Special Features

PRESS RELEASE REGARDING “CHOIZIL” CASE (SOMALI PIRATES)

Originally published 12 August 2011

Today the district court of Rotterdam in the Netherlands passed judgement on the case of five Somali men suspected of committing piracy. The court handed down prison sentences ranging from four and a half to seven years.

The indictments against the five suspects included, among other things, the charge that they were all involved in the hijacking of the South African sailing yacht “Choizil”. All suspects were arrested in the Gulf of Aden by a Dutch naval vessel in November 2010. Soon thereafter they were transferred to the Netherlands in order to stand trial.

Three of the five suspects were found guilty of piracy. Enacting on their premeditated plan of hijacking ships by force, they headed out on the open seas whilst navigating a couple of small boats. They were heavily armed, carrying machine guns and bazookas. Because of their timely arrest by the Dutch navy, this group of pirates had not yet hijacked any ship. Their alleged involvement in the violent capture of the Choizil could not be proven. All of the suspects were arrested two weeks after the hijacking of the Choizil, making the burden of proof more challenging for the prosecution in this matter. However, two of the five pirates could be linked directly to the hijacking of the Choizil and were thusly convicted and sentenced.

In its judgement the court has noted that pirates often use extreme violence, leading to tremendous suffering among the crew members whom they take hostage in order to collect ransom moneys. The court has emphasized that piracy in the Gulf of Aden has turned into a significant threat for all ships that frequent that region. The free and unfettered transport of cargo, resources and fuels can no longer be guaranteed. Global economic consequences can no longer be ruled out.

The court has also reflected on the particularly harsh circumstances in Somalia. Armed conflicts are a daily occurrence. Currently, the region is being hit by one of the worst cases of famine in decades. All five suspects have described to the court as to how these circumstances have also impacted their own lives. However, the court has ruled that none of those circumstances, no matter how grave, can and may be accepted as any justification for committing acts of piracy.

In considering the penalty, the court has held that the professional manner in which the piracy was organized is an aggravating circumstance. The court has considered that detention for all five suspects will for them be more demanding than detention for a random person who is arrested in the Netherlands. This mitigating circumstance has only led to a minimal reduction in the penalty. The court explained that it was, after all, the suspects’ own behaviour which led them to being arrested abroad and subsequently detained in the Netherlands.

The legal jurisdiction of the court was not challenged in these proceedings. In a previous case regarding Somali pirates, this court had already decided that such legal jurisdiction exists (LNJ BM8116). The Netherlands has vested so-called universal jurisdiction in its Criminal Code whenever piracy is involved. This is in accordance with international treaties.

Note to the press: two of the five verdicts (coded LJN BR4930 and LJN BR4931) are published on the website of the Dutch Judiciary www.rechtspraak.nl

ICTJ In Focus Issue 5 August 2011

ICTJ in Focus August 2011 Issue 5

White House Press Release: Presidential Study Directive on Mass Atrocities

The White House, Office of the Press Secretary
Press Release Originally Published 4 Aug 2011

PRESIDENTIAL STUDY DIRECTIVE/PSD-10

MEMORANDUM FOR

THE VICE PRESIDENT
THE SECRETARY OF STATE
THE SECRETARY OF THE TREASURY
THE SECRETARY OF DEFENSE
THE ATTORNEY GENERAL
THE SECRETARY OF HOMELAND SECURITY
ASSISTANT TO THE PRESIDENT AND CHIEF OF STAFF
DIRECTOR OF THE OFFICE OF MANAGEMENT AND BUDGET
UNITED STATES TRADE REPRESENTATIVE
REPRESENTATIVE OF THE UNITED STATES OF AMERICA TO THE UNITED NATIONS
ASSISTANT TO THE PRESIDENT AND NATIONAL SECURITY ADVISOR
DIRECTOR OF NATIONAL INTELLIGENCE
COUNSEL TO THE PRESIDENT
ASSISTANT TO THE PRESIDENT FOR LEGISLATIVE AFFAIRS
DIRECTOR OF THE CENTRAL INTELLIGENCE AGENCY
ADMINISTRATOR OF THE UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT
CHAIRMAN OF THE JOINT CHIEFS OF STAFF
CHIEF EXECUTIVE OFFICER, MILLENNIUM CHALLENGE CORPORATION
DIRECTOR OF THE PEACE CORPS
DEPUTY ASSISTANT TO THE PRESIDENT AND NATIONAL SECURITY ADVISOR TO THE VICE PRESIDENT
DIRECTOR OF THE NATIONAL SECURITY AGENCY
DIRECTOR OF THE DEFENSE INTELLIGENCE AGENCY

SUBJECT: Creation of an Interagency Atrocities Prevention Board and Corresponding Interagency Review

Preventing mass atrocities and genocide is a core national security interest and a core moral responsibility of the United States.

Our security is affected when masses of civilians are slaughtered, refugees flow across borders, and murderers wreak havoc on regional stability and livelihoods.  America’s reputation suffers, and our ability to bring about change is constrained, when we are perceived as idle in the face of mass atrocities and genocide.  Unfortunately, history has taught us that our pursuit of a world where states do not systematically slaughter civilians will not come to fruition without concerted and coordinated effort.

