Posts filed under 'International Humanitarian Law (Laws of War)'
February 13th, 2010 at 03:02pm
On February 7, a pre-trial chamber of the International Criminal Court (ICC) unanimously declined to confirm charges against Sudanese rebel leader Bahar Idriss Abu Garda. Mr. Abu Garda is the first person to appear voluntarily before the court. He had been charged with being a direct or indirect co-perpetrator of several war crimes, including murder, attacks against a peacekeeping mission, and pillaging. All of the charges arose from his alleged involvement in an attack on Sept. 29, 2007, against the UN’s African Mission in Sudan (AMIS) in North Darfur. The Chamber found that while the allegations were sufficiently serious and while the personnel and installations associated with the AMIS peacekeeping mission were entitled to protection as civilians and civilian objects, the prosecution had produced insufficient evidence to establish substantial grounds that Mr. Abu Garda had participated in the attack.
The prosecution, led by Luis Moreno-Ocampo, had produced statements of anonymous witnesses. However, the Chamber found the statements to be of diminished probative value as they could not be directly challenged by the defense. The Chamber further found them to be “weak and unreliable due to the many inconsistencies,” and held that they failed to establish substantial grounds to believe that Mr. Abu Garda participated in any common plan to attack the AMIS mission. Further allegations that Mr. Abu Garda was himself involved in the attacks were found insufficient as the witness statements did not establish that he was present at the time of the attacks.
The Chamber’s decision not to confirm the charges presents yet another setback to the ICC’s efforts regarding the Darfur situation. The issue of Darfur was first referred to the Court by Security Council Resolution 1593 on March 31, 2005, following an International Commission of Inquiry on Darfur. Of five defendants indicted in four separate cases relating to the region, four remain outside of the Court’s custody, including Sudanese President Omar Hassan Ahmad al-Bashir. The charge of genocide against Mr. al-Bashir’s also failed to gain confirmation by the pre-trial Chamber, although the appeals Chamber recently ordered lower court to reconsider its decision in light of additional and previously disregarded evidence.
It is expected that, as in the al-Bashir case, the ICC prosecutor will again seek to appeal the pre-trial Chamber’s decision on Mr. Abu Garda.
For more information, please see the Court’s press release (here) and the Chamber’s decision (here).
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November 15th, 2009 at 11:00pm
On Tuesday, November 10, the navies of North and South Korea exchanged fire in disputed waters off the western coast of the peninsula, damaging ships from both sides and reportedly killing a North Korean sailor. The incident began when a 215-ton North Korean vessel entered South Korean-controlled waters. Ignoring warnings from the South, the ship exchanged fire with two 130-ton South Korean vessels before re-crossing the border, reportedly in flames. The North, which claims the waters where the incident took place, has blamed the South for instigating the confrontation and issued repeated warnings through its state news service.
South Korea’s options in responding to this incident are limited. Seoul’s right to military retaliation is constrained by the ongoing border dispute. The end of the Korean War never produced a peace treaty, and the North and South have technically been observing a truce since 1953. The North has never accepted the current sea boundary, a UN-drawn border called the northern limit line, and its ships regularly stray into waters controlled by the South. In this context, the South cannot make an undisputed claim that its territory was invaded.
South Korea’s options for less direct action are similarly constrained. While the South could initiate economic sanctions and asset-freezing, it believes that such measures could add to the desperate poverty of the North’s citizens and slow the recent détente between the two countries. In a sign that the confrontation has not altered trade relationships, a North Korean freighter was allowed to enter South Korean waters yesterday on its way to Incheon. Meanwhile, any attempt to arbitrate the dispute before an international body would require the consent of one of the most isolationist regimes in the world.
The North has a history of initiating skirmishes in order to escalate pressure before major regional events; the last time the countries clashed was in 2002, while the South was hosting the World Cup. In this case, analysts believe, the North may be trying to send a message to President Obama, who is currently visiting the region and is scheduled to arrive in Seoul on Wednesday. North Korea wants a formal peace treaty to replace the 1953 truce, including reconsideration of disputed territory. It also wants bilateral negotiations with the U.S., which it believes could lead to its acceptance as a nuclear power. President Obama, who has made engagement with “rogue states” a cornerstone of his foreign policy, plans to send special envoy Stephen Bosworth to Pyongyang for talks over ending the North’s nuclear program.
