Saturday, November 7, 2009
The International Criminal Court announced this week that the war crimes trial of Jean-Pierre Bemba Gombo will begin in April 2010. Mr. Bemba, the former Congolese Vice President, faces charges for alleged crimes committed in the Central African Republic (CAR) between October 2002 and March 2003, including rape, murder and pillaging.
Judges at the Hague-based ICC found that Mr. Bemba had the “necessary criminal intent” when in 2002 he ordered his armed group, the Mouvement de libération du Congo (MLC), into CAR to back up embattled leader Ange-Félix Patassé.
According to the Court, MLC fighters committed war crimes and crimes against humanity on that mission, with Mr. Bemba “effectively acting as military commander.”
He was transferred to the ICC in July 2008 after being arrested by Belgian police. In September, the Court decided that Mr. Bemba will remain in custody until the start of his trial, reversing an earlier decision to grant him temporary conditional release.
The situation in CAR is one of four – along with Darfur, DRC and Uganda – currently under investigation by the Prosecutor of the ICC, an independent, permanent court that tries persons accused of genocide, crimes against humanity and war crimes.
Friday, November 6, 2009
We've just received the following press release from the United Nations:
General Assembly President Ali Treki today urged Israel and the Palestinians to heed the body’s call to conduct credible investigations into charges that both sides were guilty of serious human rights violations during the conflict in the Gaza Strip at the start of the year.
Mr. Treki noted that the 192-member Assembly yesterday adopted a resolution on the report of the United Nations fact-finding mission on the Gaza conflict, which found that Israeli forces and Palestinian militants had committed serious war crimes and breaches of humanitarian law, possibly amounting to crimes against humanity, during the conflict in December 2008 and January 2009. Assembly resolutions are non-binding.
“This vote was an important declaration against impunity, it was a call for justice and accountability,” Mr. Treki told reporters in New York, calling for both the Israelis and Palestinians to carry out independent inquiries within three months as required in the resolution.
“While the General Assembly has fulfilled its responsibility and will remain seized over the matter, it is vital that all concerned now devote efforts to implement the resolution and ensure follow up,” he added.
Mr. Treki also voiced pleasure at the “smooth” and cooperative discussions in the General Assembly on the Goldstone report, as well as recent reports from the International Court of Justice (ICJ), the International Criminal Court (ICC) the International Atomic Energy Agency (IAEA).
Yesterday, the International Criminal Tribunal for the former Yugoslavia issued its "Decision on Appointment of Counsel and Order on Further Trial Proceedings" in the case of defendant Radovan Karadžić. Last week, Karadžić refused to be present at the commencement of his trial because he felt he needed several more months to prepare. The Trial Chamber proceeded with the prosecution's opening statement and then adjourned the case to hold a hearing on Wednesday regarding appointment of counsel and future trial proceedings. In the end, the Chamber gave Karadžić most of what he wanted – a delay into next year (trial to resume in March) and the continued right to represent himself. The Chamber further ruled that stand-by counsel will be appointed.
On the surface, the decision seems to be in the best interests of justice and effective at maintaining the integrity of the proceedings. In the first place, the Tribunal avoided the unseemly result of continuing the trial without the defendant in the courtroom and no attorney in his stead. At the same time, the right of self-representation, which the Tribunal considers "fundamental," albeit not absolute, has been respected and preserved. The defendant, as requested, has been given additional time to prepare and stand-by counsel has been appointed – if Karadžić remains obstructive in March, counsel will be ready to take over.
On closer inspection, however, the decision appears quite flawed. For one, the timing seems suspect. Over the past year, there have been ominous signs concerning Karadžić's pre-trial preparation. For example, Karadžić has openly devoted significant pre-trial time and resources establishing the existence of a supposed July 1996 agreement with former American special envoy Richard Holbrooke granting him immunity from prosecution, despite its marginal value based on court rulings. Moreover, as the Trial Chamber noted in its decision:
[The] Accused . . . gave some indication that he intends, in the course of his defense, to 'correct' what has been adjudicated by this Tribunal in prior cases concerning other accused persons, which is something he has stated during status conferences held during the pre-trial stage, and show who was responsible for 'the outbreak of the war.' The Trial Chamber reiterates that the Accused's task is only to address the allegations in the indictment against him, and to challenge the evidence brought by the Prosecution in support of those allegations, and that he should be focusing his preparation accordingly. He cannot reasonably claim to require many more months to prepare for trial when his preparation includes matters that are not, and will not be, the subject of the trial.