Governmental engagement on atrocities and genocide too often arrives too late, when opportunities for prevention or low-cost, low-risk action have been missed.  By the time these issues have commanded the attention of senior policy makers, the menu of options has shrunk considerably and the costs of action have risen.

In the face of a potential mass atrocity, our options are never limited to either sending in the military or standing by and doing nothing.  The actions that can be taken are many    they range from economic to diplomatic interventions, and from non combat military actions to outright intervention.  But ensuring that the full range of options is available requires a level of governmental organization that matches the methodical organization characteristic of mass killings.

Sixty six years since the Holocaust and 17 years after Rwanda, the United States still lacks a comprehensive policy framework and a corresponding interagency mechanism for preventing and responding to mass atrocities and genocide.  This has left us ill prepared to engage early, proactively, and decisively to prevent threats from evolving into large scale civilian atrocities.

Accordingly, I hereby direct the establishment of an interagency Atrocities Prevention Board within 120 days from the date of this Presidential Study Directive.  The primary purpose of the Atrocities Prevention Board shall be to coordinate a whole of government approach to preventing mass atrocities and genocide.  By institutionalizing the coordination of atrocity prevention, we can ensure:  (1) that our national security apparatus recognizes and is responsive to early indicators of potential atrocities; (2) that departments and agencies develop and implement comprehensive atrocity prevention and response strategies in a manner that allows “red flags” and dissent to be raised to decision makers; (3) that we increase the capacity and develop doctrine for our foreign service, armed services, development professionals, and other actors to engage in the full spectrum of smart prevention activities; and (4) that we are optimally positioned to work with our allies in order to ensure that the burdens of atrocity prevention and response are appropriately shared.

To this end, I direct the National Security Advisor to lead a focused interagency study to develop and recommend the membership, mandate, structure, operational protocols, authorities, and support necessary for the Atrocities Prevention Board to coordinate and develop atrocity prevention and response policy.  Specifically, the interagency review shall identify:

operational protocols necessary for the Atrocities Prevention Board to coordinate and institutionalize the Federal Government’s efforts to prevent and respond to potential atrocities and genocide, including but not limited to:  identifying (standing and ex officio) members of the Atrocities Prevention Board; defining the scope of the Atrocity Prevention Board’s mandate and the means by which it will ensure that the full range of options and debate is presented to senior-level decision makers; identifying triggers for the development of atrocity prevention strategies; identifying any specific authority the Atrocities Prevention Board or its members should have with respect to alerting the President to a potential genocide or atrocity;
how the Intelligence Community and other relevant Government agencies can best support the Atrocities Prevention Board’s mission, including but not limited to:  examining the multiplicity of existing early warning assessments in order to recommend how these efforts can be better coordinated and/or consolidated, support the work of the Atrocities Prevention Board, and drive the development of atrocity prevention strategies and policies; examining options for improving intelligence and open source assessments of the potential for genocide and mass atrocities; and examining protocols for safely declassifying and/or sharing intelligence when needed to galvanize regional actors, allies, or relevant institutions to respond to an atrocity or genocide; and
steps toward creating a comprehensive policy framework for preventing mass atrocities, including but not limited to:  conducting an inventory of existing tools and authorities across the Government that can be drawn upon to prevent atrocities; identifying new tools or capabilities that may be required; identifying how we can better support and train our foreign and armed services, development professionals, and build the capacity of key regional allies and partners, in order to be better prepared to prevent and respond to mass atrocities or genocide.
In answering these questions, the interagency review shall consider the recommendations of relevant bipartisan and expert studies, including the recommendations of the bipartisan Genocide Prevention Task Force, co-chaired by former Secretaries Madeleine K. Albright and William Cohen.

I direct the National Security Advisor, through the National Security Staff’s Director for War Crimes and Atrocities, to oversee and direct the interagency review, which shall include representatives from the following:

Office of the Vice President
Department of State
Department of the Treasury
Department of Defense
Department of Justice
Department of Homeland Security
United States Mission to the United Nations
Office of the Director of National Intelligence
Central Intelligence Agency
United States Agency for International Development
Joint Chiefs of Staff
Peace Corps
National Security Agency
Defense Intelligence Agency

Executive departments and agencies shall be responsive to all requests from the National Security Advisor-led interagency review committee for information, analysis, and assistance.

The interagency review shall be completed within 100 days, so that the Atrocities Prevention Board can commence its work within 120 days from the date of this Presidential Study Directive.

BARACK OBAMA

GCR2P Welcomes the US Government’s Announcement on Mass Atrocity Prevention

Global Centre for the Responsibility to Protect
4 Aug 2011

The Global Centre for the Responsibility to Protect welcomes today’s announcement by the White House of a presidential directive on preventing atrocities. The decision of the Obama Administration to establish an inter-agency Atrocity Prevention Board is an important step that reflects the commitment of the government and the people of the United States to strengthen capacities to halt genocide, crimes against humanity, war crimes and ethnic cleansing. This decision is an important step in putting the responsibility to protect into practice and moving “never again” from rhetoric to reality.

