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Forum for International Criminal Justice Newsletter: April 2015

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Forum for International Criminal Justice Newsletter: April 2015 Forum for International Criminal Justice Newsletter: April 2015 Welcome to the IAP’s Forum for International Criminal Justice (FICJ) April 2015 Newsletter which focuses on the prosecution of war crimes, crimes against humanity and genocide, including a roundup of video highlights, publications,events and the major news developments from the past month. Please note that the items included in this publication do not automatically carry any endorsement from the IAP. Domestic legal news covered in this Newsletter includes: Poland court clears soldiers of Afghanistan war crimes; Bosnia's war crimes court marks 10th anniversary with more than 450 prosecutions; US- Trained Iraqi Forces Investigated for war crimes; Sri Lanka president Sirisena pledges war crimes inquiry; and German prosecutors are investigating members of the Syrian government for crimes against humanity. *Please have a look at the FICJ forum page on the IAP website and feel free to contribute: the Forum provides individual prosecutors with a password protected space to post news, announcements, etc. and to pose questions to fellow prosecutors from around the world. Your contributions will also be posted in this monthly newsletter. Passwords are provided to IAP members – if you do not have a password, check your membership status by contacting the IAP Office Manager, Evie Sardeman: [email protected]. Danya Chaikel – FICJ Coordinator | email: [email protected] Video Highlights Click here to watch the International Click here to watch an Aol video clip on Criminal Court’s (ICC) welcoming Join the FICJ community: WWW.IAPSerbian-ASSOCIATION.ORG/FICJ Prosecutors’ first arrests/HOME of suspects ceremony to the State of Palestine which of the Srebrenica massacre, “a milestone in1 became the 123rd State Party to the Followhealing us the on woundstwitter: of @iaprosecutors Europe's worst Rome Statute, the ICC’s founding treaty. civilian slaughter since World War II.” New Book: Sovereignty and Justice: Balancing the Principle of Complementarity Between International and Domestic War Crimes Tribunals, by Dr Mark Ellis Mark Ellis is Executive Director of the International Bar Association (IBA). Dr Ellis served as Legal Advisor to the Independent International Commission on Kosovo, and was appointed by the OSCE to advise on the creation of Serbia's War Crimes Court and acted as legal advisor to the defense team at the Cambodian War Crimes Court (ECCC). He was actively involved with the Iraqi High Tribunal, and is a member of the Disciplinary Advisory Panel to the Defense Counsel for the ICTY and ICTR. The drafters of the ICC's founding document, the Rome Statute, foresaw what would become the main challenge to the Court's legitimacy: that it could violate national sovereignty. To address this concern, the drafters added the principle of complementarity to the ICC's jurisdiction, in that the Court's province merely complements the exercise of jurisdiction by the domestic courts of the Statute's member states. The ICC honours the authority of those states to conduct their own trials. This book asserts that the principle of complementarity, both dynamic and powerful, is the key legal underpinning for domestic jurisdiction of international crimes, and has been the impetus for the rise of a new trend toward domestic war crimes prosecutions. However, if the principle of complementarity is to be applied, states must ensure that their own judicial systems and trials are consistent with international standards of independence and fairness. At a minimum, states will have to adhere to standards of due process found in international human rights instruments. In addition, for complementarity to work, the ICC must be willing to actively support, embrace, and implement the principle. If the Court holds on too tightly to a self-aggrandising view of its role in promoting international justice, then it will lose all credibility in the eyes of nation states. Finally, the international community, in calling on states to address war crimes committed within their borders, must provide some of the financial, technical, and professional resources that many struggling states need in this endeavour. This book sets forth several innovative recommendations to fulfil these goals in order to strengthen and unify the principle of complementarity between the ICC and nation states so as to make future domestic war crimes courts work more effectively. Read more on ordering Sovereignty and Justice and receiving a 20% discount Join the FICJ community: WWW.IAP-ASSOCIATION.ORG/FICJ/HOME 2 Follow us on twitter: @iaprosecutors Commentary The Rules Have Not Changed Regarding Armed Conflict Originally published: 30 March 2015, JURIST, by Professor David M. Crane of Syracuse University College of Law and former Chief Prosecutor, Special Court for Sierra Leone 2002-2005. Shortly after three planes went into three buildings on September 11, 2001 the chief law enforcement officer of the US, Attorney General