence Khin Nyunt.

About half a dozen other former military-intelligence officials were released late last year in a similar amnesty. These men were close associates of Mr. Khin Nyunt, released in 2012 after spending almost a decade under house arrest after falling out of favor with Myanmar’s military hard-liner Senior Gen. Than Shwe, who led the former junta.

The prisoners were freed from various locations across the country, including the notorious Insein prison north of downtown Yangon, where thousands of political prisoners were held under Myanmar’s military regime. Relatives gathered outside the prison gates on Thursday morning, waiting for news of their incarcerated family members.

The presidential pardons are in line with Mr. Thein Sein’s promise to free all prisoners of conscience, and others purged by the military regime, during his term. Myanmar jails were supposed to be free of prisoners of conscience by 2014, but the Assistance Association for Political Prisoners, a watchdog group which monitors the situation of political prisoners in Myanmar, says about 158 remain.

The amnesty comes as Myanmar gears up for a landmark election this November, which will be a key test of how far democratic reform has taken hold in this former pariah state after nearly six decades under military rule.

Mr. Thein Sein, who has led the nominally-civilian government since 2011, hasn’t ruled out seeking a second term as president, officials say.

 

TOPICS

Terrorism

Accused ‘Lone Wolf’ Arraigned on State Terrorism Charges in Killing of NJ Student
Fox News
By Pamela Browne and Rick Leventhal
August 4, 2015

The Muslim extremist accused of the random killing of a New Jersey college student last year in a case that first spotlighted the threat of “lone wolf” ISIS sympathizers acting on American soil was arraigned Tuesday on terrorism charges.

Ali Mohammad Brown, who is already facing charges in the murders of four men, including Brendan Tevlin, 19, and three Washington state men, faces the enhanced terrorism charges brought by New Jersey prosecutors. Brown, who told investigators he killed Tevlin on June 25, 2014, as an act of “vengeance” for innocent lives lost in Iraq, Afghanistan, Syria and Iran, is being held at the Essex County Correctional Facility in lieu of $5 million bail.

Last week, Allison Tevlin, the mother of Brendan Tevlin, told Fox News’ “Greta Investigates” team that the additional charge of terrorism brought against her son’s accused murderer “is a good thing.” Allison Tevlin and her husband were on hand at the Newark courthouse for Tuesday’s procedure.

“Hopefully it will bring more attention to my son’s case,” she added, noting her family “has been always confused why it didn’t receive more attention.”

This is the first murder case in New Jersey in which a defendant has been charged with terrorism under state law. Besides allegedly killing Tevlin on June 25, 2014, Brown is also accused of killing three other men in Washington state earlier last year. They were 30-year-old Leroy Henderson, Dwone Anderson-Young, 23, and Ahmed Said, 27.

In October 2014, Fox News was first to reveal that Brown had ties to a disrupted terrorist cell, a terrorist training camp on U.S. soil, and federal investigations going back more than a decade.

Details of Brown’s criminal life and connections to radical Islam prior to the murders of the four young men is under renewed scrutiny by authorities in both New Jersey and Washington state.

After his arrest in West Orange, N.J., in July 2014, Brown, 29, told detectives from both states that he “was engaged in jihad” and referred to the specific murder of Tevlin as a “just kill.”

Tevlin was murdered in West Orange while sitting in his car at a traffic light. He was shot eight times. In addition to Brown, two other men were arrested in Tevlin’s murder — Jeremy Villagran and Eric Williams. Charges against Villagran and Williams were recently dismissed.

In Seattle, authorities say ballistics link the same 9-mm. handgun that Brown used to kill Tevlin to the three other homicide investigations in Washington.

On June 1, 2014, in Seattle, Dwone Anderson-Young and Said were killed “execution style” as they sat inside a car.

Authorities say the same weapon was used on April 27, 2014, to gun down Henderson as he walked the streets of Skyway, Wash.

Two former FBI agents from the Joint Terrorism Task Force, or JTTF, told Fox News that Brown also may have traveled to one of the first terrorist training camps on U.S. soil when he was a teenager known as “Dog Cry Ranch.”

When former FBI Agents David Rubincam and David Gomez were interviewed by Fox in Seattle, Gomez said, “I believe Ali Mohammad Brown at some point traveled to Bly, Ore., prior to his arrest for financial institution fraud.”

The JTTF executed 19 search and arrest warrants in November 2004 after a 30-month investigation, which became known as the “Ranier Valley Roundup.” No one, including Brown, was charged with terrorism at the time.

Ethiopian Muslims Accused Of Terrorism, Jailed For 22 Years After Obama’s Visit
International Business Times
By Morgan Winsor
August 4, 2015

An Ethiopian court has jailed 18 Muslims, including clerics and a journalist, for terms of up to 22 years under controversial anti-terrorism laws in the mainly Coptic Christian country. The group was convicted last month on charges including terrorism and conspiracy to establish an Islamic state, after they were arrested three years earlier for protesting against the government, according to Ethiopia’s privately owned Addis Standard magazine.

Four of the defendants were sentenced to 22 years in prison each, while the sentences for the other 14 ranged from seven to 18 years. All 18 have denied the charges and said they were mistreated during their detention, BBC News reported. The group was among hundreds of thousands who staged protests in 2011 and 2012 over the government’s alleged interference with the affairs of Ethiopia’s highest religious body for Muslims.

Human rights groups have listed Ethiopia as the world’s second-worst jailer of journalists and one of the most repressive regimes in Africa. The severe sentencing came just weeks after U.S. President Barack Obama’s controversial trip to Ethiopia, during which he called on the government to improve its tainted record on governance. However, human rights activists criticized the U.S. president for not putting more pressure on the Ethiopian government to change its authoritarian ways, which it has long denied.

While meeting with Ethiopian Prime Minister Hailemariam Desalegn in the capital Addis Adaba last month, Obama largely praised the “democratically elected” government as an “outstanding partner” in fighting Islamist militants and stemming violence in the easternmost corner of Africa. But Ethiopia’s ruling party, which has governed for the past 24 years, has been widely accused of rigging elections and intimidating voters.

The Ethiopian People’s Revolutionary Democratic Front, led by Desalegn, and its allies secured all of the parliamentary seats in the country’s May 24 general elections, which lacked any viable competition or oversight by Western observers. Opposition leaders accused the ruling party of stifling dissent to ensure victory.

In 2009, Ethiopia passed two anti-terrorism laws that used broad language to define terrorism and terrorists, which human rights activists said the government has used to throw journalists and opposition leaders in prison without substantial evidence. At least 60 journalists have fled the East African country since 2010, while others sit in jail, according to a January report by Human Rights Watch.

Nearly 34 percent of Ethiopia’s 83 million people are Muslims. The minority community has been protesting since 2011 after the Ethiopian government allegedly insisted the Islamic Supreme Council accept members from an Islamic sect known as al Ahbash and tried to impose its teachings on the Muslim community. The government also allegedly sought to influence the operations of the Awalia mosque in Addis Ababa, according to Human Rights Watch.

“There seems to be no limit to the Ethiopian government’s use of its anti-terrorism law and unfair trials to stop peaceful dissent,” Leslie Lefkow, deputy Africa director of Human Rights Watch, has said. “The government’s treatment of these Muslim leaders bears the hallmarks of a politically motivated prosecution.”

Saudi Court Convicts Ex-Soldier of Terrorism and Joining IS
The New York Times
August 4, 2015

Semi-official Saudi news websites say a former soldier has been found guilty of fighting for the Islamic State group in Syria and has been sentenced to nine years in prison.

A court in Jiddah found the soldier guilty of taking part in training and violent operations with the Islamic State group in Syria. Saudi Arabia is part of the U.S.-led coalition carrying out airstrikes against the group in Syria and Iraq.

The court also barred him from traveling abroad for nine years after he completes his prison sentence and fined him 5,000 Saudi riyals (approximately $1,300).

News websites Alriyadh, Okaz and others carried the verdict Tuesday, saying the soldier had been working in the military corps before fleeing to Syria via Turkey.

Anjem Choudary Faces UK Terrorism Charges Over Islamic State
BBC News
August 5, 2015

Radical preacher Anjem Choudary has appeared at Westminster Magistrates’ Court charged with inviting support for the so-called Islamic State.

He and another man, Mohammed Rahman, indicated they would plead not guilty.

Anjem Choudary was remanded in custody until 28 August.

Both men have each been charged with one offence under section 12 of the Terrorism Act 2000, alleged to have taken place between 29 June 2014 and 6 March this year.

The BBC’s Simon Jones, reporting from outside the court, said that when asked by the judge to give an indication of how he would be pleading Choudary said: “Cameron and the police are guilty.”

The judge replied to say he took that to mean he would be pleading not guilty.

Mr. Choudary 48, was described in court as a “high-profile figure” in the media and on social media.

The court also heard that the charge is related to him sending messages to his 32,000 followers on Facebook.

‘Lectures’

Mr. Choudary, of Ilford in east London, and Mohammed Rahman, 32, of Whitechapel in east London, were arrested on 25 September last year on suspicion of being members of IS, which is a proscribed organisation.

Proscription means membership of the militant group is a criminal offence, and that the organisation cannot lawfully operate in the UK.

Sue Hemming, of the Crown Prosecution Service, said: “It is alleged that Anjem Choudary and Mohammed Rahman invited support for Isis [also known as IS] in individual lectures which were subsequently published online.”

Mr. Choudary is the former UK head of Islamist group al-Muhajiroun – also known as Islam4UK – which was banned in 2010.

The former lawyer planned an Islam4UK march through Wootton Bassett, Wiltshire, to honour Muslims killed in the Afghanistan conflict, but those plans were later scrapped.

The town is where repatriated bodies of dead UK soldiers were driven through the streets from nearby RAF Lyneham.

Ofcom launched an investigation into interviews broadcast on BBC, ITV and Channel 4 with Mr. Choudary in the days following the murder of Fusilier Lee Rigby.

Pakistan’s Supreme Court Rules to Allow Military Trials for Suspects in Terrorism Cases
US News & World Report
By: Asif Shahzad
August 5, 2015

Pakistan’s Supreme Court ruled on Wednesday to allow military trials for terror suspects — the latest in the government’s intensified campaign against terrorism in the wake of last year’s Taliban attack on a school that killed nearly 150 people, almost all of them children.

Prime Minister Nawaz Sharif welcomed the decision, which is seen as a major victory for his government, but critics and rights activists say it goes against the constitution and civil rights.

The ruling gives the green light for army courts to try civilians suspected in terrorism cases, said Zafrullah Khan, the government’s legal adviser. It followed several petitions that challenged a decision by parliament earlier this year to allow military courts to prosecute terror suspects over the next two years.

But the ruling also prompted concerns that the military courts could now sentence civilians to death in speedy trials held in secret, without due process or the oversight of human rights experts, the media or the public.

Pakistani human rights activist Husain Naqi said military courts were unconstitutional and “violate the basic right of fair trial and rule of law.” The group he works with, the Human Rights Commission of Pakistan, has raised concerns over the rising number of executions, urging the government to abolish the death penalty.

Khan, the adviser, said the ruling basically upheld the earlier parliament decision. In Pakistan, the parliament has broad rights, including approving amendments to the constitution.

Pakistan has been fighting Islamic militancy for over a decade but authorities took extraordinary measures after the Peshawar school attack, including lifting a moratorium on executions, in place since 2008.

Since the lifting of the moratorium, nearly 200 convicts on death row have been hanged in Pakistan. Militants, too, have been executed among that number, but the majority of them were people convicted of other crimes.

The Pakistani Taliban have been waging war against the state in a bid to overthrow the government and install their own harsh brand of Islamic law, or Sharia. Over a decade of violence, including suicide bombings and armed attacks, has killed tens of thousands of Pakistanis.

When the parliament established the military courts for terror cases, the prevailing argument was that civilian courts are not able to successfully try and convict terrorist suspects since such suspects are able to intimidate witnesses, prosecutors and judges.

In one example, judges would have tea and cookies brought to one of Pakistan’s most feared Islamic militants, Malik Ishaq, during past court proceedings against him. Ishaq was gunned down and killed while being transported in a police van last month.

Also, scores of judges and prosecutors have pulled out of almost 200 cases, including some 70 trials over the killings of minority Shiite Muslims, against Ishaq apparently fearing for their own lives.

