War Crimes Prosecution Watch, Vol. 6, Issue 3

War Crimes Prosecution Watch, Vol. 6, Issue 3

Compiled by the Public International Law and Policy Group and the Fred K. Cox Center of Case Western Reserve School of Law

INTERNATIONAL CRIMINAL COURT

Central African Republic & Uganda

Democratic Republic of the Congo

Kenya

Libya

AFRICA

International Criminal Tribunal for Rwanda

EUROPE

European Court of Human Rights

Court of Bosnia & Herzegovina, War Crimes Chamber

International Criminal Tribunal for the Former Yugoslavia

Domestic Prosecutions In The Former Yugoslavia

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War Crimes Prosecution Watch is a bi-weekly e-newsletter that compiles official documents and articles from major news sources detailing and analyzing salient issues pertaining to the investigation and prosecution of war crimes throughout the world. For more information about War Crimes Prosecution Watch, please contact warcrimeswatch@pilpg.org.

The Courage To Admit A Mistake

By Jennifer Trahan

New York, N.Y.—Richard Goldstone, chairman of the Goldstone Commission that investigated crimes committed in Gaza during 2008-09 recently made a courageous and no doubt difficult decision—to recant part of the so-called Goldstone Commission report.  It is important to understand the implications of this new development—which does not completely exonerate Israel forces, and does not at all exonerate crimes committed by Hamas.

Goldstone was originally offered a mandate by the U.N. Human Rights Council to only investigate Israeli crimes committed during the Gaza incursion.  Goldstone, however, appropriately insisted on investigating crimes committed by both sides.  This he and other members of the Commission did.  Yet, Israel—not persuaded of the good faith of the Council’s inquiry (as suggested by the one-sided original mandate)—chose not to cooperate with the commission.  This lead Goldstone and other team members to conduct essentially a battle-damage assessment where they examined targets struck by Israeli forces in Gaza, targeting by Hamas and interviewed persons in Gaza and elsewhere, but were unable to obtain information as to Israeli targeting decisions.

The problem with such a damage assessment is that when civilians are killed or civilian infrastructure hit, this does not necessarily mean a war crime was committed—because the war crime of intentionally targeting civilians and the war crimes of intentionally targeting civilian objects both require a finding of intent.  Thus, for example, when a wedding party was hit in Afghanistan, the public did not assume that U.S. or coalition forces intended to target the wedding party.  Similarly, when civilians or civilian objects were hit in Gaza, one cannot necessarily know whether the war crime of intentionally targeting civilians or civilian objects was committed, absent information about the intended target.  The one instance where Israeli forces admit intentionally targeting houses for destruction provides a rare admission of such intent.  But, as to other incidents, the Goldstone Commission was missing a key part of the puzzle due to Israel’s decision not to talk to the commission.

Admittedly, the Goldstone Commission’s findings that so many civilian structures were hit by Israeli forces tends to suggest that some, or even many, of the incidents could amount to war crimes.  But without knowing more, one cannot really be definitive as to which ones were and which ones weren’t.  For example, if Israeli forces perceived there to be a rocket launcher placed on a civilian target or mistakenly believed someone to be carrying a rocket launcher, that could warrant taking the strike (assuming proportionate use of force); if the information turns out to have been false no war crimes was committed, because intent was absent.  The Commission had an extremely difficult task, and, in retrospect, should not have been as definitive as it was as to its conclusions that both war crimes and crimes against humanity were committed, given the lack of full information available to them.

What is important to remember, however, is that Goldstone has only recanted part of the report:  the accusation that Israeli forces intentionally targeted civilians.  There is much else in the report that covers destruction of civilian objects and questions the use of certain weapons in a densely populated environment.  A report by a New York State Judge Mary McGowan Davis apparently finds that Israel has opened a number of investigations into the conduct of its forces, but as of yet only a few have been diligently concluded.  There are also reports that Israel forces have re-examined their conduct and modified some of their procedures.  Hamas, on the other hand, responsible for using rockets that were never directed at any particular military target (and thus an indiscriminate weapon), is not known to have conducted any comparable investigations, and continues to use such weapons.  Here, actually, one can be more definitive that this constitutes a war crime, because it is impermissible to use a weapon indiscriminately.

