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International Criminal Tribunal for the former Yugoslavia: 20 Years in Review

By Madeline Schiesser
Impunity Watch Reporter, Europe

THE HAGUE, Netherlands – In May, the International Criminal Tribunal for the former Yugoslavia (ICTY) will mark its 20th anniversary.  During two decades, the tribunal issued indictments against 161 persons for crimes committed against tens of thousands of victims in the former Yugoslavia.  However, as this benchmark approaches, activists and diplomats alike reflect on the achievements and limitations of the ICTY.

The ICTY left a lasting impression on international law, and thanks to its legacy, the question is no longer if leaders should be held accountable, but rather when. (Photo Courtesy of the Friedrich Naumann Foundation)

Created by UN Security Council resolution in May 1993, the ICTY was the first international court since the Nuremberg and Tokyo war crimes trials at the end of World War II.

Since then, the court has now begun to wind down, with only three cases left on its docket, and no new indictments since 2004.  Its most recent high profile indictee, Former Yugoslav President Slobodan Milosevic, died in 2006 in custody before a verdict was reached.

A look back at the ICTY has been sparked by a controversial debate on the ICTY held by the U.N. General Assembly earlier this month after former Serbian Foreign Minister Vuk Jeremic, currently president of the General Assembly, called for the debate.  The discussions, characterized as one-sided, prompted a walkout by the U.S. delegation, while senior Serbian officials used the debate to bring allegations that the court was essentially an “inquisition” directed against Serbia.

Jeremic said in opening the session, “The paramount question is how international criminal justice can help reconcile former adversaries in post-conflict, transitioning societies”

However, Judge Theodor Meron, president of the ICTY, had previously criticized the planed debate, saying it “pose[d] questions in terms of fundamental respect for the rule of law,” and that “It is not a [debate] in which my participation would make any significant contribution to the norms which I hold dear.”

The ICTY was also criticized in November, when it acquitted on appeal Croatian ex-Generals Ante Gotovina and Mladen Markač, who had been sentenced to jail for significantly contributing to a Joint Criminal Enterprise through their roles in a 1995 offensive to drive Serbian rebels out of the Krajina region with unlawful artillery attacks on four towns.  However, the appeals chamber found the evidence insufficient to show the artillery attacks were unlawful and therefore overturned the convictions and ordered the men’s release, prompting angry reactions.

Richard Dicker, director of the International Justice Program at Human Rights Watch, explains the desirability of reviewing the ICTY to set the record straight: “There’s a need for a review because we are approaching the 20th anniversary of the establishment of the tribunal,” he says.  “It’s essential and responsible to do a careful, thoughtful, critical review. Everyone who is committed to bringing justice for these crimes — to seeing victims get redress — wants the system to work better.”

One of the main criticisms of the court has been the slow proceedings.  Dicker suggests future war crimes trials should look into issues of expediency while still respecting the rights of the accused to a fair trial.  Phillippe Sands, a professor of law at University College London and a lawyer involved in the international courts, says the ICTY’s early delays reflected that the court was in “new, untried, untested waters.”  “There is a broad recognition that in some of the cases, the initial charges — both in terms of investigation and actual prosecution — were probably too great, too large, which meant that the trials ran on. The judges reacted, and I think they sent certainly signals to the prosecutor’s office to be more narrowly focused,” Sands explains.

Another criticism has been the handling of evidence and lengthy testimony by the court.  For example, in the Milosevic case, the defense was permitted to call an enormous number of witnesses, dragging the trial out for years prior to Milosevic’s death.

The ICTY also needed to merge criminal doctrine from divergent legal systems.  “For example, the treatment of evidence is very different in the civil-law countries like France, or Italy, or Germany on the one hand, than it is in a common-law country like the United Kingdom, or the United States, or South Africa, or India. So you’ve got a sort of coming together that inevitably slows things down,” Sands said.

It also took time for the ICTY to truly appreciate the needs of justice and reconciliation of the victims and diverse peoples of the Balkans.  Dicker explained that, “The tribunal did not have an outreach program until close to the year 2000. That effort to explain what it was doing was never funded out of the UN budget, but in fact, was funded by voluntary contributions from states and private individuals.”  And although there were high hopes that the court would foster reconciliation, Geraldine Mattioli-Zeltener, the advocacy director in the International Justice Program of Human Rights Watch concedes that “Reconciliation is a very tall order for a court of justice.”  Unfortunately, rulings by the ICTY may have created more fractioning between the Serbs, Bosnians, Croatians, and Kosovar Albanians than reconciliation.