Clearly, the Tribunal was on notice during the pre-trial phase that Karadžić would not likely be ready for trial in October. So that was the time to appoint stand-by counsel. With a little foresight and initiative, the Tribunal could have accomplished months ago what it did yesterday – preserve and respect the right of self-representation while giving an attorney time to prepare for trial should the defendant choose to engage in obstruction tactics on the eve of trial (and it could have communicated with that attorney in the interim to gain a more objective assessment of the pace of pre-trial preparations).
Instead, the Tribunal delayed and was inexplicably caught flatfooted. And given the time pressures (especially in light of the Tribunal's completion strategy), it granted what amounts to less than a four-month extension. But the defendant had previously stated he needed an additional eight months to prepare (two months ago he asked for a ten-month continuance). In effect, the Tribunal halved his requested extension, which seems at cross-purposes with its other efforts to appear fair. Moreover, given the case's complexity and its voluminous body of evidence, it seems difficult to imagine that less than four months (to March 1st) will be sufficient for appointed counsel to prepare. Perhaps the Chamber could have split the difference and accorded the defendant and his counsel at least a six-month continuance.
And if the Tribunal had ample warning that Karadžić would be boycotting his trial, why did it have the prosecution deliver its opening statement last week? If it had an inkling it would likely delay the proceedings another few months, what was the point of getting underway and then disrupting the flow of trial? Wouldn't it have made more sense to hold yesterday's hearing first? On many levels, the Tribunal's handling of this mess smacks of judicial incompetence.
It is not as if such issues are new to the Tribunal. Slobodan Milošević exploited his right to represent himself by delaying the proceedings until the Tribunal was forced to appoint him counsel late in his four-year trial. In the meantime, so much time had elapsed that he died before a verdict and was thus able to evade final justice. And the Tribunal has been dealing with obstruction tactics during the ongoing two-year-old trial of Vojislav Šešelj, who also serves as his own attorney. At least in those cases Milošević and Šešelj were trained as lawyers. There is no good reason why the Karadžić Trial Chamber (and the Pre-Trial Judge for that matter) should have been asleep at the switch during the pre-trial phase in this case.
In the pantheon of due process rights, self-representation is not at the apex. No less, it must be counterbalanced with the public's right to a speedy and fair trial. In this instance, the Tribunal should have been much more vigilant and far less deferential in the lead-up to yesterday's decision. The Hague's high-profile Balkan defendants understand quite well that justice delayed is justice obstructed and they rightly roll the dice that it will be justice denied. It is difficult to excuse the Tribunal's judicial wing when it serves as an unwitting accomplice to that strategy.
By the time the WTO Dispute Settlement Body (DSB) celebrates its 15th "birthday" in January, it will have handled more than 400 trade disputes. The DSU came into existence in January 1995, meaning that this January 2010 will mark its 15th "birthday." Recently, Canada requested consulations with the European Communities over the importation and marking of seal products, invoking the WTO's dispute settlement processes for the 400th time in its history. "This is surely a vote of confidence in the system which many consider a role model for the peaceful resolution of disputes in other areas of international political or economic relations," said WTO Director-General Lamy in a press release. Since the WTO DSB was created, it has received an average of 27 disputes per year, with a high of 50 in 1997 and a low of 11 in 2005. The two most frequent users of the system are the trading giants, the United States and the European Communities; however, developing countries have been complainants in 45% of the cases, demonstrating that they too are using the system. Of the 153 members of the WTO, 58 have been either complainants or respondents before the DSB. Slightly less than half of all the cases filed have gone to litigation, with the rest being resolved through bilateral negotiations before a dispute settlement panel was established.
Thursday, November 5, 2009
Each year, the International Legal Theory Interest Group of the American Society of International Law convenes a special conference to consider an important theoretical issue in international law. This year, the conference will focus on the Role of Ethics in International Law. Special attention will be paid both to the role of ethics in public and private international law, as well as to normative and theoretical perspectives. The day-long program on The Role of Ethics in International Law will be held on Friday, November 13, 2009 in Washington D.C. from 8:30 a.m. to 2:00 p.m. at ASIL Headquarters, and from 2:00 p.m. to 6:30 p.m. at the Cosmos Club. Panelists include:
- Oona A. Hathaway, Yale Law School
- Mary Ellen O'Connell, Notre Dame Law School
- Edward T. Swaine, George Washington University Law School
- Lea Brilmayer, Yale Law School
- Perry Dane, Rutgers School of Law
- Dean Symeon C. Symeonides, Willamette University College of Law
- Mashood A. Baderin, School of Law, SOAS, University of London
- Samantha Besson, University of Fribourg/Duke University School of Law
- H. Patrick Glenn, McGill University
Registration is an amazingly low $15.00, and free for members of the American Society of International Law. (Guys, you need to make this conference more expensive so that people will join the ASIL!)
