By Benjamin B. Ferencz
Published: August 2011
Courtesy of BenFerencz.org

This is a historic moment in the evolution of international criminal law. For the first time a permanent international criminal court will hear the closing statement for the Prosecution as it concludes it first case against its first accused Mr. Thomas Lubanga Dyilo.

I witnessed such an evolution. As an American soldier, I survived the indescribable horrors of World War II and served as a liberator of many concentration camps. Shortly thereafter, I was appointed a Prosecutor at the Nuremberg War crimes trials which mapped new rules for the protection of humanity. I was 27 years old then. I am now in my 92nd year, having spent a lifetime striving for a more humane world governed by the rule of law.

I am honoured to represent the Prosecutor and to share some personal observations regarding the significance of this trial.

The most significant advance I have observed in international law has gone almost unnoticed; it is the slow awakening of the human conscience. The 1948 Universal Declaration of Human Rights proclaimed inalienable, fundamental rights of “all members of the human family as a foundation of freedom peace and justice in the world.” Countless human rights declarations have been made over many years by many dedicated persons and organizations. But legal action to enforce the promises has been slow in coming.

In Rome in 1998, when the Statute that binds this Court was overwhelmingly approved, over a hundred sovereign states decided that child recruitment and forcing them to participate in hostilities were among “the most serious crimes of concern for the international community as a whole.” Punishing perpetrators was recognized as a legal obligation.

What makes this Court so distinctive is its primary goal to deter crimes before they take place by letting wrongdoers know in advance that they will be called to account by an impartial International Criminal Court. The law can no longer be silent but must instead be heard and enforced to protect the fundamental rights of people everywhere.

The Prosecutor’s Office spoke at length meticulously detailing grim facts establishing the responsibility of the accused for the crimes alleged. The evidence showed that waves of children, recruited under Mr. Lubanga’s command, moved through as many as 20 training camps, some holding between eight and sixteen hundred children under age 15.

Words and figures cannot adequately portray the physical and psychological harm
inflicted on vulnerable children who were brutalized and who lived in constant fear. The loss and grief to their inconsolable families is immeasurable. Their childhood stolen, deprived of education and all human rights, the suffering of the young victims and their families left permanent scars. We must try to restore the faith of children so that they may join in restoring the shattered world from which they came.

Imagine the pain of mothers crying and pleading at the door of the camps still suffering and wondering what happened to their children. Picture the agony of the father who said : “[…] he is my first son. All of my hopes were laid on him. […]the child was ruined. […] Today he can do nothing in his life. He has abandoned his education. And this is something which affects me greatly.”

All of the girls recruited could expect to be sexually violated.

All of these events which the Prosecution has carefully presented have been proved beyond reasonable doubt. Once again, “the case we present is a plea of humanity to law.” It was a call for human beings to behave in a humane and lawful way.

The hope of humankind is that compassion and compromise may replace the cruel and senseless violence of armed conflicts. That is the law as prescribed by the Rome Statute that binds this Court as well as the UN Charter that binds everyone. Vengeance begets vengeance. The illegal use of armed force, which is the soil from which all human rights violation grow must be condemned as a crime against humanity. International disputes must be resolved not by armed force but by peaceful means only. Seizing and training young people to hate and kill presumed adversaries undermines the legal and moral firmament of human society.

Let the voice and the verdict of this esteemed global court now speak for the awakened conscience of the world.

Originally Published by Amnesty International
7 September 2011

The Technical Committee responsible for revising Burundi’s 2004 Truth and Reconciliation Commission (TRC) Law should propose significant revisions, Amnesty International said in a submission to the Committee this week.  Such changes are essential to ensure victims of human rights violations which occurred during the decades of violence and conflict in Burundi obtain truth, justice and reparations.

Amnesty International recommends that the mandate of the TRC should be broad enough to cover all crimes under international law, including genocide, crimes against humanity and war crimes.  Amnesty International recalls that Burundi is obliged under international law not to provide an amnesty for those responsible for genocide, crimes against humanity, war crimes, torture, enforced disappearances and extrajudicial executions.

The law should determine the relationship between the mandates of the TRC and a Special Tribunal.  The TRC should not be considered a substitute for judicial processes to establish individual criminal responsibility.  Amnesty International urges that those responsible for crimes under international law are brought to justice by establishing a Special Tribunal.

Commissioners should be selected for their proven independence and competence in human rights.  They should not be closely associated – or perceived to be associated – with any individual, government, political party or other organization potentially implicated in the human rights violations under investigation or with organizations associated with victims.

Amnesty International also recommends that the procedure that the TRC will follow is clearly defined in the amended law.  This should be part of a victims-orientated approach to witness protection and reparations.  Reparations should include the right to non-repetition, not mentioned in the 2004 law.

Suspected perpetrators of crimes under international law should also have the right to be presumed innocent until and unless they are proven guilty in separate criminal proceedings in a trial meeting international fair trial standards.

The TRC should be part of a broader, long term, and comprehensive government action plan, developed, implemented and monitored with support from civil society and victims groups, to uphold the right of victims to obtain truth, justice and reparation. Such an action plan should also include prosecutions, mechanisms to ensure reparation and legislative, institutional and other reforms.