Interestingly, an area in which the ICTY showed success was in overcoming the language barrier— often one of international law’s greatest difficulties.  Translation in the ICTY remains faster than in the newer International Criminal Court, whose language must change with each case, because the ICTY mostly works in three languages: French and English—the two working languages of the United Nations—and “BCS”— Bosnian/Croatian/Serbian.  (Note, when addressing crimes committed in Kosovo and Macedonia, the court temporarily will also work in Albanian and Macedonian.).  Although the internal politics of the “BCS” language are complex, its institution has allowed for high-quality, quick translations, at close to the speed of monolingual dialogue.

Prosecutors before the war crimes court also met the challenge of prosecuting a crime without the ability to investigate the crime scene.  Senior Trial Attorney Peter McCloskey described how his office received assistance in this area from NATO and “crazy journalists” who had discovered mass graves on their own.  Prosecutors also experienced difficulty during the wars in Bosnia and Herzegovina as well as Kosovo with a lack of available records.  Nevertheless, in two decades, the court has managed to accumulate millions of pages of documents and thousands of witness statements and dossiers.

Despite the shortcomings that present themselves alongside the ICTY’s achievements, the tribunal has marked a significant milestone for international criminal law.  As  Secretary-General Ban Ki-moon stressed earlier this month in front of the U.N. General Assembly, “Impunity for war crimes, crimes against humanity, genocide and other serious international crimes is no longer acceptable, nor is it tolerated.  Where once [victims] might have gone unheard, left to suffer in silence, today they have a platform.”  He further emphasized the sanctity of the Court’s rule of law: “It means implementing their decisions. And it means safeguarding them from those who seek to undermine them for reasons that may have more to do with politics than justice.”

For further information, please see:

RFE/RL – Justice Activists Call For ‘Serious’ Review Of UN War Crimes Court – 16 April 2013

UN News Centre – Assembly Stresses Role of International Criminal Courts in Fostering Reconciliation – 10 April 2013

RFE/RL – ICTY President Criticizes Serbian-Organized UN Debate – 4 April 2013

The Economist – Laws in Translation – 25 March 2013

Friedrich Naumann Foundation – Bringing War Criminals to Justice and Justice to Victims: FNF Visits the International Criminal Tribunal for the Former Yugoslavia (ICTY) – 19 March 2013

Assad Grants “Amnesty” for War Crimes

By Ali Al-Bassam
Impunity Watch Reporter, Middle East

DAMASCUS, Syria — On a day where the anniversary of the 1946 withdrawal of French troops was commemorated, President Bashar al-Assad issued general amnesty for crimes committed in Syria before April 16.  Under the amnesty, those who fought for opposition forces will serve only a quarter of their original sentence if found guilty for war crimes.

President Assad’s decree replaces death sentences with a sentence of life imprisonment with hard labor. (Photo Courtesy of Raw Story)

The Syrian state-run newspaper, SANA, reported that “President Assad has issued decree number 23, granting a general amnesty for crimes committed before April 16, 2013.”  The amnesty also replaces death sentences to life imprisonment with hard labor.  Prisoners with advanced age or incurable diseases will be pardoned, and rebels who turn over their weapons will also be pardoned.  The decree does not apply to those found guilty of smuggling weapons, or serving time for drug-related crimes.

While the decree grants a reduced sentence to rebel fighters, the decree itself refers to them as “terrorist groups,” since the Syrian government denies the existence of an uprising, and claims that it is suffering from terrorists attempting to carry out a foreign conspiracy.  Recently, Assad said that Syria’s neighbors were to blame for inciting the revolt, and said that they will pay a “heavy price.”  In an interview with a Turkish television station, Assad warned viewers of a possible spillover from the conflict in Syria into neighboring countries, and predicted that it “will have an immediate domino effect that will reach countries across the Middle East.”

Assad made similar promises before during the two-year war, and even offered pardons for those “convicted of acts against the state.”

Activists and opposition forces balked at the decree, calling it “political theater,” and said that many dissidents still remain in Syrian prisons.  They also believe that the decree does not go far enough.  Moaz Alkhatib, Syria’s opposition leader, made his skepticism known in a Facebook post.  “We want an amnesty on crimes and the release of all innocents of which there are more than 160,000.  Most importantly among them are the women and children.  If this happens we will say it is a token of a Syrian solution,” said Alkhatib.

Even though the Syrian government refuses to disclose prisoner-related statistics, it is estimated that tens of thousands of prisoners, including thousands of political prisoners, are currently incarcerated.