“The Global Centre applauds the directive of President Obama in establishing this board. We see its establishment as crucial in advancing the Responsibility to Protect agenda internationally, and in making the promise of ‘Never Again’ a reality. In a world where innocent civilians continue to be at risk of mass atrocity crimes, we believe that this decision will play an important role in preventing another Rwanda, Cambodia or Srebrenica,” said Simon Adams, Executive Director of the Global Centre for the Responsibility to Protect.

—

The Global Centre for the Responsibility to Protect was created in February 2007 to catalyze action to move the 2005 World Summit agreement on the responsibility to protect populations from genocide, ethnic cleansing, war crimes and crimes against humanity from principle into practice. See website: www.globalr2p.org/

Handing Qaddafi a Get-Out-Of-Jail-Free Card

Originally published in the International Herald Tribune
By Richard Dicker, 1 Aug 2011
When the United Nations Security Council unanimously referred the situation in Libya to the International Criminal Court prosecutor on Feb. 26, it made clear that impunity for crimes against humanity threatens international peace and security. The referral sent a strong message that systematic attacks with deadly force against peaceful protesters have criminal consequences.
Now, the governments that took the lead in the 15-to-0 Security Council vote — Britain, France and the United States — seem to be negotiating a deal that, if it goes through, would short-circuit justice by sidelining the court’s proceedings for victims in Libya.
Britain’s foreign secretary, William Hague, said recently that it was important for Muammar el Qaddafi, the Libyan leader, to relinquish all power, but that after that: “What happens to Qaddafi is ultimately a question for the Libyans.” This turnabout is enough to set even the nimblest diplomatic head spinning.
After setting the wheels of justice in motion, all Security Council members — and these three countries in particular — should be reaffirming the message that impunity is no longer an option, instead of proffering a get out of jail free card to end a military stalemate. Amnesty for mass atrocities, whether explicit or de facto, has no legal validity internationally.
Fortunately, we have moved past the point where governments can offer immunity to people implicated in serious international crimes. Indeed, the Security Council’s unanimous referral of the situation in Libya to the International Criminal Court reflects its choice to hold international criminals accountable, including senior officials.
On June 27, three judges at the I.C.C. issued arrest warrants for Qaddafi, his son Seif al-Islam Qaddafi, and Libya’s intelligence chief, Abdullah Senussi. They are wanted on charges of crimes against humanity for their roles in attacks on civilians, including peaceful demonstrators, in Tripoli, Benghazi, Misurata, and other Libyan cities and towns.
These warrants were an important step toward providing justice for the victims of the serious crimes in Libya.
Now that there is an independent international judicial process in place the process should be allowed to play out. Moreover, the I.C.C. prosecutor should apply the law impartially and investigate alleged crimes by the Libyan rebels as well as any committed by NATO forces. It is simply too late to turn back the clock.
An offer of amnesty to an accused sitting head of state can make the situation a lot worse by sending a signal that there will be no cost for slaughtering as many people as possible in the effort to cling to power. If more brutality works, the leader is home free. If it doesn’t keep him in power, there’s no penalty for having tried. This is an awful message to abusive leaders around the world — if they hang on long enough, tiring out the opposition forces, all will be forgiven.
While Qaddafi cannot be granted a formal amnesty for serious crimes committed in Libya, diplomats may be thinking of using a possible escape hatch contained in the I.C.C.’s treaty. Under Article 16 of the I.C.C. Statute, the Security Council may, citing the needs of international peace and security, defer the proceedings against Qaddafi for 12 months. This truly unfortunate provision authorizes political interference in a judicial proceeding, and it should be used only in exceptional circumstances.
Since a suspension under Article 16 is limited to a renewable 12-month duration, if the Security Council granted a deferral there would be enormous pressure to renew it after a year and then again at the expiration of each succeeding year. This would spawn the ugly optic of Security Council members voting each year for continued immunity for Qaddafi.
Of course, a deferral of an I.C.C. investigation also risks setting a dangerous precedent for accused senior officials from other countries. By effectively bartering away accountability for the most serious crimes under international law, the Council would be encouraging all those alleged to be responsible for major atrocities to negotiate, as Qaddafi is now attempting to do, to void the rule of law. Indeed, a deferral for Qaddafi may lead other accused war criminals such as President Omar Hassan al-Bashir of Sudan to renew his claim to suspend the I.C.C. warrant against him for crimes committed in Darfur.
In addition to renouncing judicial principle and creating a troubling precedent, a plan that gives Qaddafi a comfortable retirement (inside or outside of Libya) is short-sighted. Qaddafi, who holds no official government post and exercises enormous power through his presence, would remain a destabilizing figure, and the Libyan people would probably not feel free from fear and intimidation. Moreover, effectively amnestying the top leaders would also make it difficult, if not impossible, to prosecute anyone else in the regime for crimes committed there over 40 years of Qaddafi’s rule.
In the short-term, it is easy to understand the temptation to forego justice in an effort to end an armed conflict. But instead of putting a conflict to rest, a de-facto amnesty that grants immunity for crimes against humanity may just spur another cycle of grave abuses while failing to bring peace.
Richard Dicker is the international justice director at Human Rights Watch.