The prime minister told lawmakers in parliament he hopes the decision will discourage terror attacks. “Unusual situations warrant unusual measures,” Sharif said.

Constitutional lawyer S.M. Zafar said the decision shows the “civilian government, army and courts are on the same page in the fight against the menace of terrorism.”

But another lawyer, Sheikh Ahsanuddin, criticized the ruling, saying it will undermine the judiciary and civil rights.

“We fear the military courts will override justice,” he said, adding he will file a review appeal against the Supreme Court’s ruling.

It was not immediately unclear when the military trials, which are held in secret, will resume. The trials were suspended pending the petitions to the Supreme court.

U.S. Terrorism Victims File Lawsuit Targeting Part of Iranian Nuclear Deal
The Wall Street Journal
By Nicole Hong
August 5, 2015

A group of American terrorism victims filed a lawsuit Wednesday asking a federal judge to stop the U.S. government from releasing billions of dollars in Iranian assets as part of the Obama administration’s nuclear deal.

The approximately two dozen victims are Americans injured or killed in suicide bombings in and around Israel from 1995 to 2006 and their family members.

The victims previously sued Iran and were awarded over $1.5 billion, including $152.7 million in compensation, by federal judges who found that Iran helped support the terrorist attacks against them. Iran hasn’t paid the judgments, some of which date back over a decade.

If the nuclear deal, which was reached on July 14, is approved by Congress, it would return an estimated $100 billion to $150 billion in overseas bank accounts back to Iran, making it more difficult for terrorism victims to seize that money as part of their judgments, the victims’ lawyers said in a complaint filed in Manhattan federal court on Wednesday. The money, which is primarily from frozen oil profits, should instead be given to victims, they argue.

“To release the funds instead of turning them over to the victims would make a farce out of this hard-fought legal process,” said Nitsana Darshan-Leitner, one of the lawyers representing the victims.

Congress is expected to review the agreement and vote on it in early September.

The lawsuit targets Secretary of State John Kerry and Treasury Secretary Jacob Lew. A spokeswoman for the State Department said the department doesn’t comment on pending litigation. The Treasury Department didn’t respond to a request for comment.

Mr. Obama has called on Congress to approve the deal and threatened to veto any vote against it. The negotiated deal will limit Iran’s nuclear activity for at least a decade in exchange for the lifting of economic sanctions.

The victims have been trying to enforce their judgments and have gone after Iranian assets for years, according to their lawyers, including an unsuccessful attempt to benefit from Iranian artifacts being held at museums in Boston and Chicago.

In the past two decades, victims have been awarded a total of approximately $45 billion by U.S. federal judges in lawsuits against Iran, none of which has been paid by Iran. Although some victims see the nuclear deal as a potential catalyst to pressure Iran to negotiate with victims, others have expressed concerns that the deal could reduce the victims’ leverage and make it more difficult to stop Iran from financing terrorism.

 

Piracy

On the trail of fuel oil pirates in Southeast Asia
SeatradeMaritime News
By Vincent Wee
July 27, 2015

The most recent ReCAAP ISC half yearly report has revealed the scale of the sharp rise in fuel siphoning and hijacking incidents in the first half of the year and also revealed some patterns in the practice.

Regular followers of Seatrade Maritime News would have noticed the increasing regularity with which incidents of hijacking, leading to siphoning/theft of fuel cargoes, have occurred in the South China Sea (SCS) as well as the Straits of Malacca and Singapore (SOMS), especially in the last two months.

ReCAAP figures show that the number of siphoning incidents has risen to eight in the first half of this year, compared to five during the same period in 2014, and one incident in 2011, while no such incidents were reported during the equivalent first half periods in 2013 and 2012. In addition, it should be noted that there were also three attempted siphoning/hijacking cases that were unsuccessful due to various reasons including intervention from authorities.

According to ReCAAP’s analysis, in all the 11 incidents, more than half involved perpetrators operating in groups of seven to nine, usually armed men. Worryingly, nine of the 11 cases involved perpetrators armed with serious weapons such as guns and knives. However, in the incidents involving perpetrators armed with guns, the firearms were not discharged except in the incident involving Orkim Harmony where one of the crew was shot in the leg.

In addition, in the incident involving Lapin on Feb 13, the perpetrators threatened the crew with an “explosive” package left onboard the vessel, which was subsequently found to comprise only an electric circuit with no explosives or detonator attached.

While not going beyond its information sharing mandate, ReCAAP acknowledges that there are criminal syndicates at work and has sought to educate masters and crew on evidence preservation so that “critical leads and evidence can be collected and shared with the INTERPOL to build its maritime piracy database to connect the dots and narrow down the identities of syndicates, individuals and masterminds” behind the racket.

Anecdotal evidence from the incident reports also suggest that not only are the syndicates well organized, with significant assets, but on the lookout to expand, with one syndicate even reportedly trying to recruit members from among the crew they were hijacking at the time.

The Malaysian-flagged product tanker Orkim Victory for example, was hijacked barely hours after it left the refinery in Malacca. The hijackers of the Orkim Harmony meanwhile reportedly had access to a tugboat during their attack.

Apart from the usual warnings to maintain enhanced vigilance and producing a guidance focusing on best practices for the relevant tanker industry, incorporating interviews with ship owners whose vessels had been boarded before, ReCAAP has also highlighted once again the need to address the issue from the onshore end.

Meanwhile, at an overall level, the number of incidents of piracy and armed robbery against ships in Asia during the first half rose 18% to 106 compared to the same period last year and reflects the continuous rise in incidents since 2013.

It is interesting to note how the practice has persisted despite the falls in oil price over the same period. Whether it remains a lucrative enough business under future market conditions, or whether it is just another branch of business for the pirates remains to be seen.

Piracy analysis: EU Somali coastguard initiative delivers
IHS Maritime 360
By Girija Shettar
July 27, 2015

The EU’s capacity building division has delivered more training and equipment to the Somali coastguard in Mogadishu, although experts warn that the trained officers should also be paid if maritime security efforts are not to fail.

EUCAP Nestor (Horn of Africa and Western Indian Ocean) has delivered six Nissan 4×4 vehicles and IT and communications equipment such as computers and GPS devices to enhance on-shore capability and connectivity. Training in navigation and basic maritime investigation has been given over the last 12 months.

The future role of the developing Somaliland coastguard in the security and development of the region was discussed at a high level meeting in April. Hosted aboard the EU Naval Force flagship, HNLMS Johan de Witt, it was attended by representatives from Somaliland authorities, international partners, and non-governmental organisations.

However, an expert on Somalia, Dr Stig Hansen, told IHS Maritime that failing to ensure good, regular wages for trained up officers in the security sector and custodial officials was one area where international development efforts continued to fail the region.

Hansen, who conducted field research in Mogadishu during 2005-14 and is the author of Al Shabaab in Somalia: The History and Ideology of a Militant Islamist Group, 2005-2012 (Oxford University Press, 2013), said, “It’s the biggest crime in Somalia for the last 10 years: raising armies, raising police, raising custodial officials, and not paying them. This helps piracy a lot and it helps Al Shabaab a lot.”

He said presidents had performed inconsistently when it came to guaranteeing good, regular pay to security sector employees. He pointed out that if officers were not paid, the institutions they were trained to uphold simply did not exist. The risk is that unpaid security players will not uphold the law and may actively act against it.

Time bomb

“It’s a time bomb for when you withdraw the navy and security measures offshore,” said Hansen, who added that officers had in the past turned to piracy because they had not been paid.

“This way, the UN has participated in training the pirates. This is straight idiocy,” he said.

Wages could easily be a condition of international development projects, said Hansen, who was puzzled as to why this had not been the case to date.

“There is a lot of commercial interest in the development sector,” said Hansen. “People who want to promote their projects and don’t want to scrutinise them properly. I am not talking about Somalis here, I am talking about non-African officials as well as African officials within these sectors.”

Programmes needed to be properly vetted locally, he said.

His views are supported by fellow Somalia expert Dr Brittany Gilmer, author of Political Geographies of Piracy: Constructing Threats and Containing Bodies in Somalia (Palgrave, 2014) and a former consultant for the United Nations Office on Drugs and Crime (UNODC) high-profile regional office.

Gilmer told IHS Maritime that development projects, including the prisons built to hold pirates, tended to increase internal tensions by ignoring cultural and political realities.

With the counter-piracy story evolving into the broader one of maritime security and development in the Horn of Africa, Gilmer said efforts are geographically mismatched.

Contradictions include development projects that are launched in areas with better security (Somaliland, Djibouti) to prevent people turning to piracy: innocent populations are thus labelled as potential pirates, creating a “pirate craze” where a potential pirate is more likely to win counter-piracy-related development projects, said Gilmer. Innocent people living in less secure areas such as Puntland do not benefit, while ex-pirates do, under rehabilitation and jobs programmes.

More perilously, some projects threatened to increase internal tensions by failing to take into account cultural and political realities, say Gilmer and Hansen.

Pirate prisons are an example. The strong clan system in Somalia means that every official or individual has clan loyalties and obligations. Prisoners will be granted “amnesties” from their clan leaders and disappear, said Hansen.

“You need to have a wide dialogue that includes the clans because, make no mistake about it, the clans are able to give amnesties to the people inside the prisons. That prisons inside Somalia are not clan-based is just an illusion,” he said.

Gilmer agreed. “A clan leader once told me: if you want to stop piracy, then let us implement our own system,” she said.

Meanwhile, clan politics hamper the new system. Gilmer recounted an experience at Hargesia prison in Somaliland. The prison refused pirates from Puntland, fearing retaliations, which have included Puntland pirates kidnapping Somaliland citizens in exchange for the release of prisoners.

“Government officials we were working with in Somaliland said if they took Puntland pirates it would increase tensions between the regions,” said Gilmer.

Clans have their own judicial system and traditionally, wrong-doers are dealt with by their clan leaders. The prison system takes this responsibility away from the clans, effectively undermining local regulatory structures.

“Clans need to have some kind of ownership of the justice process so that they will respect its workings. Otherwise it will not function,” said Hansen. “Local entities have very close connections with the clan systems in [their region] and can handle [the prisoners] better than another region could.”

Asked if development in one part of Somalia could thus offer jobs for people in other parts of the country, Gilmer said that free interflow of people between regions was hindered by clan divisions. “Where you place development projects is geopolitical,” she said.

Thus, while naval patrols offshore are “helping to keep Somalis in Somalia”, according to Gilmer, capacity building on shore is maintaining the status quo for the poorest and most vulnerable Somalis.

However, development of the Port of Mogadishu by Turkey’s Albayrak Group, announced in June, may offer hope for troubled south-central Somalia. A video of the plan at http://bit.ly/1elmOVN envisions the port cashing in on the 60% of world maritime trade that passes through the region.

Hansen said the facility could be the key port for central Somalia, regenerating its key exports of camels and goats to Saudi Arabia, and leading to expanded infrastructure generating alternative livelihoods. But, with security in the area extremely tentative, “it needs a long-term strategy”, he said.

East Africa: Military Surveillance Keeps Somali Pirates At Bay
Hellenic Shipping News
August 1, 2015

Military incursions on and off-shore Somalia have helped end piracy attacks on key shipping routes around the Gulf of Aden, new data showed even though maritime experts called for caution.

The current lull solidifies a trend since May 2012 when the last successful hijacking took place, raising hope for more reliable shopping services and lower cost of goods leaving and entering the east African market.

“Encouragingly, in the second quarter of 2015, no reports were received off the coast of Somalia,” Pottengal Mukundan, director of the International Maritime Bureau (IMB) said.

“Although no attacks have been reported off Somalia, IMB advises that the security situation in the Horn of Africa remains uncertain. IMB urges ship masters to remain vigilant when transiting these waters and to adhere to the industry’s best management practice.”

Piracy off the coast of Somali has in the past few years cost the global shipping industry billions of shillings in ransom pay-outs to secure captured vessels, cargo and crew.

The menace has also led to increased operational costs due to higher insurance premiums and use of longer alternative routes round the Cape. Not forgetting hiring of special security personnel to escort vessels through the Gulf of Aden and other measures such as watchtowers and razor wire.

Prices of basic industrial and household items have also risen sharply after shipping lines passed on the additional costs to consumers down the supply chain.

A deployment of naval forces around the Gulf of Aden has helped lower the incidents of piracy attacks in the past two years.

International navies have stepped up pre-emptive action against pirates, including strikes on their bases.