Meanwhile, the number of casualties in Syria is on the rise as the conflict continues.  The United Nations estimates that over 70,000 people have been killed in the two year period.  Last March was also considered to be the bloodiest month of the entire conflict.  The UK-based Syrian Observatory for Human Rights reported that they recorded over 6,000 deaths within that period.

Also, the conflict itself has resulted in the displacement of over 1.3 million refugees to neighboring countries, while two million are displaced within Syria.

For further information, please see:

Al Bawaba — Syria: Assad Issues Fresh “General Amnesty” as Opposition Remain Unimpressed — 16 April 2013

Alternative Press — Syria’s Assad Reduces Sentences for Some Rebels — 16 April 2013

Raw Story — Syrian President’s new Amnesty Offer Waives Death Penalty for War Crimes –16 April 2013

Times of Israel — Bashar Assad Issues Amnesty Decree for Criminals — 16 April 2013

War Crimes: Al-Shabaab’s Deadly Attacks on Somali Courthouse and International Aid Workers

By Hannah Stewart
Impunity Watch Reporter, Africa

MOGADISHU, Somalia — Al-Shabaab carried out a suicide attack on the court complex in the capital city on Sunday, and a bomb was detonated later on the airport road, leaving at least 30 people dead.

Women and children ran through the streets of Mogadishu after a suicide attack on the court complex occurred. (Photograph Courtesy of New York Times and Mohamed Abdiwahab/Agence France-Presse)

Al-Shabaab, an Islamist militant group, claimed the attacks.  The attack on the court consisted of a suicide bombing followed by additional explosions, and several assailants stormed the court complex shooting live rounds.  At least four legal professionals were killed, including a judge and three lawyers.  Shortly afterward a car bomb detonated hitting several cars carrying Turkish aid workers on the airport road several kilometers from the court complex.

International humanitarian law, also called “the laws of armed conflict” is applicable in Somalia.  As such, the courthouse was not a legal military target and the aid workers are protected civilians.  These deliberate attacks, resulting in the death of civilians, are violations of the international humanitarian law.  However, an al-Shabaab spokesman told the media that the court was a legitimate military target as they were ruling contrary to Sharia, or Islamic law.

The number of fatalities from the attacks has continued to rise.  Medina Hospital, one of the Mogadishu’s main hospitals, told Human Rights Watch that it received at least 18 bodies and 4 people died at the hospital.  International and Somali media reported that at least 30 people died and dozens were wounded.

Among the dead were a Somali journalist who had acted as the courts’ media adviser and two human rights lawyers.  Respected attorneys Professor Mohamed Mohamud Afrah, the head of the Somali Lawyers Association, and Abdikarin Hassan Gorod were killed when al-Shabaab gunmen opened fire inside the court complex.

Afrah and Gorod had recently represented a woman who faced criminal charges after she accused government security forces of rape.  They also represented a journalist who had interviewed the woman, and also faced charges in a politically motivated trial that received international attention.  This woman was initially sentenced for “falsely accusing” government forces; however, the court of appeals eventually dropped all charges.

Al-Shabaab once controlled almost all of Mogadishu; however, African Union and Somali forces reclaimed the city in 2011.  As such, Sunday’s events marks the deadliest Islamist militant attack in years for the city.  President Hassan Sheik Mohamud, called the attack “nothing but a sign of desperation by the terrorists, who’ve lost all their strongholds and are in complete decline, right across Somalia.”

For more information, please see:

All Africa – Somalia: New Al-Shabaab Attacks are War Crimes – 16 April 2013

Human Rights Watch – Somalia: New Al-Shabaab Attacks are War Crimes – 16 April 2013

The Guardian – Tributes Paid to Somali Human Rights Lawyers Killed in al-Shabaab Attack – 15 April 2013

The New York Times – Coordinated Blasts Kill at Least 20 in Somalia’s Capital – 14 April 2013

Hungry, Hungry Detainees, How Gitmo Prisoners Are Facing Detention

By Brendan Oliver Bergh
Impunity Watch Reporter, South America

HAVANA, Cuba – The prisoners of Guantanamo Bay live in a legal quagmire. Deemed either too dangerous to be freed, or pushed under the rug, hoped to be forgotten by the United States legislature, executive and judicial branches that have kept them there. Due to their status as non-Americans, in a territory not of the United States, they are forbidden from exercising many legal remedies that the United States Constitution upholds, habeas corpus, article 3 courts. Instead they took what they felt was their only available remedy, a hunger strike.