Albert Gonzalez declared that the Geneva conventions were quite out dated. This amazing and naïve statement followed a similar declaration by then President George W. Bush that the "rules have changed" related to fighting terrorists. These statements set off a series of policy missteps that led to Guantanamo, Abu Ghraib, Bagram AFB, secret prisons in Eastern Europe and North Africa and the perceived loss of the moral high-ground by the US related to conflict in the 21st century. No longer that "bright and shining city on the hill" the US continues to limp into the new century not as a leader regarding the international Professor David M. Crane rule of law, but only as a participant in a series of kaleidoscopic events that seem to challenge the very foundation of the rule of law, particularly the laws of armed conflict. At no time is the rule of law more needed than now in this apparent "age of extremes". Do the rules really need to be changed? A recent trial shows those rules do not need to be changed, just followed. Four Polish soldiers were found not to have committed war crimes in an incident in 2007 where civilians were killed. Poland had been part of the NATO led coalition in Afghanistan for 12 years. A military court found that they did not intentionally target civilians, a war crime if proven. The military judges did find them negligent in following orders, a dereliction of duty type offense in the US military. The press seemed to take this as some type of failed judgement. I consider it an affirmation that the laws of armed conflict are alive, vibrant and being used in the way contemplated by the drafters and followed for over 60 years by nations involved in conflict situations. The laws of armed conflict state that no civilians can be intentionally targeted. The law recognizes that in the heat of combat there are collateral effects to the battle to include civilian deaths excusable in law. Additionally the laws of armed conflict require that all signatories to the Geneva Conventions, when faced with allegations of a war crime investigate, prosecute (under their Join the FICJ community: WWW.IAP-ASSOCIATION.ORG/FICJ/HOME 3 Follow us on twitter: @iaprosecutors domestic system of justice) or hand the alleged perpetrators over to a party to the conventions willing to prosecute for the war crime. The Poles appear to have followed not only the spirit but the letter of the law. They investigated the civilian deaths and charged the four soldiers with war crimes under Polish domestic law. The outcome was decided in a fair and open trial. The fact that it was not proven that they intentionally targeted those civilians was up to the trier of fact in that domestic prosecution. Hence the outcome as reported. This shows that the rules are working and they do not have to be changed. The NATO coalition followed the laws of armed conflict. The coalition does investigate and hand over perpetrators to member domestic systems for resolution. Though not perfect, the record does show that coalition forces do hold accountable members of their armed forces who violate the laws of armed conflict in trials and courts-martial. A further review of the record shows that in combat the coalition followed the law despite the fact that the Taliban and various terrorist groups ignored the law in almost all instances to include the intentional killing of civilians. This is another important tenant of the laws of armed conflict that despite the fact that the other side ignores the law signatories are bound to follow the laws of armed conflict. It is not intended for this opinion to gloss over and ignore other acts committed by the coalition, particularly the US, as it related to torture and other inhumane acts. These too violate the rule of law at many levels. As noted before, the statements made by the Bush administration led the US down a very slippery slope to where they were operating at the same level as the Taliban and others operating in the extreme related to torture. In this apparent age of extremes we should continue to fight extremism using the rule of law, such as the laws of armed conflict and a system of laws that are practical and flexible enough to ensure that the battlefield is governed by rules that protect and regulate a given condition—war and conflict. The laws of armed conflict minimize the horror and allow for a return to possible stability at its conclusion. As stated by Albert Einstein decades ago: As long as there are sovereign nations possessing great power, war is inevitable. Read the full commentary on the Jurist website Join the FICJ community: WWW.IAP-ASSOCIATION.ORG/FICJ/HOME 4 Follow us on twitter: @iaprosecutors Advanced Course on International Criminal Law Special Focus: Gender Justice, 24 August – 4 September 2015 Offered by The Hague Academy of International Law in cooperation with the Grotius Centre for International Legal Studies of Leiden University and with the kind support of the Ministry of Foreign Affairs of the Netherlands The course, to be given for the first time, provides in-depth understanding, discussion and training in theory and practice of International Criminal Law.
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