Contact the American Society of Intenrational Law at 2223 Massachusetts Avenue, NW, Washington DC 20008. Telephone 1-202-939-6000 or email services [at] asil.org, or visit their website by clicking here.
Wednesday, November 4, 2009
A border arbitration agreement between
Slovenia and Croatia was signed today.
While noting the significant steps that have been taken in Mauritania to tackle slavery, an independent United Nations human rights expert today called for a comprehensive strategy to put an end to this scourge, warning of its impact on the country’s future.
“Unaddressed, slavery in all its forms may be an obstacle to the stability, sustainable development and prosperity of Mauritania,” said Gulnara Shahinian, the UN Special Rapporteur on contemporary forms of slavery, at the end of her visit to the country.
During her visit, Ms. Shahinian met with various Government authorities, international organizations and non-governmental organizations (NGOs), and visited communities in Atar, Rosso and the capital, Nouakchott.
She met with people who told her that they had been victims of slavery practices such as serfdom and domestic servitude.
“These victims said that they were utterly deprived of their basic human rights,” she said in a news release. “Having no alternative, they voluntarily stay or after fleeing, return back to slavery. This perpetuates the vicious circle of slavery for men, women and children. The women I met felt that they were the most vulnerable as they suffer triple discrimination firstly as women, secondly, as mothers and thirdly as slaves.”
She commended the country for taking legal measures to eradicate all forms of slavery, including the passing in 2007 of the law criminalizing the phenomenon, which she said sends “a clear message that slavery can never be tolerated in Mauritania.”
She recommended that a sustained awareness-raising campaign be carried out in the urban and rural areas to make all Mauritanians aware of the law. In addition, to encourage victims to come forward, she suggested that the slavery law include provisions that offer victim assistance and socio-economic programmes for their reintegration into society.
“A comprehensive and holistic national strategy specifically addressing slavery that includes awareness raising, access to basic services and income-generating activities is required in order to effectively put an end to this phenomenon,” said the Special Rapporteur.
Ms. Shahinian, who was appointed to her post in May 2008, works in an independent and unpaid capacity, and reports to the Geneva-based Human Rights Council.
Tuesday, November 3, 2009
Czech President Vaclav Klaus signed the Lisbon Treaty today, clearing the way for the new constitution for Europe to take effect. The document has already been accepted by all the other 26 EU Member States. The next step will be the holding of an EU summit. The treaty could take effect as early as next month. Among other changes intended to deepen integration of the EU Member States, the treaty creates two important new posts: a full-time President and a High Representative for Foreign Affairs.
In an update to one of our blog posts last week, Radovan Karadzic, the former commander of the Bosnian-Serb forces during the war in Bosnia in the 1990s, made his first appearance before the International Criminal Tribunal for the former Yugoslavia (ICTY) yesterday in his trial for genocide,war crimes, and crimes against humanity during that conflict. Radovan is conducting his own defense and had previously stated that he would boycott the proceedings. He also has requested a 10-month delay in the proceedings to prepare his defense. Yesterday's hearing was a procedural one to determine how to move forward with the trial.
Abdullah Abdullah, the challenger to Afghan President Hamid Karzai, withdrew as a candidate from the presidential election run-off in Afghanistan. President Karzai was then declared the winner by default under Afghan law. U.S. President Barack Obama called President Karzai to congratulate him on the election, but stressed that the United States and other countries were looking for serious signs of reform. For his part, Karzai has also pledged a crackdown on corruption.
The original elections were complicated by serious fraud, but the worldwide attention on that election fraud may have deterred similar abuses in the runoff election. Many observers noted that Karzai would most likely had one if Abdullah Abdullah had stayed in the race, and winning a runoff election may have increased Karzai's legitimacy to govern Afghanistan. But the runoff election may have put some lives at risk if the Taliban attacked any of the polling places.
With the withdrawal of the challenger, Karzai was lawfully elected under Afghan law. The United States and other nations are looking to see if he will be the "credible partner" needed in Afghanistan. U.S. President Obama is still weighing a decision on whether to increase, maintain, or decrease the number of U.S. troops serving in Afghanistan. General Stanley McChrystal, the U.S. Commander in Afghanistan, has asked for 40,000 more troops in addition to the 68,000 now serving there.