CRINMAIL 22:
WAR CRIMES, GENOCIDE AND CRIMES AGAINST HUMANITY
In this issue:
FOCUS: War crimes, genocide and crimes against humanity
- Domestic courts: Bangladesh, Agentina, Guatemala, Haiti, Chad
- International cases: former-Yugoslavia, Liberia, Cote d'Ivoire, Mali, Syria, Rwanda
News and cases round-up
WAR CRIMES, GENOCIDE AND CRIMES AGAINST HUMANITY
Human rights litigation takes many forms, but the start of 2013 has seen unusual numbers of the most high profile cases: those in relation to war crimes, genocide and crimes against humanity. This month CRIN looks at the cases underway to address some of the worst children’s rights abuses.
The archetypal war crimes trial may be an international tribunal, but as the start of 2013 has shown, national courts are willing and able to try international crimes. What these proceedings have also shown, however, are the difficulties that face countries dealing with their own past, whether delay, impunity or questions over impartiality.
Bangladesh hands down sentences for crimes committed during war of independence
Bangladesh’s International Crimes Tribunal, a court established in 2010 to hear cases related to the 1971 Bangladeshi Liberation War, has begun handing down sentences. Abul Kalem Azad was the first to be sentenced in January for genocide and murder committed during the period, shortly followed by Abdul Quader Mollah and Delwar Hossain Syeedi for the crimes of murder, rape and torture. All three men were leading members of the Jamaat-e-Islami political party.
Though a welcome attempt to address the crimes of the past, crimes that took place in a war in which as many as 3 million people were killed, the trials have not been without controversy. Proceedings have been plagued by questions over their impartiality, not least because they focus on colleagues of the former Prime Minister and current opposition leader, Khaleda Zia. Ms Zia, of the Bangladesh Nationalist Party, would struggle to win forthcoming elections without the support of the Jamaat-e-Islami party, whose leadership are nearly all embroiled in the trials.
Sentencing has also been a serious source of concern internationally. Both the UN Special Rapporteur on extrajudicial, summary or arbitrary executions and the UN Special Rapporteur on the independence of judges and lawyers have spoken out about the trials, claiming that they have not met the standards necessary to guarantee due process and a fair trial. In a joint statement, the Rapporteurs said, “given the importance of these trials and the possible application of the death penalty, it is vitally important that all defendants before the Tribunal receive a fair trial”.
The situation has been further complicated by the approval of legislation to amend the rules governing the Tribunal. In February, following protests against what was perceived to be the lenient sentencing of Abdul Quader Mollah, the Bangladeshi parliament approved a law that would allow for sentences to be appealed on the grounds of leniency and for the prosecution to appeal against an acquittal. Human Rights Watch (HRW) has been vocal in its criticism of the changes, claiming that the law had been introduced with the aim of overruling the Tribunal. Speaking for HRW, Brad Adams said, “Justice for victims of war crimes and other serious abuses during the 1971 war of liberation is essential … But a government supposedly guided by the rule of law cannot simply pass retroactive laws to overrule court decisions when it doesn’t like them. The Bangladesh government should pause, take a deep breath, and repeal the proposed amendments, which make a mockery of the trial process.”
Argentina sentences military officers for role in the “dirty war”
Argentina too has made progress at the national level to hold military figures responsible for crimes committed during its past. Seven military officers were sentenced for their part in the “dirty war” in Argentina between 1976 and 1983, during which opponents of the government and many other citizens were “disappeared”. The sentences ranged from 12 years to life imprisonment for the crimes of kidnapping, torture and homicide in relation to 69 prisoners held in Mar del Plata.
These sentences follow those handed down to two former Argentinian dictators in July 2012 for the systematic kidnapping of babies during the same period. Jorge Videla and Reynaldo Bignone were sentenced to 50 years and 15 years imprisonment respectively. The path was only cleared to bring these cases in 2003, when a blanket pardon for crimes committed during the period was annulled by the Argentine Congress.