We do not know exactly what information Richard Goldstone received that caused him to recant his position, but no doubt it was not a decision taken lightly.  It is puzzling that he has received no support from his co-commissioners.  What is needed now is to ensure that the remainder of the accusations made in the report and the demand for diligent follow-up investigations and prosecutions are seen to fruition—on both sides.

Jennifer Trahan is the Assistant Clinical Professor of Global Affairs, N.Y.U.  Professor Trahan is also the author of two books entitled “Genocide, War Crimes and Crimes Against Humanity” about the case law of the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia (Human Rights Watch 2006.

Nazi guard found guilty of helping to murder thousands of Jews

By Polly Johnson
Senior Desk Officer, Europe

John Demjanjuk was convicted on Thursday for his role as a death camp guard during World War II (Photo Courtesy of New York Times).
John Demjanjuk was convicted on Thursday for his role as a death camp guard during World War II. (Photo Courtesy of New York Times).

MUNICH, Germany – A German court on Thursday convicted and sentenced 91-year old autoworker John Demjanjuk to five years in prison for helping the Nazis murder more than 28,000 Jews at the Sobibor concentration camp during World War II. He was released pending appeal.

Demjanjuk, who is in poor health, showed no emotion when the verdict was announced, said Al Jazeera correspondent Tim Friend. “John Demjanjuk’s health has been questionable during this entire trial. He has spent much of it on a stretcher in court,” Friend said.

Starting in November 2009, the trial lasted eighteen months. Proceedings were limited to two sessions of ninety minutes a day because of Demjanjuk’s health problems, including an incurable bone-marrow disease.

“The court is convinced that the defendant [ . . . ] served as a guard at Sobibor from 27 March 1943 to mid-Septermber 1943,” and “took part in the murder of at least 28,000 people,” said presiding judge Ralph Alt, who noted that Demjanjuk voluntarily took part in the Nazis’ “machinery of destruction.” Approximately 250,000 people died at Sobibor.

Demjanjuk denied the claims against him. His lawyers said they will appeal the conviction.

Ukranian-born Demjanjuk, a former U.S. citizen, was a soldier in the Red Army in 1942 when he was captured by the Germans and recruited to be an SS guard at the death camp. He was deported to Germany in 2009, where he was accused of assisting the Nazis herd Jews to the gas chambers at the camp in Poland.

The prosecution used various documents to prove its case, including an SS identity card indicating Demjanjuk’s association with Sobibor, staff lists, and a memo dated January 1943 that showed Demjanjuk was at Sobibor. The defense argued that most of the documents were forged, a claim Alt said was unlikely.

Demjanjuk’s association with Sobibor during the relevant time period, rather than specific evidence linking him to the murders, was enough to show that he participated in the mass killings, the prosecution argued.

The defense argued that though Demjanjuk was recruited as a camp guard, he was not placed at Sobibor. Demjanjuk said he remained a prisoner of war until 1945, then later moved to the United States, where he started a family and lived in Cleveland.

Demjanjuk’s family said after the verdict that Demjanjuk should not spend any more days in prison. An email signed by Demjanjuk’s son John Demjanjuk Jr., reported by the New York Times, said: “There remains not a scintilla of evidence he ever hurt a single person anywhere. While some may take satisfaction from this event, this verdict is no more definitive today than the wrongful Israeli conviction and death sentence was previously.” Demjanjuk was found guilty in the 1980s in an Israeli court for serving as a guard in another camp, Treblinka. After serving close to eight years in an Israeli prison, five of which were spent on death row, the court overturned the verdict on the grounds of wrongful identification.

However, others, including families of World War II victims, expressed relief at the verdict. Efraim Zuroff, of the Simon Wiesenthal Center, said that the court’s decision “sends a very strong message that even years after the crimes of the Holocaust, perpetrators can be held to account for their misdeeds.”

Rudolf Salmon Cortissos, whose mother was killed in the gas chambers at Sobibor told the Associated Press, “It’s very emotional – it doesn’t happen every day.”

