Disappointed in justice

December 2, 2013

By Iva Vukusic, researcher, Sense Agency, the Hague

As teams of forensic experts and investigators near Prijedor dig through what is claimed to be the biggest mass grave in Bosnia and the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague slowly progresses towards closure, a sense of disappointment spreads among many victim communities and long term court supporters.

At a recent Tribunal legacy conference in Sarajevo, as the ICTY president and former NYU School of Law professor Judge Theodor Meron spoke, many victims turned their heads away in protest of the recent acquittals in important leadership cases and what they see as a change of course at the Tribunal. The next day, the ICTY press release didn’t even mention this act of dissatisfaction and that is a shame.

The Tribunal apparently declines the opportunity to hear out those it allegedly serves – among them victims and witnesses, survivors of what was the worse carnage in Europe after the Second World War. Human rights activists, academics, researchers and journalists who have for years been the greatest champions of the need to fight impunity are now being shun by the institution they supported, often in difficult circumstances in the societies of the former Yugoslavia.

Why is this happening? Why have the biggest supporters of the Tribunal, and among them many victim associations, decided to become much more vocal about what they see as significant damage to seeking accountability, providing a measure of justice to victims and developing law and jurisprudence which will influence cases at other international tribunals for years to come?

The problems emerged after a few recent cases, primarily Gotovina and Perisic, in which high ranking officials from Croatia and Serbia were acquitted on appeal for crimes they were previously sentenced for, often with long term prison terms. A lot of the criticism is aimed at judge Meron because he heads the Tribunal but more importantly, he presided over the appeals chambers that acquitted those individuals. One acquittal was controversial because of dissents being worded in exceptionally strong language.

However, it’s not only about these cases. Clearly, not all trials can and should end with a conviction – the fact that acquittals happen can be understood to prove the fairness of the system. Individuals should be acquitted or convicted based on the strength of evidence and arguments and not by outside considerations such as the impact this might have on victims or the societies concerned. Crucially though, sometimes there is no agreement at all and judges on the same panel view the evidence and the arguments in a completely different manner. This leads to judgments that are often not understood by the victims or the public.

Occasionally, judges at other courts reject the standards used to acquit at the ICTY (as was the case recently in the Charles Taylor judgment) and there is no explanation – the victims and the public in the former Yugoslavia are left to try and figure it out on their own.

As a rule, judges never comment on their decisions stressing that ‘they speak through their judgments’. But law is complicated and ordinary citizens often don’t understand the details that led to the acquittal of someone who was previously sentenced to twenty or more years in prison. No one engages with them and hears them out when they object. Law is not always clearly set and many issues are being defined and there should be a greater sense of responsibility at international tribunals towards the public they were designed to serve. If the Tribunal is being criticized, the least it can do is hear the people out, respect their views and not treat them as only passive receivers of justice that have to be grateful for whatever they get.

Many questions remain unanswered at the ICTY: why weren’t the concerns the Danish judge Frederik Harhoff expressed in his letter that was leaked to the press about possible irregularities in the decision making process at the Tribunal addressed properly? Why are the defendants almost always released after serving 2/3 of the sentence? The victims, the survivors and the hundreds of individuals that testified in those cases have a right to know.

Things are gloomy these days in the fight for accountability in the former Yugoslavia. The Seselj case where the accused is a Serbian nationalist and political leader and where Harhoff was serving as a judge before being disqualified for bias after the letter leaked is in danger of not coming to an end with a judgment. The European Court of Human Rights ruled that the Bosnian State court, for years hailed as a good example in domestic war crimes prosecution applied the wrong criminal code, violating the rights of the accused. As a consequence, individuals convicted for genocide have been released and new trials must take place. This has a potential of slowing down the already slow process of rendering a measure of justice to victims.

Through all this, almost no one from these institutions engages with the victims and the broader public about these events; no one asks for their opinion and there is nothing they can do but threaten not to testify in upcoming cases, as some of them have done. At institutions that exist for seeking accountability – there is almost no accountability. Justice is being rendered far from those it was supposed to serve without ever giving them the right to even the minimum – to get their questions answered.

By Professo Nicolás Zambrana-Tévar, Study Group of Private International Law and Human Rights, University of Navarra

The first Spanish judicial decision sentencing a person for the crime of Genital Mutilation carried out outside Spain was issued last 4 April, 2013 by the Spanish Audiencia Nacional of Madrid.

The Spanish Criminal Code was amended in 2003 (art. 149.2) and a new offense was introduced, namely genital mutilation (male and female). Furthermore, the Spanish jurisdiction statute was amended in 2005 in order to give Spanish courts extraterritorial jurisdiction to allow them to hear cases on Female Genital Mutilation (article 23.4). So far, several cases of FGM have already been heard in Spain but only one has reached the stage of oral proceedings, finishing with a sentence of six years for the father and two years for the mother of the mutilated girl. In December, 2012, the Spanish Supreme Court confirmed the latter sentence issued by the Teruel Court of First Instance. In May, 2013, another couple from Gambia who lived in Vilanova i la Geltrú (Catalonia) was also sentenced to 12 years in prison for having performed FGM or allowed FGM to have been performed upon her two daughters.

