Human Rights Brief

Volume 15 | Issue 3 Article 8

2008 Updates from the International Criminal Courts Anna Katherine Drake American University Washington College of Law

Rachel Katzman American University Washington College of Law

Katherine Cleary American University Washington College of Law

Solomon Shinerock American University Washington College of Law

Howard Shneider American University Washington College of Law

Follow this and additional works at: http://digitalcommons.wcl.american.edu/hrbrief Part of the Criminal Law Commons, Human Rights Law Commons, and the International Law Commons

Recommended Citation Drake, Anna Katherine, Rachel Katzman, Katherine Cleary, Solomon Shinerock, and Howard Shneider. "Updates from the International Criminal Courts." Human Rights Brief 15, no. 3 (2008): 42-48.

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Updates from the International Criminal Courts

In t e r n a t i o n a l Cr i m i n a l on fleeing civilians. Some individuals were der, torture, rape, and cruel treatment. At Tr i b u n a l f o r t h e Fo r m e r shot execution style and others murdered in the time the crimes allegedly took place, Yu g o s l a v i a front of their families. The troops opened between March and September 1998, Hara- fire on groups of civilians and burned dinaj was commander of the KLA troops in Tr i a l o f An t e Go t o v i n a others alive. The attack was not limited the Dukagjin area. Haradinaj and Balaj — The trial of former Croatian General to physical violence; advancing forces commanders of the Black Eagles, a KLA began on March 11, 2008. mounted an organized campaign of ethnic unit operating in Dukagjin — were both Following his secret indictment in 2001, cleansing, systematically torching or oth- acquitted of all charges, but Brahimaj — Gotovina was on the run for four years erwise destroying and plundering Serb vil- Haradinaj’s uncle and member of the KLA before his apprehension at a luxury hotel lages, including those in the municipalities general staff stationed at the headquarters in the . His trial is regarded of Benkovac, Donji Lapac, Drniš, Ervenik, in Jablanica — was found guilty of cruel as one of the most important prosecutions Gracˇ ac, Kistanje, , Lišane Ostrovicˇ ke, treatment and torture of two persons and to date at the Tribunal because it will effec- Lovinac, Nadvoda, Obrovac, Oklaj, Orlic ´ , sentenced to six years’ imprisonment. tively try and pass judgment on approaches Polaca, Titova Korenica, and Udbina. All three indictees were acquitted of taken by the Croatian leadership during Gotovina, Cermak,ˇ and Markaˇc are charges. The Trial the conflict. The trial is certain to be fol- charged with participation in a joint crimi- Chamber was not convinced beyond a lowed closely in the former Yugoslavia nal enterprise, the common purpose of reasonable doubt that there existed a joint because Gotovina is still considered by which was the permanent removal of the criminal enterprise with the objective of many ­Croats to be a national hero. Serb population from the Krajina by force, targeting civilians. The judges found that Gotovina has been indicted, along with fear, or threat of force, persecution, forced some evidence presented by the Prosecutor two other Croatian Generals, Ivan Cermakˇ displacement, transfer and deportation, suggested some victims were targeted for and Mladen Markaˇc, for crimes against appropriation and destruction of property, individual reasons rather than as members humanity and war crimes as participants or other means. Gotovina was indicted for of a specific civilian population. They also in a joint criminal enterprise with four his direct and indirect acts. He allegedly found that the scale of ill-treatment, forcible deceased co-perpetrators — former Presi- participated in the planning and prepara- transfer, and killing of civilians not signifi- dent of Franjo ­Tudjman, Croatian tion for the campaign and exercised com- cant enough to conclude there had been an Minister of Defense Gojko Šušak, and mand and control over all units, elements, attack against a civilian population. Chiefs of the Main Staff of the ­Croatian and members of the Croatian armed forces The trial of Haradinaj was notorious for Army and Zvonimar who participated in . He witness intimidation. Throughout the trial, Cervenko.ˇ Gotovina was the overall opera- also allegedly permitted the aforemen- the Chamber had to deal with witnesses tional commander of the major Croat offen- tioned criminal activity to occur and failed refusing to testify. The Chamber granted sive Operation Storm that was carried out to establish law and order among his 34 witnesses protective measures to induce over three days in August 1995. Operation subordinates. them to testify. Eighteen subpoenas were Storm was designed to expel the Croatian issued to witnesses who refused to testify. Serb population from the Krajina region of Ac q u i t t a l o f Fo r m e r Ko s o v a r Two of those subpoenaed still refused, Croatia. In September 1990, Croatian Serbs Pr i m e Mi n i s t e r Ra m u s h were indicted for contempt of court, and declared that the Krajina would henceforth Ha r a d i n a j arrested and transferred to . The be a Serbian Autonomous Region. Croa- Chamber repeatedly heard from witnesses tian leaders implemented several plans On April 3, 2008 the Tribunal acquitted that they feared for their safety, perhaps for designed to retake the claimed territory but Ramush Haradinaj of all charges of crimes good reason. In early January, following had little success until Operation Storm. against humanity and war crimes. Haradi- naj and two other high-ranking members of testimony before the ICTY, leading pros- In anticipation of the strike, a cam- the Kosovo Liberation Army (KLA), Idriz ecution witness Tahir Zemaj, as well as his paign of fear and propaganda was mounted Balaj and Lahi Brahimaj, were indicted for son and his nephew, were shot and killed throughout the Krajina in an effort to evac- participation in a joint criminal enterprise in Zemaj’s car in Peja, Kosovo. Another uate the region. The campaign was largely with the aim of consolidating control over prosecution witness, Kujtim Berisha, was successful, so much so that by the time the Dukagjin area in northwest Kosovo by hit by a car and killed in Montenegro two Croatian forces arrived many Croatian unlawful removal, mistreatment, and mur- weeks before the trial began. Serbs had fled. During the offensive and its der of Serbian and Kosovar Roma civilians