But even as piracy off the shore of Somalia seems contained, authorities in hotspots around the world registered mixed trends.

In South East Asia there has been sustained hijacking of small coastal tankers by maritime pirates, averaging one attack every two weeks. Five small tankers were hijacked in South East Asian waters in the second quarter of 2015 alone, bringing the total number of vessels hijacked globally in 2015 to 13.

Globally, 134 incidents of piracy and armed robbery against ships were reported to the IMB Piracy Reporting Centre in the first six months of 2015; an increase on the 116 reports for the corresponding period in 2014.

Pirates managed to board 106 vessels and were responsible for 13 hijacking cases and 15 attempted attacks worldwide. So far in 2015, 250 crew members have been taken hostage, 14 assaulted, 10 kidnapped, nine injured and one killed.

United Nations and Somali fishing officials warned in March that a rise in illegal fishing off Somalia could spark a resurgence in piracy, nearly three years after the pirates’ last successful hijacking in the Indian Ocean.

Alan Cole, an official at the United Nations Office for Drugs and Crime, said piracy could return as criminal gangs and pirates use the rise in illegal fishing as a pretext to hijack other vessels.

“The international community has spent millions of dollars trying to counter piracy, help Somalia and make sure that (sea) trade is not interrupted. But because of the activity of a relatively small number of illegal fishing vessels, all that is put at risk,” Cole said.

 

Gender-Based Violence

Who’s Fighting Human Trafficking? U.S. Releases Rankings
CNN
By Hilary Whiteman
July 28, 2015

Cuba, Kenya and Saudi Arabia are doing better at fighting human trafficking. Egypt, Ghana and Bulgaria are doing worse.

That’s according to the latest annual report from the U.S. State Department, which rates 188 countries on their efforts to stamp out trafficking in persons.

Secretary of State John Kerry says the Trafficking in Persons (TIP) Report aims to enlighten, energize and empower activists fighting the “human trafficking industry” across every continent.

But still, some of the 2015 rankings are controversial with rights groups questioning whether politics has trumped that ambition.

Malaysia, for example, has been upgraded, while Thailand remains on the list of worst-performing countries. Both are part of of people-smuggling route for Rohingya Muslims fleeing persecution in Myanmar.

Mass graves holding the bodies of dozens of migrants were discovered in Malaysia earlier this year, after the cutoff for this year’s TIP Report.

The report raises Malaysia to the Tier 2 Watch List from bottom-ranked Tier 3, where it fell last year, after two consecutive years of failing to do enough to address the issue.

The fall was an automatic downgrade, in compliance with rules introduced by the State Department in 2013 that dictate a country has to move up or down after two years on the Tier 2 Watch List.

Thailand was also demoted for the same reason, but this year remains on Tier 3, an apparent discrepancy for activists who were pushing for both countries to remain in Tier 3.

State of human trafficking

The U.S. State Department puts countries that do the most to fight human trafficking in Tier 1, and the least in Tier 3. Tier 2 includes a Watch List for countries in danger of dropping to Tier 3.

This year, 18 countries were upgraded and another 18 were downgraded. Those downgraded from the Tier 2 Watch List to Tier 3 included Belarus, Belize, Burundi, Comoros, the Marshall Islands and South Sudan.

Penalties for countries demoted to Tier 3 are at the discretion of the U.S. President, but could include restrictions on non-humanitarian assistance and funding.

Alongside Malaysia, upgrades from Tier 3 to the Watch List included Cuba, the Democratic Republic of Congo, Papua New Guinea, and Uzbekistan.

Kerry said: “It is a battle against money. It is a battle against evil. It is remarkable that in 2015 we face a modern-day version of slavery.”

Mass migrant graves

Two months ago, it emerged that deep in the jungle along Malaysia’s border with Thailand were abandoned makeshift prisons once thought to hold migrants held for ransom by human traffickers.

Alongside wooden cages were mass graves believed to hold the bodies of Bangladeshi migrants and Rohingya Muslims fleeing Myanmar, also known as Burma.

Similar macabre scenes had been earlier uncovered in jungle camps in Thailand, after a series of raids by Thai police. On Friday, Thailand announced it had charged 72 people with crimes of human trafficking and was looking for another 32 suspects still at large.

In May, Malaysia hosted talks with delegates from Thailand and Indonesia about how to address the growing crisis of migrants trapped on trafficking boats off the coast. Malaysia and Indonesia agreed to take the migrants in, provided they were given help to resettle them with one year.

However, the raids, arrests and talks came after the March 2015 cut-off for consideration in this year’s report, which will raise questions as to why Malaysia was upgraded, yet Thailand remains on Tier 3.

Rights activists point out that Malaysia is one of the countries in negotiations with the U.S. as part of the Trans Pacific Partnership (TPP) agreement. An amendment to the Trade Promotion Authority Act states a fast-track deal can’t be done with a country that’s on the Tier 3 list.

Phil Robertson, Asia division deputy director for Human Rights Watch, said: “Malaysia’s record on stopping trafficking in persons over the past year is far from sufficient to justify this upgrade from Washington. Migrants are being trafficked and abused with impunity, Rohingya victims’ bodies are being pulled from shallow graves at the border and convictions are down year on year. How can the State Department call this progress?”

He added: “The discussion on Malaysia is… a triumph of diplomatic writing trumpeting process rather than impact. This upgrade is more about the TPP and U.S. trade politics than anything Malaysia did to combat human trafficking over the past year. Sadly, this action does significant damage to the credibility of a report that is a critical part of global efforts to combat slavery.”

Before the report’s release, the Alliance to End Slavery and Trafficking (ATEST) said any move to upgrade Malaysia would be “purely political and incredibly detrimental to combating human trafficking in that country.”

Meanwhile, the Thai Ministry of Foreign Affairs released a statement saying its ranking “does not accurately reflect the significant efforts” made over the year. It said Thailand “translated its genuine political will to combat human trafficking into practical policies, effective implementation, and concrete results” calling the issue a national priority.

It added Thailand had cracked down on trafficking gangs and corrupt officials, and was tackling slavery in the fisheries industry.

Other notable changes on this year’s list:

Cuba’s promotion from Tier 3 to the Tier 2 Watch List comes just a week after restoration of the country’s diplomatic ties with the U.S., which were frozen in 1961.

After three consecutive years on the Tier 2 Watch List, Kenya — where Barack Obama has just made his first trip since becoming U.S. President — made it back on the Tier 2 list. It follows last year’s recommendation to increase the number of prosecutions, raids and inspections of potential trafficking hubs.

Saudi Arabia also made it off the bottom tier after making progress in prosecuting offenders and protecting trafficking victims. However, the 2015 report said that it was still not “proactively” investigating and prosecuting employers for withholding workers’ passports and pay.

Of the downgrades, Belarus earned an automatic demotion to Tier 3 after two years on the Watch List, as did Comoros, an island off the coast of Eastern Africa, where the report says children are particularly at risk of forced labor.

Child trafficking is also considered to be a huge problem in Ghana, which dropped to the Watch List from Tier 2. The country is set to receive $5 million in U.S. aid to combat the problem after the signing last month of the Child Protection Compact Partnership. The money will be used to pursue offenders, rehabilitate victims and educate the public.

Egypt also dropped to the Watch List, following its poor record of addressing the sexual exploitation of women and children. This year’s report said that while the country had set up a national anti-trafficking hotline, its efforts to address the problem focused on Egyptian nationals, not foreign trafficking victims.

Considered a corridor for men, women and children trafficked to Western Europe, Slovenia was downgraded from Tier 1 to Tier 2. The report said that while the country was trying to train law enforcement officers, prosecutions were at a five-year low and there had been no convictions at all during the year.

Mexican State Hands Down Historic Sentence for Femicide
Reuters
By Lizbeth Diaz, Anna Yukhananov, and Lisa Shumaker
July 28, 2015

Five men in northern Mexico were sentenced to an unprecedented 697 years in prison for the gender-driven killing of 11 women, in a state where hundreds of young women have been murdered since 1990.

The sentence was the longest-ever given for a femicide, the killing of a woman due to her gender and was based on scientific evidence, said an official at the attorney general’s office in the state of Chihuahua, home of the border city of Ciudad Juarez, which in 2008 recorded one woman missing each day.

“They used ploys to recruit young women into prostitution and drug distribution,” Chihuahua’s attorney general’s office said in a statement. “Then, when they were no longer ‘useful,’ they took their lives and threw their bodies in the Navajo Arroyo, in the Valley of Juarez.”

In addition to prison time of nearly 700 years each, those sentenced also have to pay a total of 9 million pesos ($550,000) in damages to the families of the victims, whose bodies were found in 2012.

Authorities have prosecuted some of the cases but have not always handed down long prison sentences due to the ambiguity around declaring femicides, and also to the overall high rate of impunity in the country, where many crimes go unpunished.

Mexico’s Supreme Court in March for the first time ordered that a case be probed as a femicide, after prosecutors in the State of Mexico initially labeled it a suicide, based on an investigation seen as plagued by anomalies.

The National Citizen Femicide Observatory, a coalition of human rights groups, believes that some 3,892 women were murdered in Mexico between 2012 and 2013, but only 16 percent of cases were investigated as femicides.

Nigeria Boko Haram Crisis: Army Rescues 178 People
Reuters
By Lizbeth Diaz, Anna Yukhananov, and Lisa Shumaker
July 28, 2015

In a statement released on Sunday, it said that 101 of those freed were children and a further 67 were women.

The statement did not say if the girls abducted from a school in Chibok in April 2014 were among them.

The military also says that a Boko Haram commander was captured and several camps were cleared.

Boko Haram has killed some 5,500 civilians in Nigeria since 2014.

More than 200 of the Chibok girls are still missing, more than a year after they were kidnapped from their school in northern Nigeria.

Last October, the government said it had secured an agreement for a ceasefire and the release of the girls taken from Chibok, but Boko Haram subsequently denied this.

The abduction of the girls in Chibok sparked global outrage with many joining a campaign online to free them using the hashtag #BringBackOurGirls.

Several nations including the US and China vowed to help find them and there have been reported sightings of the girls, but none has been found to date.

At least 2,000 women and girls abducted by Boko Haram since the start of 2014, according to the human rights organisation Amnesty International.

Boko Haram’s insurgency, and the army campaign against it, have killed more than 15,500 people since 2012. The violence has recently spread to neighbouring Niger, Chad and Cameroon.

Somalia, Where 95% of Girls Undergo Female Genital Mutilation, May Soon Ban Practice
Huffington Post
By Eleanor Goldberg
August 4, 2015

Somalia has one of the highest rates of female genital mutilation in the world, but the country may soon bring that figure down to zero.

Currently, about 95 percent of girls in Somalia between the ages of 4 and 11 undergo FGM, according to UNICEF. Set on shielding girls from the harmful procedure, the country’s Ministry of Women Affairs and Human Rights announced that it will introduce a law that will ban FGM altogether, Somali news outlet Horseed Media reported.

‘’Time has come for us to eradicate this bad practice and protect the rights of girls and women in our country,’’ Sahra Mohammed Ali Samatar, minister of Women Affairs, said at a recent conference.

FGM, a practice that involves the partial or total removal of the external female genitalia for no medical benefit, was officially banned by the UN in 2012, but the procedure is still widely practiced.

That same year, Somalia indicated it would ban the practice, but activists say this latest measure is more “concrete,” Brendan Wynne, of advocacy group Equality Now, told HuffPost in an email.

Across the globe, more than 125 million girls and women have been subjected to FGM, according to WHO. In addition to facing such health risks as hemorrhage, bacterial infection, infertility and recurring urinary tract infections, girls are often cut with razors or knives without any anesthetic.

“I was just 7 years old when I was cut,” Leyla Hussein, a British woman who is originally from Somalia, told WHO. “The first thing I heard was my sister screaming. Then it was my turn. Four women held me down while they cut my clitoris. I felt every single cut. The pain was so intense -– I blacked out.”

Samatar’s announcement comes on the heels of President Barack Obama’s Africa tour where he pushed for women’s rights and the outlawing of misogynist practices.

While speaking in Kenya, Obama called on the country to stop cutting its girls, among other damaging traditions.

“There’s no reason that young girls should suffer genital mutilation, there’s no place in a civilised society for the early or forced marriage of children,” Obama told a crowd of 4,500 people. “These traditions may go back centuries; they have no place in the 21st century.”