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By Nicolás Zambrana-Tévar, Professor (Private International Law), University of Navarra

The recent death of over a thousand workers in a textile factory in Bangladesh necessarily poses again the question of the responsibility of multinational businesses, not for the harm they cause –which may indeed be big, in some cases- but because of what they do not do. Delocalization of production, taking it from North-America or Western Europe to developing countries, has ethical implications, for several reasons: in the first place, there are job losses in the “first world” (and also jobs created outside that world); in the second place, one must take into account that that delocalization is made, many times, not by locating factories outside the country of origin of the multinational, where the production is still under the business control of the aforementioned multinational, but by making a commercial agreement with local providers who will manufacture the products or their parts, so they can afterwards be distributed under a Western brand and the well known “Made in Thailand” trademark. This second option is much more profitable sometimes.

The problem lies in the fact that manufacturers-providers, in this case from Bangladesh, are only bound by Bangladeshi laws, which are much less protective of workers or the environment than, for instance, the laws of Canada, France or Germany. Read the rest of this entry »

By Edward Phillips, Principal Lecturer, Law School, University of Greenwich

The Arctic Council was set up in 1996, following on from the Ottawa Declaration, and compromises the States who border the Arctic Circle: Canada, Denmark (Faroe Islands and Greenland), Finland, Iceland, Norway, Russia, Sweden and the USA. In addition, there are also a number of so-called Permanent Participants (representing the Arctic Indigenous Peoples i.e. the communities with a vested stake), including: the Arctic Athabaskan Council, the Aleut International Association, the Inuit Circumpolar Council, the Russian Arctic Indigenous Peoples of the North and the Saami Council. There are also a number of non-member States, who enjoy observer status, including: France, Germany, the Netherlands and the UK.

At stake

The particular interests of these States / Participants are obvious, including environmental protection, resource exploitation and the concomitant advantages following on from the utilisation of the Arctic Sea routes. As far as the latter is concerned, the opportunities are manifest. The savings in costs and time to commercial shipping have been well documented[1]. Moreover, maritime security is a further factor of concern and this has been a cause of concern for NATO and its often troubled relationship with Russia.

All the factors above have led to a growing interest from those States whose Arctic Circle connections may not, at first sight be obvious. An obvious example is China, with its increased maritime role in both commerce as well as the maritime security. Similarly, States such as Singapore and India have long agitated for their interests to be represented. Read the rest of this entry »

By Francisco J. ZAMORA CABOT, Professor of Private International Law at the University Jaume I, Castellon, Spain.

The issue of extraterritoriality is currently envisaged as one of the keys to the resolution of the well-known and crucial Kiobel case, before the Supreme Court of the United States, which we are expecting any time now. However, the Alien Tort Claims Act (ATCA) has nothing to do with extraterritoriality. That legislative text and its judicial practice must be maintained in the field of international torts on human rights, they are special illegal acts that have to be solved through the interplay of the Conflicts of Laws and Public international law. In no way, that legal text and its practice portray an imperialistic position on the part of the United States in front of other States, or an excess of jurisdiction vis-a-vis the Law of Nations. Quite simply, the attempt to place ATCA out of its scope should be rejected, and has to be considered as mischievous and/or arbitrary.

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By Rebecca M.M. Wallace (Professor of International Human Rights and Justice, Robert Gordon University, Aberdeen, UK) and Karen Wylie (Research Assistant, Robert Gordon University, Aberdeen, UK)

The principle of the best interests of the child is enshrined in international law by Article 3 of the 1989 UN Convention on the Rights of the Child (UNCRC). Similarly the right to family life is protected by Article 8 of the European Convention on Human Rights (ECHR). In June 2012, in the case of BH (AP) (Appellant) and another v The Lord Advocate and another (Respondents) (Scotland) KAS or H (AP) (Appellant) v The Lord Advocate and another (Respondents) (Scotland) Trinity Term [2012] UKSC 24, On appeal from: [2011] HCJAC 77 (hereafter referred to as BH), the UK Supreme Court had to consider the weight to be given to these principles in the context of the extradition of a couple to the US and the effect this would have on their children.

Very briefly, the charges against the couple, Mr and Mrs H, were conspiracy and unlawful importation into the US of chemicals used to manufacture methamphetamine in the knowledge of, or having even cause to believe, that they would be used for that purpose. Mrs H is the mother of six children whose ages ranged, at the time of the case, from 14 to one year. Mr H is the father of the four youngest children. The Supreme Court acknowledged that the children’s interests would be interfered with, at least to some degree, by the extradition of either parent, and if both parents were to be extradited the effect on the family life of the children would be “huge”. The issue confronting the Supreme Court was the weight to be given to the children’s best interests, and whether on considering these best interests, the extradition of both parents, or either of them, would be proportionate. In assessing the parents’ case the Court relied heavily on a previous case, ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011), in which the weight to be given to the best interests of a child who faced the removal of one of his parents from the UK, was discussed at length.

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By Iva Vukusic, The Hague

 

The Appeals Judgment

 

‘I fundamentally dissent from the entire Appeal Judgment, which contradicts any sense of justice’# is what judge Fausto Pocar, one of the five appellate judges in the Gotovina and Markac trial at the International Criminal Tribunal for the former Yugoslavia (ICTY), states in his Dissenting opinion (paragraph 39). That harsh statement, along with others in the Opinion, indicates just how significant the differences were between the judges’ interpretations during the deliberations on the responsibility of Croatian generals Ante Gotovina and Mladen Markac, sentenced by the Trial Chamber in April 2011 to 24 and 18 years of imprisonment, respectively, for taking part in a joint criminal enterprise the objective of which was the permanent removal of the Serb population from the Krajina region #. The events took place during and after Operation Storm conducted by the Croatian Military and Police forces in August 1995.

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