aftermath, Croat forces under Gotovina’s as well as Kosovar Albanians considered command committed numerous atrocities sympathetic to their cause. The three were in the region. The Croatian troops shelled charged with 19 counts of violations of the civilian areas and conducted aerial attacks laws and customs of war including mur-

Published by Digital Commons @ American University Washington College42 of Law, 2008 1 Human Rights Brief, Vol. 15, Iss. 3 [2008], Art. 8 Tr i a l o f Se r b i a n Se c r e t Se r v ic e and October 1994. Raševic´, the guards’ in Kosovo — has caused fury in Serbia. Me m b e r s : St a n i š ic´ a n d Si m a t o v ic´ commander, used the facility as a deten- New ICTY Prosecutor Serge Brammertz’s tion centre for non-Serb civilians. Todovic´, efforts in conjunction with persuasion by The trial against two high level officials the deputy warden, participated in the the international community, might help of the Serbian Secret Service began in April. creation and maintenance of a system of coax Serbia back into a relationship with Jovica Stanišic´ and Franko Simatovic´ were punishment and mistreatment of detainees. the west. This might also rekindle Ser- indicted for crimes against humanity and Both also helped establish a forced labor bian cooperation in the apprehension of war crimes for their participation as part of system. remaining fugitives, particularly former a joint criminal enterprise whose objective Bosnian-Serb President Radovan Karadzic was the forcible and permanent removal The ICTY referred two other cases and former Bosnian-Serb General Ratko of the majority of non-Serbs —principally involving suspects indicted for crimes in Mladic´ respectively. Croats, Bosnian Muslims, and Bosnian Foˇca to the WCC. Gojko Jankovic´ and Croats — from large areas of Croatia and Radovan Stankovic ´ were tried separately Bosnia-Herzegovina, through the crimes and found guilty of war crimes by that Sp e ci a l Co u r t f o r of persecutions, murder, deportation, and court. Jankovic´ was sentenced to 34 years’ Si e r r a Le o n e imprisonment, and Stankovic´ to 20 years’ other inhumane acts. Pr o s e c u t o r v. Br i m a , Ka m a r a & imprisonment. In May 2007, however, Ka n u , Ca s e No. SCSL-04-16-A In the spring of 1991, the Serbian Stankovic ´ escaped from a prison in Bos- Secret Service established secret units to nia’s where he was serv- On March 3, 2008, the Appeals Cham- under­take special military action in Croatia ing his sentence. ber of the Special Court for Sierra Leone and Bosnia-Herzegovina. Amongst these (SCSL) affirmed the Trial Chamber’s secret units were the notoriously brutal Co m p l e t i o n St r a t e g y a n d conviction of Alex Tamba Brima, Brima ’s Tigers and Martic´’s Police. Under In s t a b i l i t y i n Se r b i a Bazzy Kamara, and Santigie Borbor Kanu, the direction of Stanišic ´, Simatovic ´ set up senior members of the armed rebel group train­ing camps in the Krajina for the armed Because the Tribunal is set to end its the Armed Forces Revolutionary Coun- units. From 1991 to 1995, Staniši ´c and work in 2010, the Security cil (AFRC). Each was convicted in June Sima­­tovic ´ allegedly directed, organized, Council authorized an increase of ad litem 2007 on six counts of war crimes (ter- equipped, trained, armed, and financed the judges to sit in cases before the Tribunal rorism, collective punishments, outrages secret units as they murdered, ­persecuted, to enable greater efficiency and the com- upon personal dignity, pillage, murder, and and forcibly transferred non-Serbs. The mencement of additional trials. The num- mutilation); four counts of crimes against Octo­ber 1991 massacre at Hrvatska Kostaj­ ber of ad litem judges may be increased humanity (rape, extermination, murder, nica in Croatia is just one example of from 16 to 18 for 2008. Since its first hear- and enslavement); and one count of other atrocities committed by a secret unit under ing in November 1994, the Tribunal has serious violations of international humani- their direction. Members of ­­Marti´c’s Police indicted 161 persons for serious violations tarian law (recruitment and use of child and other Serb forces were in control of the of humanitarian law committed in the for- solders). Although both the Prosecution area, and most people in the region had fled mer Yugoslavia between 1991 and 2001. and the Defense submitted several grounds during attacks the previous month. When Proceedings against 111 of these 161 have of appeal, this summary will focus on three secret units arrived, the remaining popula- been completed. of the more notable rulings of the Appeals tion was predominately women, elderly, Chamber. and the infirm. Martic ´’s Police and other Recent developments in Serbia have the Serb forces rounded up 56 of the 120 peo- international community concerned about First, the Appeals Chamber partially ple still in their villages, transported them the progress of the Tribunal with regards granted the Prosecutor’s appeal against to the village of Ba´cin, and executed them. to Serbian cooperation. While Serbia had the Trial Chamber’s dismissal of Count been moving towards greater integration 7 of the Indictment — which charged the with Europe, increasing pressure on the Ad d i t i o n a l Fo c ˇ a Ju d g m e n t s accused with the commission of “sexual state to hand over the four remaining slavery and any other form of sexual vio- Judgment in the cases of Mitar Raševic´ fugitives, Kosovo’s declaration of inde- lence” as crimes against humanity — on and Savo Todovic´ were handed down by pendence delivered a heavy blow to these the ground that the count violated the rule the War Crimes Chamber of the Court goals. Following Serbian Prime Minister against duplicity. The Appeals Chamber of (WCC) on Vojislav Kostunica’s resignation in the began by reiterating that the rule against February 28. The ICTY referred these wake of Kosovo’s independence, Presi- duplicity “applies to international criminal cases to the Court under the Rule 98bis dent Boris Tadic´ dissolved the parliament tribunals such that the charging of two procedure in 2003 and 2005 respectively. and called for elections. Kostunica and separate offences in a single count ren- The two defendants are named in a larger other Serbian nationalists have vowed to ders the count defective.” Applying this indictment of individuals involved in war halt Serbian integration into the European standard, the Appeals Chamber agreed crimes committed in the Bosnian town Union (EU) until the EU rejects Koso- with the lower court that Count 7 vio- of Foˇca. The WCC found Raševic´ and vo’s split from Serbia. The ICTY’s recent lated the rule, as “sexual slavery” requires Todovic´ guilty of crimes against humanity acquittal of Ramush Haradinaj — who was “the exercise of rights of ownership over committed against non-Serbs in the Foˇca indicted for war crimes and crimes against the victim,” whereas “any other form of Correctional Facility between April 1992 humanity directed primarily at Serbians