Guatemala war-crimes trial
in Guatemala too, proceedings have been initiated to try former General Efrain Rios Montt. During his 12 years as a Congressman, Montt enjoyed immunity from prosecution, but since his term came to an end in January 2012, he has been charged with genocide in relation to several separate incidents committed while he was de facto head of state during 1982 and 1983. Charges were initially brought last year regarding the massacre of 201 villagers at Dos Erres in 1982, but in January 2013 Montt was charged with further crimes against humanity in connection with the killing of a 1,700 villagers of Mayan ancestry. Montt had appealed for an amnesty with regards to any crimes committed during his time in power, but the rejection of the appeal this month has paved the way for a full trial. The trial marks the first time that genocide proceedings have been brought with regards to the 36-year civil war in Guatemala, in which an estimated 200,000 people were killed.
Former Haitian dictator appears in court
In Haiti, the trial process is just beginning against former dictator, Jean-Claude Duvalier. Duvalier has been the subject of four summonses to appear before Haitian courts since he returned to the country in 2011, but until this month, the court had not been willing to threaten that he be jailed should he not appear. The hearings will determine whether Duvalier will face charges in relation to human rights abuses he allegedly committed between 1971 and 1986, but it is not yet clear what offences will be included in an indictment.
A previous case against Duvalier, heard in January 2012 in relation to allegations of rape, torture and murder, failed to progress through the courts on the basis that the statute of limitations had expired for those crimes, though that decision would allow for Duvalier’s prosecution for embezzlement. Amnesty International has been vocal on the case, specifically with regards to the principle that international human rights standards are not subject to limitation periods. In hearing this case, the court could decide to overturn the earlier decision and allow Duvalier to be tried for the most serious crimes with which he is accused.
Hissene Habré to face war crimes charges in Senegal
After 22 years of living in exile, Hissene Habré may finally face trial for crimes he allegedly committed during his rule of Chad, including ethnic cleansing. In February, a joint Senegalese and African Union court was inaugurated to try persons for international crimes committed in Chad between 1982 and 1990. Though the court is able to hear crimes committed by any person during the time, it may be that the former Chadian dictator is the only person to be tried by the tribunal.
Habré has been the subject of a lengthy campaign to bring him to justice. As of January 2000, victims had filed a criminal complaint and the Senegalese courts indicted Habré, but the case was dismissed for lack of jurisdiction. Ultimately the decision to establish a tribunal only took place in response to the judgment of the International Court of Justice that Senegal must prosecute Habré “without further delay” or extradite him. The pre-trial phase of proceedings is expected to last 15 months, and any trial would not take place before 2014.
Speaking for the International Federation for Human Rights (FIDH), Dobian Assingar said, "It is fundamental to place the victims at the heart of the process and the court's statute goes to great lengths to ensure that Habré's trial is meaningful to them".
Yugoslavia crimes against humanity conviction overturned
The only conviction of a member of the high command of the Yugoslav People’s Army to emerge from the International Criminal Tribunal for the former Yugoslavia was overturned at the end of February. Momčilo Perišić, the former Yugoslav army chief, had been sentenced to 27 years imprisonment for crimes against humanity and violations of the laws or customs of war. Perišić had been found guilty of 12 charges, including aiding and abetting the murders that occurred during the Srebrenica massacre, in which 8,000 Muslim Bosniak men and boys, some as young as seven, were murdered by Bosnian Serb military forces.
The appeals chamber, however, overturned his conviction, finding that the trial chamber had not applied the law correctly in its direction regarding what was required of the prosecution to prove that Perišić aided and abetted the crimes. The court also found that the evidence on record did not prove beyond reasonable doubt that he had committed the crimes with which he was charged.
Charles Taylor appeals sentence for aiding and abetting war crimes
In January former Liberian President, Charles Taylor launched his appeal at the Special Court for Sierra Leone against his 50-year sentence for war crimes committed during the civil war in Sierra Leone, including aiding and abetting the conscription and enlistment of children into armed forces. Taylor is arguing that the court made “systematic errors” in evaluating evidence and relied on hearsay testimony of 94 prosecution witnesses.