While it’s challenging to combat centuries-old traditions, other African nations have already demonstrated that eliminating the procedure is possible.

In May, as one of his final acts as president, Goodluck Jonathan banned the procedure in Nigeria, the Guardian reported. It was a particularly impressive feat considering that Nigeria accounts for about quarter of all FGM cases worldwide.

“This is fantastic news and a landmark moment,” UK international development secretary Justine Greening told the Guardian. “We are now one step closer to ending this harmful practice.”

 

Reports

UN Reports

In ISIL-controlled territory, 8 million civilians living in ‘state of fear’ – UN expert
UN News Centre
July 31, 2015

The Islamic State in Iraq and the Levant (ISIL) has engaged in widespread and systematic human rights violations of the most serious kinds in Syria and Iraq, brutally forcing some 8 million people to “assimilate, flee or face death,” according to a United Nations expert.

“These violations may amount to genocide, crimes against humanity, war crimes and widespread attacks on the civilian population,” according to Ben Emmerson, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.

An estimated 8 million people live under ISIL territory in Iraq and the Syrian Arab Republic.

“The brutal nature and overall scale of abuses appears to be intended to reinforce the group’s absolute monopoly on political and social life and to enforce compliance and conformity among communities under its control. The result is that civilians who remain in ISIL-controlled areas live in a state of constant and almost unimaginable fear,” said Emmerson in his report, which was presented to the Human Rights Council last month.

ISIL has targeted religious and ethnic groups in Iraq and Syria and committed acts of violence against civilians because of their affiliation with them. These communities have been forced to assimilate, flee or face death, he explained. “In Iraq, violence against the Yezidis have been reported with men being separated from women and children, then taken to ditches and brutally executed,” he added.

Extremely vulnerable to violence and discrimination, women face sexual and gender-based violence, including sexual slavery, killings, enslavement, and rape. They are confined to their homes and forced to adhere to a strict dress code, pointed out the expert. And children as young as six have been raped, tortured and kidnapped.

Children as young as 8 years old have also been trained and used in military roles. “They are reportedly made to watch videos of beheadings, and mass executions to desensitize them to forms of violence employed by ISIL.”

The growing military capacity of ISIL also means the spread of fear and terror on civilians, Mr. Emmerson continued, emphasizing that more than 20,000 foreign fighters have now joined the ranks of non-State armed groups from about 80 countries around the world.

Addressing the military response by the international coalition of States, led by the United States, he said that civilians living in ISIL-controlled territory are mainly residing in urban areas where many of the coalition air strikes have been performed. It has also been reported that ISIL strategically places its fighters among civilians, in civilian areas or uses hospitals and schools as military bases, to provoke civilian casualties in the event of attacks by the coalition.

The UN Rapporteur then called attention to the lack of transparency with coalition operations in Iraq and Syria.

“Each nation participating in the air war operates under unique rules of engagement, and transparency levels differ significantly,” the expert noted. While air strikes are carried out by different sources, it is difficult to know which States were responsible for an event and when they will occur.

The Special Rapporteur recalled the coalition states’ obligations under international law to ensure that their military operations are “transparent and accountable,” and that any civilian death resulting from these operations is “promptly, independently and impartiality” investigated.

Highlighting the failure by the Security Council to take appropriate and immediate action to protect civilians in affected areas, Mr. Emmerson also stressed the need for the international coalition of States engaged in military acts against ISIL to ensure that measures are put into place to protect civilians and prevent further casualties.

Experts like Mr. Emerson work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.

UN Officials Denounce West Bank Arson Attack that Killed Palestinian Child
The Jurist
By Colleen Mallick
August 1, 2015

United Nations (UN) Secretary-General Ban Ki-moon and recently appointed UN special envoy in the Middle East Nickolay Mladenov condemned the arson attacks in the West Bank on Friday that killed a Palestinian child and severely wounded the child’s parents and sibling. “Continued failures to effectively address impunity for repeated acts of settler violence have led to another horrific incident involving the death of an innocent life,” reads the statement from Mr. Ban issued by a spokesperson in New York. “The absence of a political process and Israel’s illegal settlement policy, as well as the harsh and unnecessary practice of demolishing Palestinian houses, have given rise to violent extremism on both sides.” Mr. Mladenov stated [UN report] that the “heinous murder was carried out for a political objective,” and “the need for an immediate resolution of the conflict and an end to the occupation” is imminent. The Secretary-General urges both sides to reconcile and move towards peace. The attack occurred in the Occupied West Bank village of Duma, when Jewish extremists allegedly set fire to a Palestinian home while the family slept.

The Israel-Palestine conflict continues to be a significant international legal issue. Amnesty International (AI) on Wednesday released a report that points to evidence of war crimes committed by Israel in the August 2014 retaliation for the capture of an Israeli soldier by Hamas. The attacks led to 135 Palestinian civilian deaths, including 75 children. In June Palestinian Foreign Minister Riyad al-Maliki said that he had presented documents to the International Criminal Court (ICC) to assist in the investigation of alleged Israeli war crimes. Also in June, a report released by the UN Independent Commission of Inquiry on the 2014 Gaza Conflict found that both Israel and Hamas may have committed war crimes during the conflict. In May, AI accused Hamas forces of leading a series of abductions, torturous acts and unlawful killings against Palestinians. In April a UN independent board of inquiry announced that it uncovered evidence that at least 44 Palestinians were killed by “Israeli actions” while sheltering at UN locations during the Gaza conflict.

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

Don’t We Matter?: Four Years Of Unrelenting Attacks Against Civilians In Sudan’s South Kordofan State
Amnesty International
August 3, 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). At various points during the last four years, there have been military offensives by one or both parties to the conflict which have increased the dangers faced by civilians. In April 2014 the Sudanese government launched a military operation called “Decisive Summer” whose implementation involved an intensified campaign of aerial bombardment, and increased civilian casualties and destruction of civilian property. As the conflict in South Kordofan and Blue Nile States enters its fifth year, there is once again intensified military activity. There was a sharp increase in attacks by the SAF in April 2015, making it one of the months with the highest number of attacks since the start of the armed conflict. The conflict continues unabated at this time.

 

TRUTH AND RECONCILIATION COMMISSION

For Hissène Habré, a Trial by Refusal
New York Times
By Thierry Cruvellier
July 27, 2015

DAKAR, Senegal – Surrounded by 10 muscular prison guards, Hissène Habré, his frail body entirely swathed in white, looked smothered in his chair. He was sitting in the front row of the immense courtroom, fingering Muslim prayer beads. His boubou covered all but his eyes, and they were partly hidden by his glasses.

Mr. Habré, the 72-year-old former president of Chad, is accused of crimes against humanity, war crimes and torture regarding the deaths of an alleged 40,000 people during his rule between 1982 and 1990. July 20 was the first day of his trial before the Extraordinary African Chambers, a special court he has repeatedly denounced as “illegitimate and illegal.” And almost as soon as it started, it stopped: Mr. Habré, and his lawyers, refused to participate, and on the next day the proceedings were suspended.

The Habré trial is the event of the year in the field of international criminal law. With tensions growing between the African Union and the International Criminal Court – which African states accuse of being biased against them because it prosecutes mostly crimes committed in Africa – the E.A.C. was being touted, at least by Senegal’s justice minister, as the advent of an “Africa that judges Africa.”

But on the first day of what may be the court’s only trial, Mr. Habré derided the E.A.C., or C.A.E. in French, as the “Comité administratif extraordinaire,” the Extraordinary Administrative Committee. He called the judges – two from Senegal, one from Burkina Faso – “simple functionaries tasked with carrying out a political mission.” As the hearing was about to begin, Mr. Habré stood up and shouted, “Down with imperialism! Down with traitors! Allahu Akbar!” A dozen of his partisans rose from their seats nearby and chanted: “Long live Chad!” “Long live Habré!” “Mr. President, we are with you!”

The Habré case suffers from the same types of deficiencies that have plagued other international criminal trials. Idriss Déby, the president of Chad since 1990, whose government covers more than one-third of the E.A.C.’s budget, was Mr. Habré’s army commander in chief. But he will not be judged in Dakar. Neither will France nor the United States, even though both countries – which are also funding this trial – supported Mr. Habré during his rule. And so naturally, Mr. Habré’s defense strategy rests on denouncing the court for being biased and partial, and calling it a front for Western governments and nongovernmental organizations.

Other defendants in recent major trials for mass crimes have also been defiant. At the International Criminal Tribunal for the Former Yugoslavia, both Slobodan Milosevic and Vojislav Seselj dismissed their lawyers and claimed the right to defend themselves. Jean-Bosco Barayagwiza called his trial before the International Criminal Tribunal for Rwanda “a masquerade,” boycotted it and refused to meet his court-appointed lawyers. (After being sentenced to a long prison term for genocide, he did pick a new counsel for the appeal.) But even that Mr. Habré will not do. In the view of François Serres, one of Mr. Habré’s lawyers, responding to the charges in the indictment, even with outrage, or simply appearing in court would lend too much credibility to the proceedings.

The second day of the trial, last Tuesday, Mr. Habré was again hauled into the courtroom by force. This time he was immured in silence. The court appointed three new lawyers to defend him, and scheduled the next hearing for Sept. 7. This was in order to “defend the interests of justice,” both the chief prosecutor and one of the lawyers explained. But when court officials and lawyers invoke the interests of justice, it’s usually when they have run out of other arguments.

William Bourdon, a lawyer for the victims – who, under Senegal’s civil law system, may be parties to the trial – dismissed Mr. Habré’s defense as a strategy “of cowardice and desertion.” Jacqueline Moudeina, a Chadian lawyer for the victims who fought for more than 20 years to bring this case to court, said it was “preferable” that the court appoint lawyers to represent Mr. Habré, even though they might just be like “decoration.” But Reed Brody, counsel and spokesperson of Human Rights Watch, had said before the trial that such an assignment would be “something of a catastrophe.”

Mr. Habré’s refusal strategy stings because it turns the sacrosanct principles upheld by human rights defenders against them. Mr. Habré’s trial is inevitable, and its outcome seems preordained, yet it must appear to be exemplary. To proceed with it without Mr. Habré and his lawyers, as they demand, would perhaps be the best way to rob their strategy of its disruptive power. But it is a move the court cannot allow itself to make: Rules of criminal procedure require the presence of a lawyer for the accused.

In the courtroom on the second day, Clément Abaitoufa, one of the better-known victims of torture under Mr. Habré’s regime, was gloomy and stone-faced: “This is going to be difficult to manage, but we had to expect it.” Leaning on his cane, Souleymane Guengueng, another famous survivor, abandoned neither his customary serenity nor his bright smile. “We must be patient,” he said. “The court must assert its authority.”

When Mr. Habré was brought out of the courtroom, his supporters gathered around him and applauded. Without a word, he raised his skinny arms in the air and clenched his fists, and before disappearing behind a wall of hulking guards from the prison security unit, made the two-fingered V sign for victory.

Mavi Marmara Case Update: Prosecutor Files Notice of Appeal
Just Security
By Alex Whiting
July 29, 2015

Last week I argued here that the ICC Prosecutor should appeal or refuse to follow the Pre-Trial Chamber’s (PTC) majority order to reconsider her decision not to open a formal investigation into the Mavi Marmara incident. On Monday, the Prosecutor filed her notice of appeal, citing three grounds: (1) the PTC showed inadequate deference to the Prosecutor, who is best-situated to assess gravity of potential situations at the investigation-opening stage; (2) the PTC erred in its application of the gravity test, relying on evidence taken out of context and in isolation; and (3) the PTC failed to address certain, specific arguments and pieces of evidence put forth by the Prosecution.

The Prosecutor has thus signaled her intent to attack the core of the PTC’s approach, arguing that the PTC institutionally overstepped its role and in addition so diluted the gravity test as to render it almost meaningless. The notice of appeal also means that it is almost certain that the Prosecutor will never accede to opening an investigation into the Mavi Marmara incident. Even if the Appeals Chamber refuses to hear the appeal on jurisdictional grounds, or (and this is very hard to imagine) it hears the appeal and sides with the majority of the PTC, the Prosecutor still has the final word on whether to open an investigation, as I outlined in my post last week. Given the Prosecutor’s very strong rejection of the PTC’s reasoning in her notice of appeal, it is difficult to imagine the Prosecutor ever changing her mind.