sexual violence” does not. The Appeals http://digitalcommons.wcl.american.edu/hrbrief/vol15/iss3/8 43 2 Drake et al.: Updates from the International Criminal Courts Chamber, however, found that the Trial Statute] should foreclose the possibility of Trial Chamber agreed, dismissing the Pros- Chamber erred in quashing Count 7 in its charging as ‘other inhumane acts’ crimes ecution’s allegations regarding the JCE on entirety. Rather, based on the “evidence which may among others have a sexual or the ground that they failed to “clarify what accepted by the Trial Chamber and the gender component.” criminal purpose the parties agreed upon findings it had made,” the lower court at the inception of the agreement.” Yet the should have returned a verdict on the The Appeals Chamber also took issue Appeals Chamber overturned this holding, count of sexual slavery as a crime against with the Trial Chamber’s finding that saying “the requirement that the common humanity and struck out the charge of “any forced marriage was subsumed in the plan, design or purpose of a joint criminal other form of sexual violence.” Neverthe- crime against humanity of sexual slav- enterprise is inherently criminal means that less, the Appeals Chamber held that it was ery. According to the Appeals Chamber, it must either have as its objective a crime not necessary to “substitute a conviction the trial record contains “ample evidence within the Statute, or contemplate crimes for sexual slavery as the Trial Chamber that the perpetrators of forced marriages within the Statute as the means of achiev- relied upon the evidence of sexual slavery intended to impose a forced conjugal asso- ing its objective.” The Appeals Chamber, to enter convictions for Count 9,” which ciation upon the victims rather than exer- however, saw “no need to make further charged the offense of “outrages upon per- cise an ownership interest” in the victims. factual findings or to remit the case to sonal dignity” as a . Although the Appeals Chamber did not the Trial Chamber,” having “regard to the define the concept of “forced conjugal interest of justice.” The Prosecutor also challenged the association,” it concluded that “forced mar- Trial Chamber’s dismissal of Count 8 riage is not predominantly a sexual crime.” of the Indictment, which charged Brima, Furthermore, the Appeals Chamber held In t e r n a t i o n a l Cr i m i n a l Kamara, and Kanu with “other inhumane that, while “forced marriage shares cer- Co u r t acts” (forced marriage) as crimes against tain elements with sexual slavery,” there Th e Ca s e s i n t h e Si t u a t i o n humanity. The Trial Chamber had dis- “are also distinguishing factors.” Thus, o f t h e De m o c r a t ic Re p u b l ic missed this charge on the ground that the Appeals Chamber concluded that the o f Co n g o it was “redundant,” saying that “other Trial Chamber “erred in holding that the inhumane acts” as crimes against human- evidence of forced marriage is subsumed The trial of the first accused, Thomas ity should be read to exclude “crimes of a in the elements of sexual slavery.” Lubanga Dyilo, who is charged with sexual nature” because such crimes were recruiting child soldiers in the Demo- covered by the crime against humanity of Lastly, the Appeals Chamber found that cratic Republic of the Congo (DRC), was “rape, sexual slavery, enforced prostitu- the evidence adduced at trial established scheduled to begin in June 2008. On July tion, forced pregnancy and any other form that the three accused were criminally 2, however, in a decision that ended one of sexual violence.” Furthermore, the Trial responsible for the crime against humanity of the biggest controversies at the Inter- Chamber held that the Prosecution had of other inhumane acts (forced marriage). national Criminal Court (the ICC or the failed to adduce any evidence with respect Yet the Appeals Chamber declined to enter Court) yet, the Trial Chamber ordered the to forced marriage that was not already new convictions against the three RUF release of Lubanga. Two weeks earlier, completely subsumed in the crime against members, finding that “society’s disap- the Trial Chamber halted the proceedings humanity of sexual slavery. The Appeals proval of the forceful abduction and use because the Prosecution did not make Chamber disagreed. As an initial matter, of women and girls as forced conjugal potentially exculpatory evidence available it held that the jurisprudence of the ad partners as part of a widespread or system- to the Defense, violating Article 67(2) of hoc international criminal tribunals for the atic attack against the civilian population the Rome Statute, which requires the Pros- former Yugoslavia and Rwanda demon- is adequately reflected by recognizing that ecution to disclose any potentially exculpa- strated that the residual category of “other such conduct is criminal.” tory evidence. inhumane acts” has been “used to punish a Finally, the Appeals Chamber granted series of violent acts that may vary depend- The issue arose because of the Pros- the Prosecution’s appeal against the Trial ing on the context,” and that therefore “the ecutor’s alleged over-use of Article 54(3) Chamber’s ruling that the Prosecutor had determination of whether an alleged act (e), which permits the Prosecution, in very failed to properly plead participation in qualifies as an ‘other inhumane act’ must limited circumstances, to obtain confiden- a joint criminal enterprise (JCE) because be made on a case-by-case basis taking tial evidence that will not be used in trial the purpose of the enterprise was not into account the nature of the alleged act but requires that it only use this evidence itself criminal in nature. In the Indictment or omission, the context in which it took to obtain further evidence. The Prosecu- against the AFRC leaders, the Prosecution place, the personal circumstances of the tion used this provision to obtain over had alleged that each accused participated victims . . . and the physical, mental and 200 pieces of evidence from the United in a JCE, the purpose of which was to “take moral effects of the perpetrator’s con- Nations and other sources in the DRC, any actions to gain and exercise political duct upon the victims.” Thus, the Appeals some of which contain possibly exculpa- power and control over the territory of Chamber concluded that the Trial Chamber tory evidence, which can demonstrate the Sierra Leone.” At trial, the defense had erred in law by finding that “other inhu- innocence of the accused, mitigate the guilt challenged these allegations on the ground mane acts” as crimes against humanity of the accused, or affect the credibility of that the purpose of the enterprise did not must be “restrictively interpreted,” noting the Prosecution’s evidence. The sources amount to a specific crime and thus was too that was no reason why the “‘exhaustive’ will not give the Prosecutor permission broad to prove the existence of a JCE. The listing of sexual crimes under [the SCSL to turn over the evidence to the Court, for