Background

Prior to and during Burundi’s armed conflict, all sides were responsible for serious violations of international humanitarian and human rights law.  Thousands of Burundians were killed during the conflict.

In June 2011, a Technical Committee was tasked with proposing amendments to a 2004 Law creating a TRC and with proposing criteria for members of the TRC.  The Technical Committee is expected to complete its work by 13 September 2011.

ICTJ World Report September 2011

Crimes Against Humanity Explored at 5th IHL Dialogs

By Benjamin Zawacki
Originally Published by The Irrawaddy 2 Sept 2011

It is time the EU work to establish a UN-led Commission of Inquiry into crimes against humanity and other crimes under international law in Myanmar.

Four years ago this month, the people of Myanmar rose up in what became known as the “Saffron Revolution”, named after the Buddhist monks who eventually led the demonstrations.  While the world initially condemned the security forces’ violent crackdown that followed, several months later the Myanmar authorities managed to deflect international criticism by announcing it would hold national elections and form a civilian government.

The international community, including the European Union (EU), has been distracted ever since, despite an abundance of information that the Myanmar government has continued to violate human rights on a massive scale.  ‘Wait and see’—what the government will do before the elections, how the elections will be conducted, whether the new government will make any changes—has been the prevailing and irresponsible approach.

Meanwhile, the human rights situation in Myanmar has gone from bad to worse, with no justice for the victims.  By the time the elections announcement was made, the number of political prisoners in Myanmar had nearly doubled from its pre-Saffron Revolution number to over 2,100—where it remains today.  Several months afterwards, the government denied, obstructed, and/or confiscated international aid in the wake of Cyclone Nargis, turning the humanitarian disaster into a human rights crisis.  And a year later, authorities arrested, tried, and unlawfully extended the house arrest of opposition leader Daw Aung San Suu Kyi.

Among the situations calling out loudest for justice and accountability is Myanmar’s ethnic minority regions.  Ten months before the November 2010 elections, Amnesty International released a report on the repression of ethnic minority political activists in Myanmar, which showed that optimism in relation to the polls was being contradicted in the ethnic minority areas.

It followed a mid-2008 publication, Crimes against humanity in eastern Myanmar, whose relevance has only increased since then.  The report focused on the Myanmar army’s human rights violations against ethnic minority Karen civilians on a widespread and systematic basis, which amounted to crimes against humanity.  Violations included extrajudicial executions, torture, arbitrary detention, forced labour, confiscation of land and food, and forced displacement of the civilian population on a large scale, starting in late 2005.

While this was the first time Amnesty had characterized such violations as crimes against humanity, the report’s findings were consistent with our research on the country for two decades.  The testimonies, collected in several countries since 1987, documented the very same crimes against civilians.  They were told to us not only by the Karen, but by many other ethnic minorities as well, including the Rohingya, the Karenni, the Shan, and the Mon.

Likewise, accounts since mid-2008, especially since the day of Myanmar’s national elections last November, when hostilities were accelerated or renewed between the Myanmar army and armed groups fighting on behalf of several ethnic minorities, recall our report’s findings: serious human rights violations—some of which may amount to crimes against humanity and/or war crimes—against ethnic minority Karen, Kachin, and Shan civilians.

These include recent accounts of the army using prison convicts as porters in the fighting in Kayin (Karen) State, forcing them to act as human shields and mine-sweepers, and of rape and other sexual violence, primarily in Shan State.  Reliable reports indicate that the number of displaced persons there has reached 30,000, while in or near Kachin State 20,000 internally displaced persons were reported at the end of July.

We have waited for years, even decades, and seen quite enough: these violations call for accountability.  However, Article 445 of Myanmar’s 2008 Constitution—which codifies immunity from prosecution for officials for past violations—indicates that without international action, this is most unlikely.

In October 2011 the UN Special Rapporteur will be presenting a report to the UN General Assembly, which will likely adopt a resolution on Myanmar.  The EU will again lead in the drafting of this resolution.  In each of his reports or statements to the UN Human Rights Council and the General Assembly, the Special Rapporteur has called for greater accountability for grave international crimes in Myanmar or expressly recommended that the UN establish a Commission of Inquiry into such crimes.

While the question remains as to whether such a Commission would have access to Myanmar, a similar 1997 Commission by the International Labour Organization compensated for its denial of access partly through expert testimony, which Amnesty among others provided.  Two years later, Myanmar passed a law prohibiting forced labour.  Accountability must begin somewhere.

Moreover, accountability need not exclude increased humanitarian assistance and efforts to engage the new government.

Amnesty International welcomes the fact that 12 of the 16 nations that have publicly stated their support for a Commission of Inquiry in Myanmar are EU members, but regrets that neither the EU as a bloc nor several of its influential members—including Germany, Italy, Spain, and Sweden—have not done so.

After more than three years of ‘wait and see’, it is time the EU and its member states translate their concern about Myanmar’s human rights situation into public support for the establishment of a UN-led Commission of Inquiry into crimes against humanity and other crimes under international law in Myanmar.

Benjamin Zawacki is Amnesty International’s Myanmar researcher and a member of the US Council on Foreign Relations.