Guantanamo Bay prison camp, also known as GITMO, where hundreds of detainees are being held without cause.(Photo courtesy of NPR)

Over the weekend detainees clashed with the prison guards with makeshift weapons: batons, broomsticks and water bottles crafted together with duct tape. Beyond the mere hopelessness many feel, there have been a number of setbacks for the detained. Revelations that a figure was secretly monitoring and censoring the pretrial hearings of men, and the discovery of a listening device in the client-attorney conference room drove many to begin their three-month hunger strike. After the clashes, detainees were separated and each placed into solitary confinement.

Unwilling to allow the detainees to slowly kill themselves, guards were forced to subdue them, and insert feeding tubes up their noses in order to stave off starvation. One inmate describes the feeling as “painful,” and claimed that “As it was thrust in, it made me feel like throwing up. I wanted to vomit, but I couldn’t. There was agony in my chest, throat and stomach. I had never experienced such pain before. I would not wish this cruel punishment upon anyone.”

The hunger strikes and physical defection are just the latest from the Guantanamo Bay detainees who are seeking international recognition of their plight. Despite an executive order by President Barack Obama, the prison remains open due to funding plights. After Congress passed legislation that effectively eliminated any way for detainees transfer into the sovereign United States the camp remains in limbo, surviving on an ever shrinking pool of funding leading to cuts in resources.

Attorneys for the detained have stated that it is unclear how the hunger strike will eventually end. The strike originally arose out of the detainee’s sense of hopelessness that the administration will ever be closed. But until either another country agrees to take the prisoners, or Congress alters legislation, it is unclear how the detainee’s story will end.

For more information, please see:

Truth-Out – Gitmo Trial Ethics Breaches Called Possible Obama Plan To Close Prison – 15 April 2013

Policy Mic – Guantanamo Hunger Strike: Abused Prisoners Riot At GITMO – 15 April 2013

Wired – It’s Forced Feeding Vs. Scotch-Tape Batons As Gitmo Detainees Continue Hunger Strike – 15 April 2013

The New York Times – Gitmo Is Killing Me – 14 April 2013

 

Demonstrations Planned Against Colombian Mining Company, Anglo American

By Pearl Rimon
Impunity Watch Reporter, South America

 BOGOTA, Colombia – There is an upcoming demonstration scheduled in London from people in Colombia, Mongolia, South Africa and the United States against the largest mining companies. The mining companies are accused of polluting the environment, affecting people’s health and forcing communities to migrate due to their operations.

Cerrejón mine located in La Guajira, Colombia. (Photo Courtesy of Guy Bell/Alamy)

The owners of Cerrejón, a coal mine in northern Colombia, are accused of devastating the health of about 13,000 people who live near the mine.

Julio Gomez, the president of Fecodemigua (Federation of Communities Displaced by Mining in La Guajira) said,”We have had to suffer the impacts of opencast coal mining for over 25 years now. Our communities have been gradually and systematically asphyxiated by the contamination caused by coal mining, our societies [have been] fractured.”

The mine has been opened since 1985 and plans on increasing its production by 25% in three years. Britain has increased imports of Colombian coal by 48%. The mine is the largest in South America. The mine has gone through labor disputes, complaints of management, pollution, and for failure to compensate communities that have been affected by its operations. The mine was shut down by a strike for 32 days this year. Mine workers suffered from back problems and respiratory infections.

“The health of everyone in La Guajira within 5km of the area of mining and transport of coal is being severely affected: studies [show] the constant exposure to coal dust is clearly linked to the increase in illnesses,” said Gomez.

The owners of Cerrejón, Anglo American, have been accused of destroying communities due to expansion. Five villages have been displaced due to the mine’s operations. The affected communities mostly include those of the Wayuu people. The Wayuu have lived in the area before the Spanish conquest. The Wayuu have been forced to resettle to other villages. The indigenous Afro-Colombian people have also been displaced due to the mine. The people that did not relocate suffer from polluted soil, which prevents them from growing their crops.

An Anglo American spokesman said, “Anglo American works tirelessly to ensure we observe the highest international standards, whether relating to human rights, environmental sensitivities and social issues, both in our wholly owned and jointly owned operations.”

Critics of Anglo American advocate for the displaced people and miners who try to stop the rapidly expanding mining industry and demand better conditions for the people who live in the surrounding areas.

For further information, please see:

Guardian — Colombian miners hit out at Anglo American – 15 April 13

El Heraldo — Corpoguajira opens investigation against Cerrejón – 12 April 13

El Herlado — Cerrejon says that manages protection for threatened members Sintracarbón – 9 April 13

New Internationalist — Bringing Colombian coal mining back home to London – 9 April 13