Published by Digital Commons @ American University Washington College44 of Law, 2008 3 Human Rights Brief, Vol. 15, Iss. 3 [2008], Art. 8 reasons that include the safety of sources Ou t r e a c h ety in affected areas. In mid-February, and victims in the DRC. The Trial Cham- the Prosecutor answered questions in a ber accused the Prosecution of abusing The ICC’s field Outreach Unit (the dialogue that was broadcast through the Article 54(3)(e) by using it beyond the Unit) is charged with reaching out to the Interactive Radio for Justice. He con- intended limited circumstances and stated areas most affected by crimes that the cluded by discussing the role of the ICC that because Lubanga does not have access ICC is prosecuting or investigating. The and reiterating its commitment to ending to the evidence “a fair trial of the accused Unit’s efforts are critical to overcoming impunity. The Prosecutor also met with the is impossible, and the entire justification one of the Court’s most significant hurdles government and held a press conference for his detention has been removed.” The — ensuring that the justice meted out by with local media. Prosecution will have five days to appeal the ICC in The Hague remains meaning- the decision. The Accused will remain ful to people living in affected regions. The Unit teamed with the Victims Par- in the Court’s custody while the Appeals This task includes providing victims with ticipation and Reparations Section to con- Chamber deliberates. At the time that the a meaningful sense of justice and ending duct meetings in Bunia, Ituri District, Human Rights Brief went to press, the perpetrators’ expectations of impunity. In Orientale Province, and Béni, North Kivu Prosecution has appealed, and the Appeals discharging its mission, the Unit convenes Province, in the DRC between February 25 Chamber has not yet released a decision. meetings and workshops for victims and and March 3, 2008. Three hundred sixty- civil society. seven people in total attended the meet- Pre-Trial Chamber I of the ICC joined ings aimed to raise awareness and provide the two cases of Prosecutor v. Germain On February 15 and 18, 2008, the information for communities affected by Katanga and Prosecutor v. Mathieu Ngud- Unit, the ICC’s Victims’ Participation and ICC proceedings. Key civil society groups, jolo Chui on March 10, 2008. A con- Reparations Section, and local NGOs held including human rights organizations, firmation of charges hearing, originally two workshops in the Acholi sub-region women’s organizations, and former com- scheduled for May 21, 2008, began on of Uganda as part of the Unit’s con- batants, many of whom came from organi- June 27, and is expected to last until tinued efforts to reach out to the most zations based in other towns, attended the July 16. During the hearing, the Pre-Trial conflict-affected communities in Northern meeting in Bunia. The meetings provided Chamber will decide whether there is Uganda. Ninety local participants attended information on recent developments in the sufficient evidence for the Prosecutor to the workshop, including women, local cases of Thomas Lubanga Dyilo, Germain bring the case. Although cases are joined, leaders, and government officials from Katanga, and Mathieu Ngundjolo. The out- the suspects shall be accorded the rights 19 sub-counties of the Pader and Kitgum reach mission also provided information of individuals being tried separately. The districts. The Unit described the Court’s on the process of victim participation. Prosecution charges Katanga and Ngud- role and work, including the main func- jolo, members of Ituri Patriotic Resistance tions of its organs, the roles and rights The Béni outreach meeting followed Force (FRPI) and the National Integra- of victims, and how affected individuals the one in Bunia. While Béni suffered tionist Front (FNI), respectively, with co- may receive information through the Unit. directly from fighting in the region, it has responsibility for crimes committed during Leaders pledged continued commitment to also been a place of refuge for thousands and after a February 2003 joint attack on/ assist disseminating accurate information of people fleeing fighting in the bordering in the village of Bogoro in Ituri. about the ICC and urged the Unit to con- Ituri District. This was the first time that tinue targeting communities at a grassroots an ICC outreach mission traveled to Béni, On April 28, 2008, the Pre-Trial Cham- level. Other participants noted that the and over the course of six meetings, ICC ber unsealed the arrest warrant of Bosco workshops helped to dispel misconcep- personnel met with representatives from Ntaganda, also known as “The Termina- tions about the court. human rights, development, and religious tor,” who is also accused of enlisting associations; legal practitioners, including and conscripting children and using them From February 18 to 20, 2008, the the town’s public prosecutor; representa- actively in hostilities in Ituri. Ntaganda Outreach Unit held a civil-society work- tives of women’s associations; students; was Deputy Chief of Staff for Military shop in Bangui, Central African Republic and journalists. Participants reported that Operations of the Forces Patriotiques pour (CAR), where the Prosecutor’s office is the meetings dispelled misunderstandings la Libération du Congo (FPLC) and was investigating the 2002-2003 conflict. The about the ICC and reassured them about the allegedly directly subordinate to Thomas goal of the meeting was to develop an court’s transparency policy with regards to Lubanga. The warrant had previously been outreach strategy tailored to the CAR con- Lubanga’s upcoming trial. sealed to prevent Ntaganda from fleeing text, a goal the Unit sets for each context after its release and to protect witnesses, where it is active. In the CAR, the Unit On March 24 and 25, 2008, the ICC but the Prosecution and Registry have provided members of civil society, includ- organized outreach sessions for approxi- confirmed that the situation on the ground ing human rights groups, religious leaders, mately 300 police officers from the Bunia has changed, making it safe to unseal the trade unions, youth groups, journalists, and garrison. Sessions dealt with general prin- warrant at this time. lawyers, an opportunity to help shape the ciples of individual criminal responsibil- Court’s future activity in the country. ity, emphasizing crimes falling within the court’s jurisdiction. It was the first time In other outreach activities in the CAR, that these officers, many of whom fought ICC Prosecutor Luis Moreno-Ocampo met in militias before joining the national with victims and members of civil soci- police force, attended an ICC outreach ses- http://digitalcommons.wcl.american.edu/hrbrief/vol15/iss3/8 