Monday’s document is just the notice of appeal. The Prosecution will have 21 days from the date of the PTC decision to file its appeal and then Comoros and the victims will have 21 days to respond before the Appeals Chamber renders its decision.

Gone But Not Forgotten-The Ongoing Case of Jean Uwinkindi at the ICTR and MICT
Opinio Juris
By Oliver Windridge
July 29, 2015

A sometimes forgotten aspect of the International Criminal Tribunal for Rwanda’s work is the transfer of 10 of its 13 outstanding cases back to Rwanda and to France for domestic prosecution. To be precise, of the 13 outstanding cases, the ICTR have transferred two currently detained accused to France (Bucyibaruta and Munyeshyaka) and two to Rwanda (Uwinkindi and Munyagishari). The remaining nine accused remain at large, of which the ICTR transferred seven to Rwanda for domestic prosecution if and when they are arrested (Sikubwabo, Ryandikayo, Ntaganzwa, Ndimbati, Munyarugarama, Mpiranya, Kayishema), while the Bizimana and Kabuga cases remain at the ICTR, or rather the Mechanism for International Criminal Tribunals (MICT), the mechanism established to carry out functions, including trying outstanding cases, after the completion of the ICTR and ICTY mandates. But even if sometimes forgotten, transferred cases are likely to come back into the spotlight this year with MICT President Theodor Meron’s landmark 13 May 2015 decision to constitute a new referral chamber to examine whether Jean Uwinkindi, the first ICTR accused to be transferred to Rwanda, should remain in Rwanda for trial or be brought back under the auspices of the MICT for trial.

As background, in 2011 Uwinkindi became the first ICTR accused to be transferred to Rwanda for domestic prosecution under Rule 11 bis of the ICTR Rules of Procedure and Evidence. This transfer was a watershed for the ICTR, and in particular the ICTR Prosecutor, who had tried and failed on several previous occasions to transfer cases to Rwanda, all of which were subsequently tried at the ICTR ( See Munyakazi, Gatete, Kanyarukiga and Hategekimana).

Uwinkindi opposed the transfer mainly on fair trial concerns, however the Trial Chamber found that Rwanda had markedly improved its criminal justice system since denying previous applications for transfer mentioned above, and granted the Prosecution’s request to transfer, which was subsequently affirmed by the Appeals Chamber . In order to allay concerns over potential post-transfer issues, particularly over the availability and protection of witnesses, the transfer decision included a monthly monitoring system, designed to ensure any material violation of Uwinkindi’s fair trial rights in Rwanda would be brought to the attention of the ICTR President so that action, including possible revocation could be considered by the ICTR (and now MICT). The monitoring system also allowed the ICTR/MICT to examine any issues over future financial constraints including any failure by the Rwandan authorities to make counsel available or disburse funds. Therefore, since 2011 the ICTR/MICT has received monitoring reports on a monthly basis (all the reports can be accessed at the bottom of this page.). Importantly, in its 2011 referral decision the ICTR also granted Uwinkindi permanent standing to petition the ICTR/MICT.

On 16 September 2013, Uwinkindi filed a request for revocation of the 2011 referral decision, stating that the Ministry of Justice of Rwanda had failed to make the necessary funds available for his defence to allow his team to contact defence witnesses and hire defence staff and that his counsel had not been paid since February 2013. On 12 March 2014, MICT President Meron, sitting as a single judge, dismissed Uwinkindi’s request for revocation, finding that the submissions on various funding issues had been either rendered moot or were still the focus of ongoing negotiations and may be subject to further review within the Rwandan courts. President Meron did not however rule out the filing of further requests for revocation should the circumstances warrant.

In March 2015, the MICT monitor filed its March 2015 report, in which it stated, inter alia, that in a meeting between Uwinkindi and the monitor Uwinkindi requested the MICT President to recall his requests for transfer of the case from Rwanda “to another jurisdiction where ₣heğ could get a fair trial” (March Monitoring Report, paragraph 60). In the same meeting Uwinkindi expressed his displeasure with counsel assigned to him, expressing his desire to be represented by counsel of his choice, including Mr. Gatera Gashabana his former counsel and asserting lack of fair trial rights in Rwanda ( I recommend reading the whole report, it makes for very interesting reading).

This led President Meron, under the auspices of Uwinkindi’s ongoing standing to petition the MICT, and noting that he was not represented by counsel, to consider Uwinkindi’s claims in the March report as renewed application for revocation of his transfer. This decision to consider Uwinkindi’s request as a an application to revoke can be seen as the MICT taking a wide and pragmatic approach to Uwinkindi’s claims. The result of which is that President Meron has ordered the creation of a new referral panel to consider Uwinkindi’s application to revoke his transfer and bring the case back to the MICT, albeit somewhat strangely describing the referral panel as a “Trial Chamber” despite not being a trial and the 2011 chamber being referred to as “referral chamber”. Nevertheless, the referral panel/trial chamber will be composed of MICT Judges Joensen, also the ICTR President, presiding alongside Judge Sekule and Judge Arrey. What is the difference between this application and the previous applications which were dismissed by President Meron? Although not explicitly examined in the 13 May 2015 decision, it may well be a question of time; over a year has passed since Uwinkindi’s last request for revocation and, according to Uwinkindi, the same issues of mounting a proper defence continue to bedevil his case, something which at some point the MICT must at the very least look into.

Interestingly, the 13 May 2015 decision considers the March 2015 report the trigger to create the referral panel, and does not mention Uwinkindi’s 28 December 2014 revocation application that was supplemented by further submissions on 16 January 2015, although a subsequent 5 June 2015 decision by President Meron ordered Uwinkindi’s latest request for revocation to be referred to the referral panel also.

Since the creation of the referral panel matters have progressed swiftly with Judge Joensen assigning himself as pre-trial judge (again using the confusing term “trial”) on 21 May 2015 and on 22 May 2015 setting out a time line for the submission of briefs, response and replies that will be triggered once Uwinkindi is appointed counsel. On 22 June 2015 the MICT Registry appointed Uwinkindi’s former counsel Mr. Gashabana as counsel in this matter meaning Uwinkindi must file his brief in support of the revocation request within 30 days of assignment of counsel, and the MICT OTP and Rwanda must file their responses within 30 days of Uwinkindi’s brief, and Uwinkindi must file his reply within 10 days of the responses, meaning that, roughly, the case should be fully briefed by the end of August 2015.

What should be made of this development? I would argue that the 13 May 2015 Decision to form a referral chamber should be seen as a landmark decision for the ICTR/MICT. Not only is it the first referral panel created to consider a transferred persons request at the ICTR/MICT, the decision also demonstrates a welcome degree of pragmatism by treating Uwinkindi’s latest remarks to the MICT monitor as an application to revoke, although this could be seen as inevitable given that in the 15 months or so since his last application was dismissed very little has improved according to Uwinkindi. Also, at a very basic level the very fact that the matter is before the MICT should be welcomed. Some feared that with the referral in 2011 we would not see or hear of Uwinkindi again; his case disappearing into the Rwandan justice system. But we see the ICTR and now MICT living up to its promises by sending monitors and regularly considering Uwinkindi’s requests for revocation of the transfer, and on this occasion ordering assessment by a panel of judges.

It is also important to recognise that although still very much a lever that has to be pulled by Uwinkindi, the ICTR’s decision to grant Uwinkindi permanent standing to petition the ICTR/MICT has also worked, obviating the need for subsequent chambers to examine jurisdictional issues and removing the chance for parties to oppose revocation applications, although how this permanent standing is viewed in Rwanda I do not know. This framework of ongoing standing again indicates a level of continued commitment and involvement by the ICTR and demonstrates a potential middle ground between retaining a case at an international tribunal and an international tribunal washing it hands completely of a case.

Whilst we do not know what will happen, what seems clear enough is that should the Trial Chamber uphold the request Uwinkindi’s case would come back before the MICT for trial. If the Trial Chamber were to reject the request Uwinkindi’s case would continue to be tried in Rwanda. Either way the decision will presumably be subject to appeal, indicating that a final decision is unlikely very quickly.

What impact will this decision have on other cases? For Bernard Munyagishari the other ICTR accused currently facing trial in Rwanda, who has also petitioned the ICTR/MICT for revocation of his transfer, it does provide a possible future route for consideration although it should be noted that so far his applications have been denied by President Meron. (The cases transferred to France, Munyeshyaka and Bucyibaruta, are not subject to any requests for revocation at present.)

But in addition to the impact of Uwinkindi’s case on Munyagishari and the ICTR/MICT, does this transfer framework have future application elsewhere? The answer is likely dependent on the nature of the tribunal. Arguably the two main elements driving the transfer of ICTR cases are the maturation of the Rwandan criminal justice system to a point where it could take on domestic prosecution of ICTR accused, and the expiration of the ICTR’s mandate. Similar factors are likely to occur for future ad-hoc tribunals with limited mandates and possibly a large number of accused. For permanent tribunals however the ICTR transfer framework’s application is less obvious. Transfers at the ICTR only gained traction some 15 years into its life and towards the end of its mandate. Given the permanency of the ICC and the hope that cases can be handled quicker, the need to transfer cases due to the maturation of the domestic criminal justice system and closure of the tribunal may not be applicable to the ICC (although could the ICC impose limited mandates per situation?). Furthermore, where the approach of the ICC Prosecutor has often been to indict only those at the very top, again the likelihood of a number of accused eligible for transfer some years on seems less likely. So with an open ended mandate and smaller number of accused per the ICC is realistically unlikely to follow this transfer framework. For example, with recent discussion on a new Special Criminal Court for Central African Republic (SCCAR), could the ICC transfer cases to the SCCAR but use the ICTR transfer framework to retain jurisdiction to hear applications for revocation from accused? Unlikely, as applying the ICTR transfer framework, this would only occur for accused indicted before the ICC who are then transferred- requiring significant ICC resources to investigate and issue indictments.

This brings me to my final point. Irrespective of the nature of the tribunal, the ICTR transfer framework is very much a Prosecution-led approach and requires significant work from the Prosecutor to investigate, issue indictments and prepare cases that could be tried at the international level. Therefore practically, is it likely future Prosecutors will be willing to do the amount of work done by the ICTR Prosecutor before then pushing for transfer? Where resources are limited it seems unrealistic to expect Prosecutors at international tribunals to take cases all the way to the door of the court, only then to transfer them to domestic courts.

In conclusion, it appears the transfer framework has succeeded in retaining a link between Uwinkindi’s domestic trial and the ICTR/MICT through its monthly reports and the permanent standing granted to Uwinkindi allowing the ICTR/MICT to consider requests at any time. In short, the transfer framework seems to have worked irrespective of what the referral chamber will decide, although it is difficult to describe the transfer framework as an outright victory given that Uwinkindi’s allegations relate to the alleged failure of the Rwandan system to uphold his fair trial rights, a transfer which the ICTR itself sanctioned. As to future application, ad-hoc international tribunals with set mandates and a large number of accused could apply a similar framework but for permanent tribunals such as the ICC, unless it sets strict mandates to its situations, with an open ended mandate and smaller number of accused per situation the need to transfer cases as done by the ICTR is unlikely to arise. In any event, whether this transfer framework remains a ICTR/MICT model or finds a broader use in the future, Uwinkindi’s case once again demonstrates the fine balance between prosecutions at international tribunals and domestic prosecution of international crimes.

Justice, But Only For Some; The Trial of Hissène Habré
Justice in Conflict
By Kelly-Jo Bluen
July 30, 2015

The trial of former Chadian President Hissène Habré in Senegal last week reflects many of the tensions afflicting international justice. Habré, who is charged with crimes against humanity, torture, and war crimes, relating to the death of an alleged 40,000 people between 1982 and 1990, denounced the court as a colonial project before being forcibly removed from the courtroom. The trial was subsequently postponed until 7 September, for Habré’s defence counsel to review court files.

The Dakar-based Court where Habré is being prosecuted is the Extraordinary African Chambers (EAC), an African Union mandated chamber with jurisdiction to prosecute “the person or persons most responsible for crimes and serious violations of international law” in Chad between 7 June 1982 and 1 December 1990.