In an unusual turn of events, the prosecution is also appealing the sentence, asking the court to overturn Taylor’s acquittal on charges that he actively issued orders to rebels and calling for his sentence to be increased to 80 years.
Cote d’Ivoire proceedings progress at the ICC
At the International Criminal Court (ICC), former Côte d'Ivoire President, Laurent Gbagbo has appeared before the court to determine whether the case against him will proceed to trial. The defence has continued to argue that the court does not have jurisdiction to hear the case, and that he should be tried by authorities in Côte d’Ivoire, which have launched their own investigation into events. Gbagbo is accused of four counts of crimes against humanity, namely murder, rape and other sexual violence, persecution and other inhuman acts allegedly committed in the context of the post-electoral violence in Cote d’Ivoire between december 2010 and April 2011.
The hearing ended on the 28th of February and the prosecutor, legal representatives of the victims and the defence will have one month to complete their written submissions. The final decision on whether to proceed to a full trial must take place before the end of May.
The ICC has also expanded its activities surrounding Ivorian electoral violence by charging Gbagbo’s former Minister for Sports and Youth with war crimes and murder in January, and by unsealing an arrest warrant for Simone Gbagbo, the former leader’s wife on charges that she was complicit in committing murder, rape, sexual violence, persecution and other inhuman acts during the period.
See here for more background information on the ICC's activities in Côte d'Ivoire.
ICC opens investigation into war crimes in Mali
The ICC is continuing its work on potential war crimes committed in Mali. The court has already conducted preliminary investigations which indicated that there is sufficient evidence to believe that war crimes, including murder, execution without due process, mutilation, torture and rape have been committed in the country. The next step is for a full investigation to be launched under the supervision of the Pre-trial Chamber, which will have the power to issue arrest warrants should sufficient evidence of the alleged crimes be found to charge an individual with any of the crimes to be investigated.
See here for more information from the ICC.
International community calls for Syria to be referred to the ICC
Calls are mounting for the UN Security Council to refer the situation in Syria to the International Criminal Court. The UN Independent International Commission of Inquiry on Syria as well as the High Commissioner for Human Rights have both urged the UN Security Council to take this step, as Syria is not a party to the treaties which would permit the ICC Prosecutor to act on her own behalf, so the only way that the situation could come before the ICC would be by the referral of the Security Council. An estimated 70,000 people have been killed in the country since the conflict began and the International Commission's report of February 2013includes evidence of torture of children and their recruitment into armed groups.
Rwanda genocide convictions continue 20 years later
Almost 20 years after the Rwandan genocide, in which 800,000 people were killed, trials continue around the world and in various forms to bring the perpetrators to justice. This month a domestic court in the Netherlands found a Dutch woman guilty of inciting genocide in Rwanda, sentencing her to six years and eight months for her involvement, while earlier this year Norway too convicted a Rwandan man of complicity in the genocide. In France a man was arrested for genocide and crimes against humanity in relation to the events of 1994, though as Musubyimana is subject to an arrest warrant in Rwanda for charges of genocide, murder and rape, he would be tried in Rwanda if extradition proceedings were successful.
The International Criminal Tribunal for Rwanda, located in Tanzania, also continues its work. The sentencing of Ausustin Ngirabatware to 35 years imprisonment in December 2012 ended the trial phase of proceedings before the court, though appeals continue.
NEWS AND CASES ROUND-UP
THE LAST WORD
“For rights to have meaning, effective remedies must be available to redress violations… States need to give particular attention to ensuring that there are effective, child-sensitive procedures available to children and their representatives. These should include the provision of child-friendly information, advice, advocacy, including support for self-advocacy, and access to independent complaints procedures and to the courts with necessary legal and other assistance.”
- UN Committee on the RIghts of the Child, General Comment No. 5
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