45 4 Drake et al.: Updates from the International Criminal Courts sions. Participants manifested a clear inter- set up a special court [to] prosecut[e] [the sibility for Security Council interference est in the ICC and requested more outreach LRA leader and his indicted colleagues in judicial proceedings contaminated the activities specially targeting women and for] war crimes and crimes against human- ICC’s independent character. The varying youths to discourage them from joining ity.” Prosecution would require acts of views were consolidated into three catego- militias that are still active in the region. Parliament and the adoption of war crimes ries: the first favored the ILC Draft Stat- They also agreed to continue supporting statutes, statutes regarding a special court’s ute’s approach prohibiting proceedings; the Unit, urging it to continue engaging in functions, offences to be tried and the the second opposed giving the Council direct dialogue with local communities. court’s specific jurisdiction. While not any role at all; and the third, a compro- dismissing the idea, Gadenya was pessi- mise position eventually adopted as Article The ICC continued outreach activi- mistic, noting that “It may not be possible 16, allowed investigations or prosecutions ties on March 29, 2008, initiating the first for Uganda to immediately set up a local unless the Council adopted a resolution exchange between the Court and inhabit- special court to try the LRA top command- under Chapter VII of the UN Charter. ants of the village of Bogoro, the alleged ers for war atrocities because we lack both theater of violent clashes that gave rise to the local and international laws governing The drafting history of Article 16 is Katanga’s and Ngudjolo’s prosecutions. the offence[s].” revealing, indicating that many delega- tions were concerned with maintaining the Ug a n d a Pe a c e Pr o c e s s A second possible resolution sought by ICC’s independence from Security Council the LRA is that the government of Uganda interference. Moreover, even where Article Relations between the ICC, the Govern- request that the Security Council defer 16 is used as a safety valve to maintain ment of Uganda and the Lord’s Resistance proceedings on the warrants for twelve international peace and security, reference Army (LRA) remain deadlocked with ICC months pursuant to article 16 of the Rome to the drafting history indicates that it warrants an apparent negotiating chip in Statute. Indeed LRA representatives said should only be envoked where prosecu- the peace and disarmament deals between the LRA would only disarm if arrest war- tion or investigations arise from a situation Uganda and the LRA rebels. The peace rants were deferred — a retreat from an that the Council is already dealing with deals are slowly moving forward, however, earlier position that group would only dis- under Chapter VII and would, therefore, creating subtle shifts in political tensions. arm if the ICC lifted arrest warrants. This interfere with Council efforts. Therefore, is a telling concession following months drafting history suggests that an Article On February 19, 2008, the LRA and of consistent refusals by the prosecutor, 16 deferral is inappropriate for the Uganda Government of Uganda signed an Annex- and supported nearly unanimously by the situation because proceedings would not ture — an annex to the Agreement on international community, to lift the war- conflict with Security Council initiatives Accountability and Reconciliation of June rants. The Security Council has the power in the area, and because allowing the 29, 2007 as part of bilateral peace nego- to defer prosecution for up to 12 months Ugandan Government to impede prosecu- tiations. Paragraph 7 of the Annexture under article 16, which provides that: tion through the Security Council would provides that a special division of the High clearly compromise the Court’s impartial- Court of Uganda shall be established to No investigation or prosecution may ity and independence — a move many try individuals alleged to have committed be commenced or proceeded with consider fatal to the Court’s integrity and serious crimes during the conflict. Para- under this Statute for a period of 12 very existence. graph 9 envisages enactment of legislation months after the Security Council, in a providing for the law applicable, rules of resolution adopted under Chapter VII Despite continued hopes for an alterna- procedure and recognition of traditional of the Charter of the United Nations, tive to the ICC, the LRA’s delegation in and community justice processes in the has requested the Court to that effect; The Hague continues to familiarize itself proceedings. that request may be renewed by the with the Court. On March 10, 2008, ICC Council under the same conditions. Registry Heads of the Legal Advisory Ser- Some Ugandans hope that such a court vices Section and the Division of Victims will provide the ICC a graceful mechanism The provision has its origins in Article and Counsels met with the delegation to for admitting that while Uganda did not 23(3) of the International Law Commis- provide an overview of the Court and its have the capability to try suspected war sion’s (ILC) Draft Statute prohibiting pros- organs, as well as the requirements for criminals at the time the indictments were ecution arising from a “situation” already including counsel on the Court’s list of filled, the special division serves this func- being dealt with by the Council “as a threat counsel and clarifications on procedures tion and now the ICC is no longer neces- to or breach of the peace or an act of aggres- and time limits for filing documentation sary. In any case, many seek to convince sion” under Chapter VII of the UN Charter, and materials with the Registry. In addi- the ICC that the matter can be handled unless the Council permitted otherwise. tion, the delegation was informed about internally. Civil society groups are skep- This was a highly controversial issue, with the ICC’s witness protection program. The tical, however, of the special division’s supporters emphasizing the need to prevent delegation asked to be furnished with ability to provide justice. Even officials of the Court from potentially interfering with various documents including warrants of the Ugandan judiciary recognize the sig- the Council’s duty to maintain interna- arrest, precedents for filing motions before nificant challenges an internal court would tional peace and security mandated under the Court, and the format for power of pose. Kampala High Court Registrar Paul Article 23(1) of the UN Charter. On the attorney. Gadenya, who worked for the ICC, said other hand, many delegations opposing the that Uganda “lacks the required laws to text pointed out that leaving open the pos-