This trial presents a critical juncture to reflect on two pertinent issues, both for the case and for the international justice architecture. First, in light of the well-documented role of Western powers in the Chadian conflict’s Cold War dimensions, and those that preceeded them during French colonial rule, the trial presents an opportunity to consider more expansively who “the persons most responsible” for gross atrocities might be in Chad. Second, and related to the divorce between complicity and accountability in the face of politics, the Habré case is revealing in terms of how notions of accountability are framed within the existing lexicon of international criminal justice.

Structural and Direct: Lines and webs of complicity

Unequivocally, the prospect of accountability for Habré is extremely important. A 2010 Human Rights Data Analysis group report that analysed evidence from the Chadian Documentation and Security Directorate (DDS) details abuse, torture, summary executions, and murder, as well as Habré’s knowledge of the abuse.

In addition to Habré, however, there exists a complex web of complicity at both direct and structural levels. While dominant narratives of international justice operate in quasi-biblical binaries of good and evil, the reality of the Chadian case is far more complex. When Habré came to power in 1982, it was, in large part, as a result of a CIA covert operation. The newly-elected US President, Ronald Reagan, was enmeshed in Cold War paranoia about Libyan leader Muammar Gaddafi and was jittery about Gaddafi’s troops’ advance into Chad. Once Gaddafi announced the prospects of a Libya-Chad merger Reagan became increasingly threatened and convinced of the importance of Gaddafi’s defeat. A 1981 CIA report on Libya elucidated the extent of US obsessive Gaddafi apprehension, focusing on the threat nexus of international terror and Soviet expansionism. It specifically detailed the vulnerability of Gaddafi’s “over-extension” in Chad and detailed a subtle approach as “an open Western challenge could rebound to Qaddafi’s advantage transforming him from outcast to Muslim martyr.”

With the explicit aim “to bloody Qaddafi’s nose” and “to increase the flow of pine boxes back to Libya,” Reagan and the CIA enlisted Habré a former Defense Minister who had been based on the Chad-Sudan border since his thwarted attempt on the Presidency in 1980. Habré’s ascent to presidency was seen as critical to the anti-Gaddafi campaign. President Reagan subsequently signed a formal intelligence order releasing several million dollars in covert support to Habré and, by June 1982, the future Chadian leader and 2,000 of his troops, armed and funded by the US, had reached N’Djamena and Habré assumed the presidency in Chad.

In addition to covert financing, the US provided an estimated $182 million in military and economic assistance during Habré’s Presidency. It provided machine guns, jeeps, missiles, surveillance aircraft, among other military hardware. A document from the DDS obtained by Human Rights Watch details training in the US in 1985 of Chadian security agents. Two of those who underwent training were found, during the Chadian Truth Commission to be Chad’s “most feared torturers”.

While the US covert operation was instrumental in cementing and maintaining Habré’s presidency, Chad was a Cold War geopolitical quagmire. Ariel Sharon, then Prime Minister of Israel agreed to provide aircraft weapons, advisors and, together with President of Zaire (present day Democratic Republic of the Congo), Mobutu Sese Seko, provided training for Habré’s troops in concert with the Zairian military.

France’s complicity is altogether more expansive and structural. France, which (officially) colonised Chad until 1960 employed a policy characterised by deliberative disunity between and within the predominantly Muslim north and predominantly Christian South. French colonial officers exploited differences to their advantage, instrumentalising cleavages for purposes of maintaining power and resources. Indeed, the very tensions that fomented decades of civil war and oppression in Chad, so readily dismissed by many Western analysts as “tribal” were entrenched by French colonialism. In the course of Habré’s presidency, keen to maintain its neocolonial hold on Chad, and blighted by the increasingly prominent role of the US in Chad, France supplied 3,000 troops, logistical support, equipment, and air power for Habré. During the course of the Presidency of François Mitterand, the French campaign in Chad from 1983 to 1984 was France’s largest military intervention since Algeria.

In addition to the atrocities committed by US and French forces in the course of the Chadian-Libyan war, western powers were aware and not deterred by the executions and torture being committed by Habré’s security forces in Chad, which in many cases using weaponry, finance, and training provided through by their Cold War allies. An Amnesty International Report as early as 1983 detailed the abuses taking place in Chad. In 2000, a former senior U.S. official remarked, “it is fair to say we…chose to turn a blind eye.”Perhaps the clearest indication of this approach was in June 1987, when President Habré was invited to the White House where President Reagan remarked, “today President Habre emphasized that his government is committed to building a better life for the Chadian people…I assured him that we will continue to do our best…to help reach President Habre’s laudatory goals”.

Implications for (International) Justice

International complicity in Chadian atrocities is hardly a secret. Human rights groups, analysts, historians and even the most conservative, status quo Western media outlets refer to Habré as a “western-backed dictator” and many acknowledge the specificites of Cold War dynamics. What is perplexing, but unsurprising then, is the disjuncture between this acknowledgement, and the determination of the appropriate course of action. Western complicity is treated as an unfortunate throwaway eventuality, stripped of its egregious role in the conflict. It is particularly telling that both the US and France are EAC donors, donating $1 million and €300,000 respectively towards the Chambers’ budget.

Temporally, the court has jurisdiction to prosecute international crimes committed from 1982 to 1990. While this precludes accountability for the destruction and systemic preconditions to conflict created by French colonialism, it does include within its timeframe Western responsibility during the Cold War. The Court, however, will try only Hissène Habré as delineated by the prosecution. On the implications of international backing for the case, EAC Prosecutor Mbacké Fall notes, “neither France nor the US felt concerned by the Habré regime’s massive human rights violations. But, having said that, I don’t think it will have an incidence on Habré’s guilt.” There is no scope, at this point, for criminal justice or other forms of accountability for Habré’s Western allies.

The Habré case, perhaps most poignantly, illustrates the politics of a singular focus on individualised criminal accountability and the problematics of negating internationalisation. Without diminishing the importance of holding Habré accountable, it should be noted that he is not singularly responsible. While the precepts of individualised accountability for gross crimes are important, in individualising, and particularly in individualising within the framework of contrived temporal jurisdictional limitations, two critical factors are excluded. First, we exclude accountability for historical complicity in proliferating structural conditions which cause violence because they precede the proscribed temporal mandate. Second, the language around individualised accountability, derived from a specific set of liberal ideas preclude accountability for external actors, in localising that which is often international and designating responsibility and command in ways that exclude external actors.

There is thus is a disjuncture between much of the vocabulary surrounding international criminal justice and the realities it seeks to address. Many conflicts, and specifically those in a Cold War context of protracted neo-colonial relationships are internationalised. The selectively-employed concept of “sovereignty” is flaccid where external advisors, funders, and patrons have the power, through capacity support, technical training, weapons, and money, to directly influence politics. The lenses offer us “civil war” despite international sponsorship and “state terrorism” despite transnational frameworks.

In so doing, they allow for the continued entrenchment of a dichotomy which posits a well-behaved West in opposition to a barbaric Africa. In this context, and specifically in Chad, where there is such an apparent a link between the atrocities committed and the US and French governments, prosecuting domestic actors in isolation without assessing international ones cannot purport to do justice in a fashion that is truly international. Again, this is not to suggest that Habré should not be held accountable; he should. But the focus on Habré to the exclusion of other powerful actors is insufficient and unjust in the context of layered and internationalised complicity for crimes.

Tears in Our Eyes: Third State Obligations in International Law
EJIL: Talk
By Başak Çali
July 30, 2015

In early January 2015 the Republic of South Korea sold 1.9 million tear gas canisters to Turkey. With this sale came much campaigning against it. Amnesty International’s “Korea, do not sell us tear gas” campaign received over 50,000 signatures of support. The goal of this campaign was to highlight how the Turkish police force has been and continues to be to this day reckless and excessive in its use of tear gas on certain domestic demonstrations. Reckless and excessive use which, according to data collected by the Turkey Human Rights Joint Platform, led to the death of 19 Turkish citizens between 2006 and 2013 – including four children.

The sale of such large quantities of tear gas to a country that has a proven track record of using it frequently and recklessly raises important questions of international law. It raises questions in particular with regard to the responsibility of third states for internationally wrongful acts and the standard of proof required to establish such responsibility. Put simply, did South Korea commit an internationally wrongful act when it sold tear gas to Turkey?

Tear gas and international law

The name tear gas encompasses a group of substances that irritate mucous membranes and cause stinging sensations and tears. The effect of tear gas is normally considered temporary for a healthy adult so long as they are able to breathe fresh air shortly after exposure. Fatalities have been caused when tear gas has been used in closed spaces, on unhealthy adults or the elderly, or when canisters have been fired directly at protesters.

The use of tear gas is prohibited in wartime both by the 1925 Gas Protocol and the 1993 Chemical Weapons Convention. The 1993 Convention, however, explicitly includes a clause in Article 1(5), inserted at the insistence of the United States, stating that “Each State Party undertakes not to use riot control agents as a method of warfare.” Article II(7) of the 1993 Convention further defines a “Riot Control Agent” as “Any chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure.” This clause, by implication, signals a regime of permissibility for riot control agents – including tear gas – during peacetime.

Peacetime riot control, including the use of tear gas as a riot control agent, is not prohibited under any body of international law. Having said this, the effects of tear gas on the enjoyment of individual rights fall within the scope of international human rights law (IHRL) ((Cf. Maslen ed., Weapons under International Human Rights Law, CUP, 2014).

The use of tear gas can have rights-undermining consequences on the protection of the right to life (in particular, as I note above, if used in closed spaces or if tear gas is fired at closed range directly at protesters), the absolute prohibition of torture and ill treatment, freedom of assembly and the right to health. It also raises unique concerns for specially protected groups, such as children, the elderly, disabled, detainees and prisoners. In addition, if used as part of a widespread or systematic policy against a civilian population, the use of tear gas can come under the scope of crimes against humanity.

Tear gas before human rights bodies and courts

Committees of the ICCPR, the CAT, the CRC and the ICESCR have all raised concerns about the effects of use of tear gas on the enjoyment of rights protected by their treaties (See for example, Concluding Observations of the CCPR to Ecuador, (CCPR/C/ECU/CO/5, 2009); Concluding Observations of the CRC to Panama (CRC/C/PAN/CO/3-4, 2011). The United Nations Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association has raised specific concerns about tear gas use, pointing to the fact that “[w]ith regard to the use of tear gas, the Special Rapporteur recalls that gas does not discriminate between demonstrators and non-demonstrators, healthy people and people with health conditions.” He also warns against “any modification of the chemical composition of the gas for the sole purpose of inflicting severe pain on protestors and, indirectly, bystanders.” (A/HRC/20/27, para. 35).

The use of tear gas, in particular by Turkey, has been subject to repetitive litigation before the European Court of Human Rights (ECtHR). In a series of cases under the Ataman Group, the ECtHR found that the use of tear gas against peaceful protesters, or persons deprived of their liberty constitutes inhuman and degrading treatment. The Committee on the Prevention of Torture of the Council of Europe issued guidelines for tear gas use and indicated that it must be prohibited in closed spaces within the Council of Europe member states.

Tear gas exports and third state responsibility

Assessing third state responsibility for tear gas use requires us to turn to the states that import tear gas. To assess the responsibility of tear gas importers requires answering two levels of questions. First, what triggers third state responsibility in international law? Second, what standard of proof is required to engage third state responsibility, such as that of South Korea, in cases of tear gas export?

The first question takes us to Article 16 of the Draft Articles on State Responsibility. This provides that:

‘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’

Let us address these conditions in reverse order.

The internationally wrongful act

The internationally wrongful act in the case of tear gas use is the use of tear gas by the exporting states in ways that undermine their IHRL obligations to respect and ensure human rights. IHRL bodies have all identified that punitive, excessive, or disproportionate use of tear gas is a violation of IHRL. In our example, South Korea is a state party to the ICCPR, the CAT as well as the ICESCR and the CRC, so is Turkey. In other words, punitive, excessive or disproportionate use of tear gas constitutes an international wrongful act both for Turkey and South Korea.

Knowledge of the circumstances of the wrongful act

This is where things get tricky. What standard of proof satisfies the knowledge of an internationally wrongful act? The International Law Commission sets the bar high in its commentaries. It requires that:

The relevant State organ or agency providing aid or assistance must be aware of the circumstances making the conduct of the assisted State internationally wrongful and;

The aid or assistance must be given with a view to facilitating the commission of that act.