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November 8th, 2009 at 11:22am
The hearing on the confirmation of charges against suspected Darfur war criminal Bahr Idriss Abu Garda at the International Criminal Court (ICC) ended on October 30th.Abu Garda, 46, is a leader of the United Resistance Front (URF), a rebel group fighting against the Sudanese government. He is suspected of war crimes allegedly committed during the attack on the African Union peacekeeping mission at the Haskanita military base in North Darfur on September 29, 2007.The attack resulted in the death of twelve UN peacekeepers and serious injury to eight others. Abu Garda’s alleged crimes, which fall under article 25(3)(a) of the Rome Statute, include murder, pillaging, and directing an attack against a peacekeeping mission.
Closing statements were made on October 29th and 30th. The Legal Representatives of the Victims emphasized that the orphans, widows, and survivors of the attack could never be truly compensated for their losses. “Victims will always be victims, but to see that justice is done will give them some comfort,” said Akin Akinbote, one of the victims’ four Representatives.
Prosecutor Fatou Bensouda alleged that Abu Garda was responsible for planning and executing the attack, in which 1,000 armed URF rebels attacked a base manned by African Union peacekeeping troops. The Prosecution further argued that their evidence established Military Group Site (MSG) Haskanita’s protected status under international law at the time of the attack, and that its personnel and property were entitled to the protection accorded to civilians. They noted that the Defence had presented no evidence to contradict this assertion.
Karim Khan, Abu Garda’s Defence counsel, argued that his client was not responsible for the September 29, 2007 attack on Haskanita. He also argued that Haskanita did not enjoy protected status when the attack occurred.
The court has 60 days from October 30th to determine whether the evidence against Abu Garda is sufficient for the case to go to trial. Abu Garda is the first alleged war criminal to appear before the ICC for crimes in Sudan.
For further information, please click here and here.
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November 1st, 2009 at 10:17pm
The legality of the U.S. Government’s use of unmanned Predator drones to target militants in Afghanistan and Pakistan has recently come under increasing scrutiny, as a prominent U.N. representative called the American refusal to discuss the program “untenable”. Philip Alston, the U.N. Special Rapporteur for Extrajudicial, Summary, or Arbitrary Executions, made his remarks while reiterating requests for the U.S. to provide information on the legal rationale for its use of the drones, the mechanisms it uses to review the program, and the precautions it takes to make sure its air strikes conform with international law.
The debate over the legality of remote-controlled air strikes turns largely on the question of whether the American pursuit of terrorists represents an active armed conflict analogous to a conventional war between nations. As such, the debate over the drones is one example of the broader disagreement which has resulted from the application of international humanitarian law (IHL) to the “war on terror.” IHL, which regulates armed conflict between states, requires the existence of an active conflict, and only applies within the geographic limits of that conflict. Within these limits, IHL authorizes the killing of enemy combatants, including remotely, subject to limitations meant to assure that the use of force is necessary, minimally injurious to civilians, and proportional to expected military gains. Outside a zone of active conflict, however, IHL does not apply, and the U.S. ability to kill individuals without according them due process of law is restrained by a 1976 executive order against assassinations and, arguably, by international human rights law.
While some observers would call Afghanistan a zone of active conflict, far fewer would apply that description to Pakistan, and drones operated by the C.I.A. have been active in targeting militants there, including Taliban leader Baitullah Mehsud, who was killed in August. American drones have also targeted militants in Yemen. In extending IHL to cover these strikes, supporters of the program have argued for the application of IHL wherever terrorists are found, not merely within geographically bounded zones of conflict. This is a novel argument, and as such, the use of Predators to target individuals outside the “war zones” of Afghanistan and Iraq arguably represents a violation of international law. It also represents a sharp departure from pre-9/11 U.S. policy, when C.I.A. drones were limited to conducting surveillance and the U.S. Government criticized Israel for conducting targeted killings of Palestinian militants.