Published by Digital Commons @ American University Washington College46 of Law, 2008 5 Human Rights Brief, Vol. 15, Iss. 3 [2008], Art. 8 Hy b r i d a n d In t e r n a t i o n a l i z e d The victim participating in Nuon Th e Wa r Cr i m e s Ch a m b e r o f Tr i b u n a l s Chea’s pretrial hearing also marked the t h e St a t e Co u r t o f Bo s n i a a n d first time that any international or hybrid e r z e g o v i n a Th e Ex t r a o r d i n a r y Ch a m b e r s i n H tribunal investigating war crimes, crimes t h e Co u r t s o f Ca m b o d i a against humanity, or genocide granted full The War Crimes Chamber of the State In 2008 the Extraordinary Chambers procedural rights to victims. The ECCC’s Court of Bosnia and Herzegovina (WCC) in the Courts of Cambodia (ECCC) has Internal Rules allow victims to participate has made recent strides in three trials slowly continued to take steps towards in the proceedings as civil parties. Civil involving indictees accused of genocide. trying former leaders of the Khmer Rouge. parties have rights similar to those of the The cases are particularly relevant because In particular, the ECCC progressed in the accused, and are able to participate in the the WCC has not convicted anyone of pre-trial process of Nuon Chea, one of five investigation, be represented by counsel, genocide to date, and such a conviction accused in ECCC custody. Although the call witnesses to the stand, question the would mark an important achievement. Court remains underfunded, it is making a accused, and argue for reparations. The Article 171 of the Criminal Code of Bosnia push to obtain the funding needed to suc- Court appointed four lawyers to represent and Herzegovina defines someone guilty cessfully complete the trial process. such victims of the Khmer Rouge. of genocide as:

