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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By Jasper Doomen, Lecturer in Law, Leiden University

Enforcement is a crucial aspect of legislation. Once international legislation is inquired with this in mind, one is faced with several difficulties. One particular issue that merits attention is the meaning of the rules that parties are supposed to take into consideration in a state of war.

A traditional way to characterize the norms that govern the laws of war is that between ‘ius ad bellum’ (the right to engage in war) and ‘ius inbello’ (the law of armed conflict, i.e., the right which applies in a state of war). At first sight, these notions may seem unproblematic, at least semantically, as they would simply seem to refer to the rules that determine, respectively, the circumstances under which one is absolved from the accusation of belligerence and those that stipulate how one should act once a state of war is a reality. Serious problems emerge, however, once the status of these rules is critically examined.

In qualifying certain acts as conflicting with ‘ius inbello’, one wonders to what such a phrase amounts. ‘Ius in bello’ implies the possibility to judge whether the rules in a state of war have actually been observed, which, in turn, implies the existence of an authority that is to act as the court of justice. The problems with such a stance are twofold.

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By Dr Olga Martin-Ortega (University of East London, Centre on Human Rights in Conflict) and Iva Vukusic

Over 300 participants; academics, practitioners, ICTY judges, prosecutors, defense lawyers as well as representatives of national judiciaries gathered in The Hague last November to examine the global legacy of the International Criminal Tribunal for the former Yugoslavia (ICTY). The discussions throughout the conference, organized by the ICTY, were self-congratulatory, lacking in constructive criticism.

This was an opportunity to take stock of all the achievements of the ICTY, accomplishments made at times against all odds. Today, this is a court that has no fugitives left, it has conducted proceedings in relation to 161 persons and, little by little, it is approaching the end of its mandate. Two more trials, for the last fugitives caught – Ratko Mladic and Goran Hadzic are yet to begin.

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By Belachew Mekuria Fikre, Addis Ababa University Centre for Human Rights

Much credit seems due to the NATO force in Libya’s eight months liberation movement which had lost not even a single life in the eight months fight of ousting the Libyan dictator. No doubt that the strict enforcement of the no-fly zone had significantly augmented the rebels’ strength in digging deep into the strong holds of the Libyan army. Countless Libyans have dearly sacrificed their lives and stood shoulder to shoulder until they scored that decisive victory on 12 Oct, 2011 by killing the 69 year old dictator Muammar Gaddafi. History is being written in the minds and hearts of the living, and future generation, of course by the blood of those who had lost their lives selflessly.

Truth must be told that the victory that the Libyan public is yet to cherish has come through the agency and sacrifices of the same Libyans. The acknowledgement of this fact is of paramount importance both for the past, the present and future fate of the country. The past must benefit from the true records of history so that the martyrs to be remembered for posterity; while the present must be permeated with that sense of victory and ownership so as to remain empowered for what is to happen right now; well the future, that is what all the sacrifices are meant for, to ripe the benefits of lasting peace, democratic governance and the rule of law.

This fact is all the more decisive in providing the required morale for those who are yet to write their own history by ousting their dictators single-handed. It must be acknowledged a united public motivated by the thirst for just social order would be stopped by no earthly force. And what the Libyans did was clearly opposing the ‘right of might by the might of right.’ This belief and achievement, I suspect, would largely be undermined where a higher credit is made to go to the external and aerial force that only operated from above in facilitating the road to Benghazi, Misrata, Sirte, Tripoli, etc. Underscoring the role of MI5 and MI6 agents, or the Canadian or French veterans’ role in whose name a celebration is to be held, celebrating the US secretary of state’s diplomatic calibre and her president’s exceling ability in discharging his role as commander in chief, only reveal the blind-folded rush to regard the victory solely to be that of the coalition force. We listen to the news that primarily discusses how the killing of Gaddafi would boost the polls of the presidential candidates in the upcoming elections in France and the US.

Acknowledging the super powers’ role

It is not my desire to usurp the credits that must duly go to the US that played the initial and defining role towards enforcing the no fly-zone resolution and the NATO force that took over full control of the mission a week after the start of the operation and oversaw it through till the end. That had significantly reduced the risks of civilian massacre that Gaddafi was dangerously disposed to carry out, and solidified the rebels’ determination to get rid of the regime.

They enabled the rebels to corner Gaddafi and put him within a bullet reach to finally watch the august autocrat plead for mercy from the very people whom he had defiantly called rats and infidels. And to his misfortune, those who had him captive emoted more than they reasoned under the circumstances as we saw his last moments on the global media outlets. That possibility would have hardly materialised in time if it were just the liberation forces that were left to face the mighty hands of Gaddafi’s military, mercenaries and those supporters who were highly intoxicated by hate against the liberation forces that Gaddafi managed to saw. Acknowledging that is important in many respects but above all for the symbolism it embodies for others to observe that the international community would not remain as an inactive on-looker in the face of impending genocide. For that no doubt the Libyan people must extend their effusive gratitude and recognition.