In other words, the fact that South Korea has knowledge of any non-IHRL compliant use of tear gas is not sufficient to trigger its responsibility under Article 16. South Korea must intentionally seek to contribute to the non-IHRL compliant use itself. In our specific case, it would not be possible to prove that South Korea was intentionally seeking to undermine the prohibition of torture or freedom of assembly in Turkey.

Does IHRL support a less stringent test?

Article 16 in its current interpretive state leaves us with a lot of Korean tear gas to be used in non-IHRL compliant ways in Turkey. Is this where we have to leave this issue?

The UN recommendations and the emerging state practice may point to an alternative and a less stringent test. In 2005, the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment pointed to the preventative duties of third states under IHRL. He asked exporting states to consider the risks associated with tear gas use. Specifically, he recommended exporting states must ‘prohibit the transfer of certain forms of equipment whose use in practice has substantially revealed a substantial risk of abuse and unwarranted injury’ (UN Doc E CN4/2005/62, page 11). The EC Regulation 1236/2005 of June 2005 legalized this view with respect to EU export policy. Significantly, it instructed EU member states to take into account available international court judgments and UN recommendations when assessing such risk.

The major tear gas exporting states (the US, Brazil, South Korea, and the UK) too have in place varying schemes of risk assessment for the export of teargas directly by states themselves or by private companies domiciled in these states. In the US, there is a multi-level agency vetting of foreign military sales prior to sale and a possibility to temporarily halt sales. In the UK, there is ex-post review that investigates whether there is a pattern of abuse in the importing state. In Brazil, the government committed to a review with regard to its tear gas export to Bahrain. Perhaps more significantly, South Korea has a review policy. When explaining the decision to halt the sale of tear gas to Bahrain, a South Korean official said that “I want to provide assurance and confirmation that [officials from KNPA, DAPA, MoFA, the Ministry of Industry and Trade, and the Ministry of Defence] are almost fully in agreement over forbidding the export of tear gas for human rights violations.”

Back to our case

What then are we to make of Turkey’s latest shopping spree? Here, standard caveats must apply. The recommendation of the Special Rapporteur on Torture is just that: a recommendation. It has no independent custom generating qualities. EU Regulation is a clear divergence away from Article 16 of the ILC, but cannot in and of itself generate custom. The practice of tear gas exporting states, however, does require more attention. Their policies, albeit not uniform, do point to the fact that the state practice of the most relevant group does not support the ‘intent to facilitate’ test of the ILC. Rather, domestic legal and governmental practice (key indicators of custom emergence) at the very least centre on the substantial risk of abuse or serious effect on rights enjoyment tests.

Whether this is sufficient to crystallize custom, and in what precision, however, does demand a more careful study. If intentionality is not a necessary condition, then what is? The future holds more tears in our eyes in Turkey and beyond. One thing we can see clearly through its haze, however, is the need to rethink the ILC Commentary paradigm for third state responsibility for specific types of international wrongful acts in the light of emerging custom that does not lend full support to it.

The Africa-ICC Relationship – More and Less than Meets the Eye (Part 3)
Justice in Conflict
By Mark Kersten
August 3, 2015

Over the last two weeks, I have attempted to critically examine and assess the relationship between African states and the ICC. In the first post, I critiqued popular assumptions about the relationship, namely that it is viewed as either the result of an unfair, neo-colonial ICC targeting an unwitting continent or of a misunderstood institution that is, in reality, representing the interests of Africans as a ‘Court for Africa’. Attempting to understand the politics and complexity of the relationship between African states and the ICC, such perspectives do more to obfuscate than illuminate.

In the second installment, I explored three cases: the surrender of senior Lord’s Resistance Army commander Dominic Ongwen to the ICC, the visit of Sudanese President Omar al-Bashir to South Africa, and the prosecution of heads of states. None of these crucial developments and issues can feasibly be explained by the dominant understanding of the Africa-ICC relationship.

Of course, it would be wrong to assume that these posts have been able to do anything more than scratch the very surface of this dynamic relationship. To insist otherwise would be to fall prey to oversimplifying the relationship. But what I have tried to demonstrate is that the Africa-ICC relationship is far more complex, both legally and politically, than presented by the Court, African states, or most observers. We need to do better than seeing the relationship within harsh dichotomies or tropes. If nothing else, that is the result of this three-part series.

In this third and final post, I want to expand the way that we look and judge the Africa-ICC relationship. Specifically, I want to argue that we need to expand the parameters of our understanding by examining and assessing the relationship not between African states and the Court but by taking a broader view of the engagement of African communities with international criminal justice. But first, here are some more direct conclusions that flow from this series.

Open and Honest Discussion

All of the parties involved – African states, the Court, and observers of all stripes – can and should do more to foster a more open and honest discussion and debate regarding the concerns and criticisms that African communities have of the ICC. Proponents of the Court need to understand that the criticisms levied against the institution are either real or so widely perceived to be real that they need to be treated as such.

At the same time, the ICC itself desperately needs to improve the way it communicates its work, particularly to affected societies. The Court’s public relations strategies are ineffective and, as a direct result, the ICC’s role is too often misunderstood, feeding a fertile breeding ground for misperceptions. The Court has done very little to deal with the critical conceptions of its work head-on. Its social media strategy is essentially non-existent and its website does little more than the dead-end of the internet to advance an accessible understanding of the Court’s work. Being more transparent, improving its social media engagements, and instituting a innovative and smart public relations strategy could dramatically improve knowledge of the Court’s work in affected communities and around the world.

At the same time, there is a need, for all parties, to acknowledge that the ICC has not – and perhaps cannot – transcend international politics. A recent op-ed suggested that the Court’s focus on African states is a result of them being ‘low-hanging fruit’. Indeed, there is a debate to be had about whether the Court’s focus on African states is the result not of them being African but because they are weaker states where the Court has jurisdiction. Part of this is structural: many strong states (the United States, Russia, China, etc.) haven’t signed the Rome Treaty and are often outside the jurisdictional reach of the Court and yet are able to steer the Court’s focus via referrals from the United Nations Security Council. At the same time, there is at least some correlation between fragile states, political violence, and weak judiciaries – all of which are variables that help establish weak state ‘candidates’ for ICC and other forms of humanitarian intervention.

For scholars and interested observers, it behooves us to interrogate this nexus of power, political interest and justice. The primary focus of analysis of the ICC – both critical and not – has been on the Court’s impacts in those states and regions in which it has intervened. This has spawned an important debate on issues such as the relationship between conflict resolution and accountability as well as how to establish accurate measures of the ICC’s effects. These are no doubt important, but we should also go behind the veneer and explore the largely untapped relationship between diplomacy and the Court. Here, as I have argued elsewhere, we need a much richer understanding of the institutional interests that guide the ICC’s decision-making and, ultimately, its interventions. Gaining such an understanding may just be the key to truly discerning the Court’s selectivity both between situations and within them.

In general, the debate about the Africa-ICC relationship needs much more critical analysis. There is both more and less than meets the eye. But the way the relationship has been presented to date hinders, rather than helps, us see it.

Taking a Broader Look – More than Meets the Eye

Digging deeper into questions of power and diplomacy would enrich our understanding of the Africa-ICC relationship. But we also need to do a much better job understanding the broader relationship between African communities and international criminal justice. There needs to be a shift in focus away from myopically examining the ICC-Africa relationship to the role and development of international criminal justice on the African continent. And here there is a tremendous wealth of projects that needs more sustained attention and scrutiny.

There are numerous ongoing proceedings against alleged perpetrators of war crimes and crimes against humanity. In addition to the ongoing proceedings against Hissein Habré in Senegal, there have been domestic trials of ICC indictees, including Saif al-Islam Gaddafi and Abdullah al-Senussi in Libya as well as former Ivorian first lady Simone Gbagbo. For a host of reasons, these trials, especially those of former Gaddafi regime officials, have been highly controversial and rightly criticized. It may be too soon to announce the onset of an era where we are witnessing an “Africa that judges Africa”, but it does seem evident that states are taking prosecutions for international crimes increasingly seriously and view such prosecutions as part of their national political interest.

In response to crises that instigated ICC interventions, governments in both Uganda and Kenya have created institutions within their judiciaries that are able to investigate and prosecute international crimes. Crucially, the International Crimes Division in Uganda and especially the International and Organised Crimes Division in Kenya, hold the promise of linking the prosecution of transnational organised crimes to international crimes, an almost completely unexplored terrain that desperately needs attention. Thus, while both institutions have severe limitations, the fact that the governments of Uganda and Kenya see that it is necessary to create bodies that are focused on prosecuting international crimes domestically is an important and novel development. Moreover, while the work of these institutions may be limited by direct or indirect political interference, over time, brave investigators and prosecutors may be able to have a major role and impact in meting out justice and accountability for atrocities.

For the last few years, there has been much discussion about the potential expansion of the African Court on Human and Peoples’ Rights to include international crimes. Serious questions need to be answered before that can happen, notably the ever-sticky issue of who will pay. Moreover, the endeavour would be virtually pointless if the court was prohibited from prosecuting any government officials and thus was relegated to being a court solely for rebels. Nevertheless, it is a welcome move that African states and groups are seriously discussing and debating a regional institution that would prosecute international crimes. If nothing else, it drives the continued discussion of African responsibility and ownership for justice and accountability forward.

There’s little doubt that African communities and leaders are demonstrating that the ICC is not the only game in town. When it comes to prosecuting mass atrocities on the continent, it is not ‘ICC or nothing’. Nor should it be. The Central African Republic has recently created a hybrid tribunal to investigate alleged war crimes and crimes against humanity committed by anti-Balaka and Séléka forces. While the Special Criminal Court is still more of an intellectual exercise and paper tiger than a functioning reality, if established and staffed, the hybrid tribunal would work in a complementary fashion with the ICC, ensuring that a broader section of perpetrators is held to account.

In addition to these projects and developments, it can’t be forgotten that hundreds, if not thousands, of civil society organizations across the African continent work tirelessly to promote awareness of human rights abuses, push for justice, and acknowledge the suffering of victims and survivors of atrocities. African communities have an embarrassment of riches when it comes to leadership on issues of justice and accountability.

All of these projects and developments have limitations and all face serious political obstacles. But they demonstrate that real and potential leadership on international criminal justice exists within African states. Moreover, looking at the ICC-Africa relationship through the broader lens of the development of international criminal justice on the continent may expose more useful avenues for understanding the relationship between the Court and African states.

From the outset of the Court’s creation, African states and communities have been indispensable to the work and functioning of the ICC. In recent years, however, the relationship has suffered. What is needed now is sustained and critical attention that appreciates the rich political and legal complexity of the relationship between the Court and African states, as well as the remarkable developments in international criminal justice on the continent.

The Reason Why the UK Lost the Serdar Mohammed Case
Just Security
By Jonathan Horowitz
August 3, 2015

The United Kingdom Court of Appeal handed down its judgment in Serdar Mohammed v. Ministry of Defense last Thursday. The decision, which assessed the lawfulness of the 110-day security detention of a suspected Taliban commander by UK forces in Afghanistan in 2010, sheds important light on how human rights law and international humanitarian law interact in the context of security detention in an extraterritorial non-international armed conflict.

The Court ruled that the United Kingdom had sufficient legal authority and grounds to hold Mohammed for the first 96 hours of his detention and, for those four days, the Court also ruled that the United Kingdom afforded him appropriate procedural guarantees. The same wasn’t true for the next 106 days of his captivity. The Court made this ruling on the basis of Article 5 (right to liberty and security) of the European Convention on Human Rights.

As to the substance of the decision, the Court had to determine the relationship between human rights law and international humanitarian law. Without reciting all the points covered, one of the more important parts of the decision was the Court’s reaction to the Secretary of State’s claim that Article 5 can be modified under the notion that international humanitarian law is lex specialis and therefore its rules should take primacy over human rights law. The Secretary of State based its claim on Hassan v. United Kingdom (ECtHR) but, as the Justices rightly noted, that case involved an international armed conflict (IAC) and addressed a legal matter (detention) that is covered by detailed rules of international humanitarian law. To determine if Hassan was, in fact, relevant, the Justices said they needed to determine if the international humanitarian law of non-international armed conflict (NIAC) similarly contained relevant detention rules.

This brings us to the heart of the case and as we’ll see in a moment, the Secretary of State’s reliance on Hassan falls flat . . . sort of.

