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 Iva Vukusic (The Hague) 

Now that the last of the fugitives has been arrested, the International Criminal Tribunal for the Former Yugoslavia (ICTY) faces a calmer future. Two trials, those of the two most recent suspects to arrive to The Hague have yet to begin and several judgments will be rendered both in the first instance and on appeal. Then, maybe in five years or so – when all the trials are completed – the ICTY will go down in history as one of the most successful international institutions dealing with war crimes. 

Eighteen years ago, images of attacks on civilians in Sarajevo, camp detainees in western Bosnia and ethnic cleansing on a massive scale caused a shift in public opinion and political will resulting in a new institution being born – one like no other before. Back then no one knew how successful it might be.

If you asked those involved in the early stages of the Tribunal’s work if all its suspects will one day be arrested, few would have probably answered affirmatively. Yet, all of them have been arrested. No other judicial institution can claim the same success.

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Ex-President Mubarak appeared in Court, caged and bed-ridden, on 3rd August 2011 charged with corruption and the murder of over 840 protesters. His trial was adjourned and will re-open on Monday 15th August 2011. If found guilty, Mubarak may face the death penalty.

Murder Charges Against Mubarak

The murder charges against the former President are primarily based on accusations that he ordered the Police, as their Supreme Commander, to use lethal force. The prosecution has given itself a high burden of proof, but they appear to be confident of meeting it. In particular, the Former Interior Minister stated in interrogation that Mubarak gave orders to use live ammunition against protestors American Library of Congress. The Court may also rely upon (an analogy with) the International Law of Command Responsibility, in particular the liability of a Head of State for Policy Command. This now “well established” doctrine attributes responsibility for both positive acts and for omissions, including failure to prevent or punish crimes that the individual knows or ought to know are likely to be, or to have been, committed (see the Čelebići judgment, judgment of 16th November 1998 at para. 333).

However, many of the murders that are ultimately attributed to Mubarak were reportedly committed by his armed supporters who were not part of organised military units, let alone members of the Armed Forces. These militiamen are likely to have simply taken matters into their own hands, rather than carrying out express orders. Applying the standards of Command Responsibility, it would be difficult to say that these groups were under the legal or effective control of the former President. However, it may be possible to prove that Mubarak incited the killings. Indeed, the Arab Centre for the Independence of the Judiciary and the Legal Profession has allied itself with a number of other Arab Human Rights Groups to call for the prosecution of the Minister of Mass Media for the use of the Egyptian media to incite violence against protesters.

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

It is now 4 months since the Operation Odyssey Down (as named by the US), Operation Harmattan (as named by the French), Operation Ellamy (as named by the UK), and Operation Mobile (for the Canadians) has started enforcing on Libya the UNSC Resolution 1973 that authorises, among others, a no-fly zone over Libya, freezing of assets, enforcement of an arms embargo, ban on flights, and all other necessary measures to protect innocent civilians. Recent predictions are being heard about Muammar Gaddafi’s readiness to cede power (see The Telegraph, 12 July 2011). However, since this was a statement that he said three days after it had been reported about his warning to attack Europe (The Telegraph 09 July 2011), the optimism is far from real. The hard truth that he will have to face is nonetheless his days are numbered as the opposition gets emboldened by every single day as the backing by the international community intensifies.   And it is reasonable to make notes, on the basis of ‘if it happens’, about the issues of transition to a new dawn for Libya.

One critical decision that befalls the Libyan public and the transitional government would be issues relating to how to deal with those individuals responsible for so much atrocity and in holding them to account. That task would either make or break the momentum, legitimacy and sustainability of the leaders of the opposition who would temporarily be running the nation. The Libyan military, unlike what we saw in Egypt, is not an organ on whose hands the transitional government power could be placed for the very reason that it is killing the Libyan people that it was supposed to protect in these trying days. If one ventures on possible ‘whys’ behind the success of the Egyptian popular uprising, the military personnel’s wisdom, self-imposed restraint, and progressive thinking on impartiality of the military as a public institution must come as part of the list of those reasons. Obviously this by no means puts the Egyptian military personnel in general in complete innocence as there had been over 900 reported deaths that happened during that revolution as well. On balance, however, what we see in Libya compared to Egypt is a complete opposite.

Forgetting or facing the past

Acknowledging the undesirability of ‘let’s try to forget it’ type of approach as a categorical position must be the starting point. It is never possible to cover up these horrendous violations no matter how clever we are in convincing the public that revenge is of no good for the future. Even if people may be told to forgive, forgetting is not that simple and those wounds will eventually fester with a renewed momentum of anger, desires for retribution and dire need for re-establishing the lost dignity. Thus, there has to be a consensus on the relevance of facing the past rather than trying the impossible, which is to forget it.   

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By Natasha Harrington, pupil barrister (Essex Court Chambers, London)

On 27th June 2011, the Pre-trial Chamber of the International Criminal Court (ICC) issued arrest warrants for Muammar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi (see here). The Court found reasonable grounds to believe that the three have committed crimes against humanity by murder contrary to article 7(1)(a) and persecution of opponents to the Gaddafi regime contrary to article 7(1)(h) of the Rome Statute.

Muammar Gaddafi has become the second serving head of state, following President Al-Basheer of the Sudan, to face prosecution by the ICC, where state officials are not immune from prosecution. Libya is not a State Party to the Rome Statute. Therefore, the jurisdiction of the Court is based on United Nations Security Council Resolution 1970, referring the situation in Libya to the ICC as of 15th February 2011, in accordance with article 13(b) of the Rome Statute.

In contrast, no investigation or charges have been brought against any members of the National Transitional Council (NTC), despite a report from the U.N. High Commissioner for Human Rights that cited evidence of serious abuses by NTC forces. Nevertheless, Gaddafi has made clear his intention to use the Libyan State courts for this purpose, and to try the NATO member states for war crimes.

Justice 1: 0 Peace?

If Gaddafi and his close associates do not relinquish power and slip away it may take NATO and the NTC many more weeks and months to remove them, and in the process Libyan civilians and the unity of their country will suffer the most. Many are now questioning whether the ICC arrest warrants are a triumph for justice at the expense of peace because, in the words of the Italian Foreign Minister, once a warrant is issued ‘from that moment on an exit from power or from the country will no longer be imaginable’.

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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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