A need for recording history

The Egyptians, after the forced resignation of Hosni Mubarak on 11 Feb 2011, instituted a Committee to Document the 25th January Revolution. The task of recording peoples’ power for posterity by the people themselves who have done the history is crucially needed for Libya and Libyans. The capture of Saif al-Islam (the sword of Islam) and Abdullah al-Senussi marks a significant leap forward to the end of the Libyan liberation struggle. Saif’s statement about his wounds on his hand as being inflicted by the NATO air strike a month ago explicates the card he wishes to play by blaming the West. He consistently defies acknowledging the ICC’s jurisdiction and showed now his preference to his home-based justice, or so it appears. The capture of these two prominent figures of the former regime some 19 days after NATO’s engagement officially came to an end discloses the salience of the NTC force and new Libya that started the revolution and also reveals its capability to sustain that victory.

It is now an opportune time to start piecing events together for the purpose of recording history that the Libyans have written, and the sacrifices that have been paid by the death of over 30,000 people. Unlike Egypt and Tunisia, in Libya there had been an external involvement of a new sort that only provided an aerial support to cripple Gaddafi’s military capabilities. That requires due recognition in writing the history of the Libyan revolution. History provides the groundwork that enables the present and future generation to march forward through a rightful path by avoiding the wrongful turns of the past. Accordingly, those recordings must establish a balanced account about the proper owner of the victory and the invaluable contributions made by the outside forces.

By Belachew Mekuria Fikre, Addis Ababa University Centre for Human Rights

The tasks ahead, apart from sealing the protracted success stories by apprehending Gaddafi who symbolises tyranny in Libya and the region, relates to state building, disarmament and inter-communal reconciliatory dialogues. The last days of Gaddafi’s rule amassed the nation with weapons so that supporters could hunt down the ‘rats’ and the ‘infidels’, who are, for the majority of the Libyan public, the liberators. The dictator also had made last minute attempts to instil hatred, animosity and tribal differences among the community.

On the other hand, the liberation force is staffed with voluntary youth soldiers without any prior experience and training on combat. Accordingly, it is all the more challenging to disarm and demobilise this group of fighters by the NTC.

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By Belachew M Fikre, Lecturer at Addis Ababa University, Institute of Human Rights

The European Court of Human Rights (ECtHR) has given on the 7th July 2011 a judgement (Al-Jedda case) holding the United Kingdom responsible for the acts of its military forces in Iraq in what may be called a significant blow to the ever unchecked multinational military operations under the names of maintaining international peace and security, war on terror, or as recently emerging dubious guise ‘to protect civilians and civilian populated areas under threat of attack.’

The case (Al-Jedda v the United Kingdom, available here) involved an Iraq-born individual who had been interned or detained in Basra for over three years, between 2004 and 2007. Basra internment centre was controlled and run by the British forces in Iraq and he was held for purposes of investigation on his alleged involvement, among others, in recruiting terrorists outside Iraq to commit atrocities in Iraq, for helping an identified terrorist explosives expert travel into Iraq, and conspiring with that explosives expert to conduct attacks with improvised explosive devises against coalition forces near Fallujah and Baghdad. 

After his release (and being denied re-entry into the UK to which he had become a national), Al-Jedda had brought actions, though unsuccessfully, before various national organs until his case was dismissed by the House of Lords which reiterated that because of the UN Security Council’s (UNSC) Resolution, the British government’s responsibility under the European Convention on Human Rights (ECHR) cannot be invoked. The House of Lords reasoned that the mandate the UNSC Resolution 1546 had placed on the UK government brings the UN as the proper organ responsible for the internment measures taken on Al-Jedda which, because of Article 103 of the UN Charter displaced the applicability of Article 5(1) of the ECHR. According to Article 103 of the UN Charter ‘in the event of conflict between the obligations of the members of the UN under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’

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By Belachew M Fikre, Lecturer at Addis Ababa University, Institute of Human Rights

The current web of popular uprisings challenging authoritarian rules in North African states (Tunisia, Egypt, Libya to cite but three) and in the wider Arab world revitalises transitional justice mechanisms as tools of addressing past wrongs. While former president of Egypt Hosni Mubarak has already been charged with various crimes, president ben Ali is also due to be brought to justice very soon. And no doubt Colonel Muammar Gaddafi Gadhafi together with his family aides would follow suit.

Transitional justice implies the presence of both transition from authoritarian rule to democracy and the rendition of justice as a sign for renewed future. Thus, it presupposes both ‘political change’ and ‘legal responses to confront the wrongdoings of repressive predecessor regimes (Tietel 2003, p69).

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