Before determining the relationship between Article 5 and IHL in the context of a NAIC, the Court sought to determine what, if any, other legal authority may have allowed the United Kingdom to detain Mohammed in Afghanistan. The Court looked to the UN Security Council and Afghan domestic law. (The Court noted that it did not assess UK domestic law in this portion of the decision because the Secretary of State did not raise it.)

With respect to Afghan law, there was no legal authority that allowed detention beyond 72 hours. With respect to the UN Security Council, the Justices determined that the Council, through Resolution 1890, provided ISAF with an authority to detain and, in turn, ISAF decided to limit that detention authority to 96 hours, and only 96 hours. The United Kingdom, therefore, derived an authority to detain from the Council. (The Court similarly concluded that ISAF’s detention rules, and the United Kingdom’s own detention rules, set out sufficient grounds for detention.)

With the first 96 hours covered legally, the Justices then assessed whether international humanitarian law granted an authority and grounds for the United Kingdom to detain beyond 96 hours. Ultimately, their conclusion affirmed those of us (me included) who believe that international humanitarian law, which does not contain an explicit authority to detain in NIAC, does not contain an implied authority to detain in NIAC. The Justices were also not convinced that customary international law provided an authority for security detention in NIAC.

The Justices came to this conclusion after reviewing a wide range of legal arguments, literature, state practice, and opinio juris. The Court rejected the notion that an authority to detain under IHL exists in the absence of its express prohibition under IHL. It also rejected the argument that the IHL of NIAC contains an implicit authority to detain and, in particular, that an authority under IHL to use lethal force implies the less grave authority to detain. In support of its view, the Court noted that States purposefully refused to grant the authority to detain under IHL so to guard from giving that same authority to non-state armed groups; recognized that States clearly demonstrated their desire to retain certain sovereign authorities under international law, which include an ability to detain and maintain law and order on their own terms; and found it problematic that if an authority to detain could be implied in the IHL and NIAC, that body of rules contains no grounds or procedures for security detention.

Moreover, in so much as proponents for an implied detention authority rely on the Geneva Convention rules for POWs and internees (which apply to international armed conflict) to fill this gap, the Court labeled this approach “highly controversial” and said that there is a “certain artificiality” in basing the authority to detain in the IHL that applies to a non-international armed conflict while basing its scope and the safeguards on the IHL that applies in international armed conflict.

The Court then had to assess what procedural safeguards the United Kingdom needed to afford Mohammed and whether it did so sufficiently. The Court does this through an assessment of what is called “irreducible core procedural requirements”-requirements put forth by the Secretary of State (which are based heavily on IHL) but which the Court sees as being common to IHRL. These requirements were 1) humane treatment, 2) the entitlement of detainees to be informed promptly of the reasons for their detention in a language they understand, and 3) periodical review by an impartial and objective authority to ensure that if, prior to the cessation of hostilities, there ceased to be imperative reasons of security to detain a person, he or she should be released.

Oddly, having discounted Hassan, the Court nonetheless measured the United Kingdom’s actions largely against IHRL and IHL standards, perhaps as a way to play the Secretary of State at its own game of using IHL. But, in doing so, the Court quickly skimmed over the important legal question of whether a State must make a formal Article 15 derogation to implement a security detention regime that limits Article 5 rights and allows something other than a court to determine the lawfulness of a person’s detention. Instead, the Court jumped past this issue and determined that the periodic review was not impartial and objective; expressed “real doubt that it is authorised to determine ‘the lawfulness’ of continued detention;” and said there was no opportunity of the detainee to participate in the reviews of his detention.

The Justices conclude “even if Article 5 had to be modified to reflect the fact that this detention was in the course of a non-international armed conflict, the minimum procedural safeguards required by international law in such a conflict would not have been met.”

In addition to its substance, the context in which this decision arrived is important. Justice Lloyd Jones and Justice Beaston add fodder to the ongoing debate about the inappropriateness of extending the Convention’s jurisdiction to overseas military operations. For those unfamiliar, the gist of the European Court of Human Rights’ interpretation is that the Convention applies extraterritorially when a State has effective control over an area or when it has power and control over an individual, regardless of where that territory or individual is located.

The Justices say that various practical and legal difficulties arise from applying the Strasburg court’s interpretations on extraterritoriality and they even express “significant legal reservations” about the Strasburg court’s interpretations (interpretations which the UK Supreme Court has taken on board). While practical and legal difficulties exist, this is not a new challenge for law and it’s no reason to throw the baby (i.e., the European Convention) out with the bath water. For that reason it was appropriate, indeed required, that the Justices, be it somewhat begrudgingly, applied the Strasburg court’s views.

Before they did so, however, they pointed the Secretary of State to a legislative fix. Legislation, the Justices say, “might have taken the form of a bar of specified claims by foreign nationals or have provided for specific authority for HM [Her Majesty’s] armed forces to detain in operations overseas.” If the Secretary of State seriously considers proposing either of these legislative approaches, the second suggestion seems to sit best with the Convention and, in particular, its article on the right to an effective remedy.

The Right to a Remedy in Armed Conflict-International Humanitarian Law, Human Rights Law and the Principle of Systemic Integration
Opinio Juris
By Vito Todeschini
August 5, 2015

In 2013, the German Federal Constitutional Court and the Regional Court of Bonn issued their judgements in two cases ‒ Varvarin and Kunduz respectively ‒ concerning Germany’s participation in the NATO-led operations in Serbia/Kosovo and Afghanistan. These judgments confirm and exemplify a general trend in domestic case law, which denies that victims of violations of international humanitarian law (IHL) have a right to bring claims directly in the domestic courts of the allegedly responsible State (Gillard, pp. 37‒38). This finding is mainly based on the lack of an obligation on States under IHL to provide individuals with enforceable remedies against violations. Domestic courts, however, tend to overlook the complementary role that human rights law (HRL), the other legal framework governing armed conflicts, may play in this context.

This contribution explores this possibility, arguing that HRL may supplement IHL with regard to the right to a remedy. The analysis assumes the perspective that IHL and HRL are complementary legal frameworks. It further employs the principle of systemic integration, codified in Article 31(3)(c) VCLT, to interpret IHL in light of HRL. An alternative interpretation will be proposed, namely that victims of IHL violations should be allowed to bring claims in the allegedly responsible State’s courts on the basis of the right to a remedy under HRL.

The Right to a Remedy: HRL v. IHL

The right to a remedy is enshrined in several human rights treaties (inter alia, Articles 2(3) ICCPR; 13‒14 CAT; 13 ECHR; 25 ACHR; 7(1)(a) ACHPR), under which States Parties have an obligation to establish domestic remedies capable of finding and redressing human rights violations. The concept of remedy generally presents two dimensions: procedural and substantive. The procedural aspect regards the right to have access to a competent body, which may be judicial or administrative depending on the seriousness of the violation. The substantive dimension concerns the right to reparation, which includes restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition (Shelton, p. 7). Effectiveness is the distinctive element characterising a remedy. To be effective, a remedy must be accessible, enforceable, and provide redress if a violation is found (HRCtee GC31, paras. 15‒16). A final feature of remedies is their dependency on the previous infringement of another right.

The situation differs radically with regard to IHL. According to Articles 3 HC IV and 91 AP I, a State must provide compensation for the IHL violations it is responsible for. This rule is considered to be customary and applicable in both international and non-international armed conflicts. The drafting history of Article 3 HC IV shows that its objective is to provide victims of violations with the right to bring a claim directly against the responsible State (Kalshoven, pp. 830‒837). Yet, post-WWII domestic case law has generally departed from this original construction and interpreted such provision as conferring on States, not victims, the right to claim compensation (CIHL Study, pp. 544‒545; Zegveld, pp. 507‒512; Henn, pp. 617‒623). Additionally, there is no specific rule in IHL providing how a victim can enforce the right to reparation. It can be concluded that, at best, victims of IHL violations have a substantial right to reparation but not a procedural right to a remedy. In this respect, the question is whether HRL, which also applies in armed conflicts, may provide individuals with a procedural remedy for unlawful harm suffered in war time.

Systemic integration between IHL and HRL

The relationship between IHL and HRL may be considered from two perspectives: competition and complementarity. Generally, whenever two rules belonging to the different regimes are both applicable and in competition, human rights treaties are interpreted taking into account IHL rules (ICJ Nuclear Weapons, para. 25; HRCtee GC31, para. 11). For instance, the human rights to life and personal liberty in armed conflicts may be modified in light of IHL rules on targeting and internment (ICJ Nuclear Weapons, para. 25; ECtHR Hassan, paras. 102‒106). On the other hand, IHL and HRL rules are not always in competition. Despite being designed to pursue very different objectives ‒ conduct of warfare (IHL) and protection of individuals and groups (HRL) ‒ these bodies of law are also complementary and mutually reinforcing. They share certain common purposes, such as ensuring humane treatment of individuals at any time (HRCtee GC31, para. 11; IAComHR Abella, paras. 158‒160; Hampson and Salama, paras. 6‒8).

One aspect of the complementarity between IHL and HRL is that the provisions of one of these bodies of law may fill the gaps present in the other; for instance, as it is argued here, with respect to the right to a remedy. This operation is made possible by the principle of systemic integration codified in Article 31 VCLT, which provides that in the interpretation of an international norm “[t]here shall be taken into account, together with the context: [… ] (c) any relevant rules of international law applicable in the relations between the parties”. Systemic integration is a mandatory part of the interpretive process which demands that a rule of international law be construed taking into account all other international norms, deriving from any source, that are applicable in and relevant to a certain situation (ILC, paras. 413 ff.). The ICJ and human rights treaty bodies have, explicitly or implicitly, resorted to the principle of systemic integration when considering the concurrent application of IHL and HRL (d’Aspremont and Tranchez, pp. 238‒241). Since it allows to interpret one body of law in light of the other, the present analysis employs systemic integration as a legal-theoretical basis to provide remedies under HRL for violations of IHL.

Remedying violations in armed conflicts

In 2006, the German Federal Supreme Court (FSC) held in the Varvarin case that Articles 3 HC IV and 91 AP I do not grant individuals a right to claim reparation for IHL violations directly against a State, and that consequently victims must file any claims via their own government (paras. 10‒14). Although recognising the progressive acknowledgement of the international subjectivity of individuals that has occurred over time, the FSC denied that HRL had modified international law so as to grant individuals a general procedural right to bring claims for IHL violations in a foreign State’s domestic courts (paras. 7‒9, 14‒15). This interpretation has been confirmed in the aforementioned 2013 judgments by the German Federal Constitutional Court in the same case, and the Regional Court of Bonn in the Kunduz case.

It is submitted here that, while considering HRL as a relevant legal framework, the FSC failed to apply the principle of systemic integration in a satisfactory manner. The Court did not refer to the obligations to provided remedies contained in the treaties which Germany is party to, such as the ECHR or the ICCPR. A reasonable application of the principle would have at least required: a) taking into account the provisions on the right to a remedy included in the human rights treaties binding on Germany as well as relative treaty bodies’ jurisprudence; and b) considering whether these provisions have a bearing on the claims regarding IHL violations. Given that under IHL victims are entitled to reparation but have no procedural right to enforce it, it seems sensible for a domestic court to take into account the relevant provisions of HRL which oblige States to provide effective remedies against violations.

In this writer’s opinion, by resorting to the principle of systemic integration the FSC could have argued that the lack of an enforceable right to a remedy under IHL may be read in light of the obligation of States to provide an effective remedy under HRL. Accordingly, the Court could have filled such a gap by deciding that a victim of an IHL violation is entitled to bring a claim against the allegedly responsible State under the same procedures provided for to victims of human rights violations. In this perspective, whereas the breach of the norm would regard a substantive rule of IHL ‒ e.g., the prohibition to kill civilians ‒ the remedy, and therefore the enforcement of the right to reparation, would be exercised as provided for in HRL ‒ e.g., Article 2(3) ICCPR.

The principle of systemic integration is a mandatory part of the interpretive process. Its application to the relationship between IHL and HRL has marked the jurisprudence of several international bodies. This principle requires interpreting one body of law taking account of the other; hence, IHL may be read in light of HRL. Far from being a stretch of existing norms ‒ the reasoning draws on lex lata and not lex ferenda ‒ systemic integration may contribute to fill a major gap in IHL and give substance to the idea that IHL and HRL are, in certain respect, complementary. Besides, and most importantly, victims of IHL violations may be provided with a procedural remedy to enforce directly in domestic courts their right to reparation.