In early February Nuon Chea, known as Along with the Court’s success in Whoever, with an aim to destroy, in “Brother Number Two” since he served as bringing detainees like Nuon Chea closer whole or in part, a national, ethnical, Pol Pot’s second in command, appealed his to trial, the Court has also run into prob- racial or religious group, orders the detention before the Pre-Trial Chamber. lems, such as the old age and poor health perpetration or perpetrates any of Nuon Chea, now 81 years old, has been in of the accused. In early February former the following acts: killing members ECCC custody since September 19, 2007. Khmer Rouge Foreign Minister Ieng Sary of the group; causing serious bodily He argued that his previous interactions was hospitalized several times. Sary also or mental harm to members of the with the Court were illegal because he has heart problems and appealed his deten- group; deliberately inflicting on the did not have a lawyer and did not waive tion in December 2007 due to poor health. group conditions of life calculated to his right to counsel. His current lawyer Sary’s health problems are illustrative of bring about its physical destruction in claimed that the investigating judges in the issues affecting the five detainees in ECCC whole or in part; imposing measures case violated criminal procedure rules by custody because of old age. If the accused intended to prevent births within the putting undue stress on the accused. On are not brought to trial soon, some fear group; forcibly transferring children March 20 the Pre-Trial Chamber denied they may die before they can stand trial. of one group to another group. his appeal, concluding the detention was The Court has also experienced fund- If convicted of genocide, there is a manda- needed to prevent the accused from inter- ing problems. A lack of proper fund- tory minimum ten-year sentence. The three fering with witnesses, tampering with evi- ing prompted ECCC officials to formally cases involve varying numbers of accused dence, and potentially fleeing the country. request additional funds from the United perpetrators carrying out different acts, Moreover, the Court pointed out that if Nations (UN) in March. Officials requested but all working in conjunction with Serb Nuon Chea were released, his safety could $114 million, which, if donated, would authorities. be at risk. increase the ECCC’s current budget of The first case — Prosecutor v. Mitrovic´ In the process of reaching its deci- $56.3 million to $170 million. The Court et. al., known as the Srebrenica 11 case sion regarding Nuon Chea’s detention, the needs additional funding to operate until or the Kravica case — implicates 11 men ECCC achieved a milestone when, for the March 2011, two years beyond the date accused of genocide perpetrated between first time, a victim took the stand to testify the ECCC initially projected. The ECCC July 10 and 19, 1995, as part of a wide- against a former Khmer Rouge leader. claims that disagreements with the Cam- spread and systematic attack on Bosniaks In charging Nuon Chea with war crimes bodian Bar Association regarding mem- inside Srebrenica, which was a UN-pro- and crimes against humanity, the Court’s bership fees for foreign lawyers, as well tected area at the time. The attack took investigating judges alleged that he partici- as procedural problems and language dif- place in the villages of Kravica and Sandic´ i pated in “murder, torture, imprisonment, ficulties, led to delays in reaching the and was allegedly part of a larger plan to persecution, extermination, deportation, trial stage. Major donors currently include partially destroy a group of Bosniaks. The forcible transfer, enslavement and other Japan, , Germany, Britain, and Aus- accused were involved in different capaci- inhumane acts.” At Nuon Chea’s pretrial tralia. Despite the ECCC’s successes, it ties, either as part of the Special Police hearing, Theary Sent, a Cambodian-Amer- will have to work hard to convince other Second Squad or as part of the Republika ican human rights advocate, described nations to contribute, due to corruption Srpska Army (VRS). Alleged perpetrators in court how her parents were killed in charges in hiring practices last year. secured a road between the two villages the genocide perpetrated by the Khmer to forcibly transfer approximately 25,000 Rouge. Nuon Chea disclaimed responsibil- women, children, and elderly Bosniaks ity and denied that genocide occurred in from Srebrenica. In addition, the accused Cambodia. allegedly detained several thousand Bos- niak men and subsequently handed over many to the VRS. The VRS then trans- http://digitalcommons.wcl.american.edu/hrbrief/vol15/iss3/8 47 6 Drake et al.: Updates from the International Criminal Courts ferred the Bosniaks, who have not been atrocities. Mirsada Malagic´ and protected it is early in the process, Kondic´ ’s case heard from since. Finally, the accused witness A41, a former member of the is worth following because it may yield a allegedly took part in executing a group Bratunac Brigade Military Police with the genocide conviction. of over 1,000 Bosniak male prisoners VRS, testified about civilian massacres detained at the Kravica Farming Coopera- taking place in the days following Sre- If the