ICC Issues Arrest Warrant for Gadhafi

By R. Renee Yaworsky
Senior Desk Officer, Middle East

Col. Gadhafi (Photo courtesy of Globe and Mail)
Col. Gadhafi (Photo courtesy of Globe and Mail)

TRIPOLI, Libya—Colonel Moammar Gadhafi has been accused of “crimes against humanity.”  On Monday, International Criminal Court (ICC) prosecutor Luis Moreno-Ocampo asked judges to issue the indictments against Gadhafi.  It has not even been two months since Gadhafi’s file was opened at the request of the United Nations Security Council, making this the quickest probe of its kind.

Moreno-Ocampo accused Gadhafi of “commit[ing] crimes with the goal of preserving authority,” using snipers to gun down protesters, encouraging violence against civilians and sending tanks into cities.  He also alleged that the leader ordered attacks on innocent civilians in their own residences, at funerals, and as they left religious services.   Gadhafi’s son, Saif al-Islam, and intelligence chief Abdullah al-Sanoussi were also accused of participation in the Colonel’s reign of terror.  The ICC believes that these 3 men bear the most guilt for “widespread and systematic attacks” against Libyan citizens.

NATO allies have celebrated the arrest warrant against Gadhafi.  Canada’s government issued a statement displaying its support of the ICC “in its efforts to ensure that justice is served and to show the world that crimes perpetrated by the Gadhafi regime will not be tolerated.”  Guma el-Gamaty of Libya’s Interim National Council stated that the acts of the ICC are “a very important step along the way to putting more pressure on Gadhafi and his son to leave or face arrest.”

Others remain skeptical that the ICC arrest warrant will be powerful enough, citing examples where war criminals have evaded justice (such as in the case of Sudanese President Omar al-Bashir who remains free to travel even after the ICC issued him a similar warrant).  Human rights defenders have been supportive of the ICC but stress the need for other war criminals to be held accountable as well.

Michael Bochenek of Amnesty International explained, “The request for arrest warrants is a step forward for international justice and accountability in the region.  [But] by any standard, what is happening in Syria is equal to, if not worse than, the situation in Libya when the Security Council referred that country to the ICC.”

One of Gadhafi’s spokesmen ridiculed the accusations against the Libyan leader and pointed out the fact that Libya was not a signatory to the ICC. Libyan Deputy Foreign Minister Khalid Kaim dismissed the ICC as a “baby of the European Union designed for African politicians and leaders” with “questionable” practices.

For more information, please see:

Tripoli Post-ICC Seeking Warrant for Al-Qathafi and Two Other Family Members ‘For Crimes Against Humanity’-16 May 2011

BBC-Libya: Gaddafi ICC arrest warrant raises questions-16 May 2011

NPR-UN Prosecutor Calls For Gadhafi Arrest Warrant-16 May 2011

Globe and Mail-Warrants for Gadhafi could jeopardize possible exile deals-16 May 2011

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