For more information, please see:

Al Jazeera – ‘Nazi guard’ found guilty of murder – 12 May 2011

BBC – John Demjanjuk guilty of Nazi death camp murders – 12 May 2011

Bloomberg – Demjanjuk Convicted of Helping Nazis to Murder Jews During the Holocaust – 12 May 2011

New York Times – Demjanjuk Convicted for Role in Nazi Death Camp – 12 May 2011

Radio Free Europe – Demjanjuk Found Guilty Of Nazi Murders, Released On Grounds Of Age – 12 May 2011

India ‘Honour Killings’: Family Before All

David L. Chaplin II
Impunity Watch, Asia

ROHTAK, India – India’s Supreme Court says family members convicted of ‘honour killings’ should face the death penalty, going further than life sentences of old. Honour crimes are perpetrated by families against their very own family. These crimes are committed in the name of honor, pride, and tradition when dealing with marriage outside of one’s caste.

The male, female intermingling and marriage outside of caste and religion remains a taboo, not only for largely rural illiterate populations who have lived under a system of feudalism for centuries, but even for educated, well-off families in urban India.

In traditional Indian societies, women are often regarded as family property. Marriages are carefully arranged by parents and elders and relationships outside of caste are frowned upon.

Many victims incite their families by marrying outside their caste. Often “honour” crimes against them are endorsed, or even encouraged, by village-based caste councils.

A dominate issue remains the proximity to cities and access to education often promoting modern influences, creating a conflict between traditional beliefs and modern aspirations in the minds of the young.

The Supreme Court of India warned senior officials who failed to act against the offenders with threats that they too would be prosecuted. The Court asked state governments to suspend district magistrates and senior police officers for failing to act against these councils.

Despite India’s rapid modernization and growing cosmopolitanism, which has been driven by accelerated economic growth, discrimination against low-caste communities known as Dalits and minority faiths such as Muslims persists in this predominately Hindu country.

“It is time to stamp out these barbaric, feudal practices which are a slur on our nation,” the court said.

India’s media highlighted the case of 22-year-old journalist Nirupama Pathak who allegedly was killed by her mother in their home in the eastern state of Jharkhand, after she was found to be pregnant by her lower caste boyfriend.

Cases of “honour killings” are regularly reported from the neighboring states of Punjab, Haryana and western Uttar Pradesh, but in the capital they are uncommon.

The All-India Democratic Women’s Association (AIDWA) has welcomed the Supreme Court judgment underscoring the gravity, barbaric and feudal nature of killings in the name of ‘honour.’

“The judgment exposes the failure of the government to take appropriate action and bring the perpetrators of such crimes to justice. It has been a long-standing demand of AIDWA that such killings and crimes in the name of ‘honour’ be dealt with by a comprehensive stand-alone legislation,” said AIDWA.

The AIDWA has also demanded that the police be forced by the government to ensure that such crimes are properly investigated and criminals are apprehended.

On Sunday, two widows were bludgeoned to death in a Haryana village by a man who accused them of being in a lesbian relationship.

The 23-year-old killer was the nephew of one of the women. He was on parole, having served a sentence for rape.

He said he had killed the women to protect his “family’s honour”.

Eyewitnesses told police he killed his aunt and the other woman in full view of other villagers, after he accused them of being in a lesbian relationship.

The two bled to death as the villagers watched. Correspondents say such killings have often not been reported or widely discussed in the past because families usually accept the verdicts.

Oppositional voices to the Supreme Court’s decision say that the “[l]aw is for the society and not vice versa. Honour is one of the most important elements for a being,” Om Parkash Dhankar said.

He further stated, “There are adequate provisions of punishment in the Indian judicial system for every kind of crime. Making a separate provision for murder cases is uncalled for.”

He added that in a majority of cases, the family members kill their relatives in a fit of rage. “Even Rama killed Ravana for honour, because he was keeping a bad (an evil) eye on his wife,” he said.

The Justice department vehemently disagrees, stating that “[a]ll persons who are planning to perpetrate ‘honour’ killings should know that the gallows await them,” said Justices Markandeya Katju and Gyan Sudha Mishra.

There are no reliable statistics on the number of “honour killings” in India, but most have reported that for every case that gets recorded, several others go unreported.

For more information, please see:

The Hindu – AIDWA demands law on on ‘honour’ killing – 10 May 2011

Times of India – Honour Killings: Khaps reject SC observations – 11 May 2011

Indian Express – Inter-caste marriages in national interest – 20 April 2011

India Reuters – Supreme Court cracks down on tradition of “honour killings” – 20 April 2011

BBC – Indian ‘honour’ killers should hang, Supreme Court says – 10 May 2011