prosecution is successful in any tive warehouse. brenica’s fall. Milovan Djokic´ , a member of these three cases, it will be an important of the Bratunac Brigade, described how he step forward for the WCC. Successful The trial began in May and recently guarded buses transferring captives from genocide convictions serve as a further received new evidence from Richard But- Srebrenica to the town of Pilice. Zoran form of accountability for those found ler, a military analyst with the Prosecution Radosavljevic´ , a civilian from Pilice, testi- guilty of accompanying crimes. Such con- at the International Criminal Tribunal for fied that he saw buses outside a school in victions might also further reconciliation the Former Yugoslavia (ICTY). Butler tes- Pilice where Bosniaks transported from in Bosnia and help close a terrible period tified that the Special Police Forces acted Srebrenica were subsequently executed. in Bosnia’s recent past. HRB under VRS command, and claimed that Finally, Richard Butler, who also testified the VRS attacked Srebrenica in response in the Srebrenica 11 case, claimed Trbic´ Anna Katherine Drake, a J.D. candidate at the to attacks led by a division of the Army of was the officer in charge of the reburial Bosnia-Herzegovina. After the attack, the Washington College of Law, covers the ICTY of bodies in other graves. Butler testified for the Human Rights Brief. VRS proceeded to implement operations that Trbic´ ’s “task was to help . . . perform approved by Radovan Karadzic´ , then presi- the tasks related to the execution of prison- dent of the Republika Srpska. The original Rachel Katzman, a J.D. candidate at the Wash- ers, as well as the burial and transfer to ington College of Law, wrote the Prosecutor goal of the operation was to ensure that the new graves.” Butler explained such tasks v. Brima, Kamara & Kanu appeals judgment protected zone covered only Srebrenica “could only be performed by someone summary for the Human Rights Brief. and nothing more, but it allegedly led to who had detailed information on what was the crimes for which the indictees stand going on.” The testimony of these different Katherine Cleary, Assistant Director of the War accused. Butler also said documents he witnesses will play an important role in the Crimes Research Office at the Washington Col- reviewed revealed that Miloš Stupar, one outcome of Trbic´ ’s case. lege of Law, edited the judgment summaries for of the accused, commanded the Special the SCSL cases for the Human Rights Brief. Police Second Squad until August 24, The third pending genocide case 1995. Nine of the other indictees alleg- involves Vinko Kondic´ , suspected of Solomon Shinerock, a J.D. candidate at the edly belonged to this police squad, and the instigating the perpetration of genocide. Washington College of Law, covers the Inter- eleventh indictee, Milovan Matic´ , was a A member of the Executive Committee national Criminal Court for the Human Rights member of the VRS. By providing infor- of the Serbian Democratic Party (SDS) Brief. mation regarding the motivation for the Municipal Organization in Kljucˇ since VRS’s attack, and the leadership of the June 1991, Kondic´ allegedly perpetrated Howard Shneider, a J.D. candidate at the Special Police Second Squad, Butler added crimes against Bosniak and Croatian civil- Washington College of Law, covers hybrid valuable evidence to the record in a key ians. The specific crimes include stopping and internationalized tribunals for the Human WCC trial. a bus of Croatian refugees, who were sub- Rights Brief. sequently tortured and transferred to a con- Another genocide case now being tried centration camp, and assisting the round-up is the case of Milorad Trbic´ . Trbic´ , former of Bosniaks in Kljucˇ and surrounding assistant to the Chief of Security of the areas, who also were later transferred to Zvornik Brigade of the VRS and manager camps or summarily executed. Ironically, of the Military Police Company of that before being detained, Kondic´ served as brigade, is accused of genocide perpetrated additional defense counsel for Momcˇ ilo from July 11 to November 1, 1995. The Gruban, a Bosnian Serb currently on trial accused allegedly oversaw, controlled, and before the WCC for war crimes. Kondic´ participated in the executions and subse- was one of several attorneys approved to quent burials of Bosniak men in different serve as Court-appointed lawyers to defend locations. Trbic´ is accused of perpetrat- suspected war criminals. ing the execution of over 7,000 Bosniak men with the help of other VRS soldiers. The WCC recently confirmed Kondic´ ’s Furthermore, Trbic´ allegedly organized, indictment on March 4, 2008. The trial oversaw, and controlled the forced transfer process is still in its early stages, and on of Bosniak men from Srebrenica. March 24 a plea hearing was postponed because Kondic´ had not yet read the indict- Tribic´ ’s trial began November 8, 2007. ment. Kondic´ claims his failure to read the Since February, various witnesses have indictment was due to poor health and sub- presented eyewitness accounts of the situ- par conditions at the Correctional Facility ation in Srebrenica at the time of the in Doboj where he is detained. Although

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