Supporters of the C.I.A. program have argued that, whether or not IHL applies to the air strikes, they are lawful under both the UN Charter and the 2001 Authorization for the Use of Military Force (AUMF) as a form of “anticipatory self-defense.” But opponents point to the principles of sovereign equality and non-intervention in the affairs of other states, arguing that individuals outside active war zones should be brought to justice through domestic processes of law. The question of whether the air strikes are proportional under IHL is also debated; the New Yorker reports that the effort to kill Baitullah Mehsud involved a series of 15 air strikes killing more than 200 other people. Finally, the loosening of geographic restrictions on state-sanctioned lethal force raises the uncomfortable prospect of an amorphous, global definition of conflict, which other states or non-state actors could potentially use to target Americans.
The practical value of the C.I.A. program is also debated. While the use of Predators has been credited with eliminating numerous Al Qaeda leaders and sowing confusion within the organization, it has also led to many civilian casualties, which has rallied anti-American sentiment in the very places where the U.S. is trying hardest to win “hearts and minds.” Another criticism of the program is that electing to kill terrorists rather than capture and interrogate them reduces the intelligence the U.S. can gather on its enemies; proponents of this argument point to the potential information value of Saad bin Laden, one of Osama’s sons, who was killed by a Predator strike in Pakistan. Finally, the recent inclusion of prominent Afghan drug traffickers on the list of acceptable targets has led critics to wonder whether there is any coherent policy limiting the use of the drones to individuals who pose a direct threat to the United States.
Whatever the legal and practical arguments for or against the use of unmanned air strikes against non-state actors, they are unlikely to end in the near future. In the rugged, inaccessible areas where many militants operate, the U.S. Government often believes that it has no good alternatives to the drones. Facing resistance to its plans to increase troop levels in Afghanistan, the Obama administration may make remote-controlled warfare an ever more central part of its counterterrorism strategy.
For further information, please click here and here.
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November 1st, 2009 at 10:07pm
On Thursday (10/29), the European Court of Human Rights (ECtHR) released its ruling on three cases concerning disappearances in Chechnya. In one of the cases, the victim, Mayrudin Khantiyev, had been abducted from his home by a group of masked men. In the other two cases, the victims, Yusup Satabayev and Kazbek Vakhayev, disappeared while in Russian detention. In all three cases, the Court rejected Russia’s arguments that the men had not been under Russian control at their time of disappearance and awarded the victims’ families a combined total of 130,540 euros for Russia’s violations of the victims’ rights under the European Covenant on Human Rights.
These cases fall in a steady stream of petitions to the Court concerning events in Chechnya—by some estimates up to 400. The Court has now issued judgments in 120 of these cases and has developed evidentiary presumptions for the Chechen context, which it applied to the cases at hand.
For example, the Court has before held that it will draw a negative inference from Russia’s refusal to turn over investigative reports—despite the fact that Russia’s domestic law bans the government from doing so. The Court relied on such an inference to reject Russia’s claims that Satabayev and Vakhayev had been released from Russian detention before they disappeared. Furthermore, the Court made reference to factual presumptions arising from Russia’s “exclusive control” of the area from which Khantiyev was abducted—as well as Russian guards’ “blatant passivity” in response to the event—in rejecting Russia’s contention that Khantiyev’s abductors had not been Russian agents.
In analyzing claims relating to the victims’ right to life, the Court referred to a much stronger evidentiary presumption that it first developed in the 2006 case of Imakayeva v. Russia: “[I]n the context of the conflict in the Chechen Republic, when a person is placed in detention without any subsequent acknowledgement of the detention, this can be regarded as life-threatening.” In other words, the Court will presume someone dead when it is established that they disappeared under Russian control.
Ole Solvang, Executive Director of the Russian Justice Initiative, suggests that such victim-friendly evidentiary presumptions have developed in the Chechen disappearance context due to the fact that “[t]he frequent lack of evidence concerning the fate of the victim and the identity of the perpetrators makes it difficult for a court to hold individuals responsible for the disappearance of a person.” The problem is also widespread, with a Human Rights Watch (HRW) report from 2005 already estimating that some 5,000 people had disappeared in Chechnya at the hands of military and security forces since the outbreak of hostilities in 1999—occurrences that in the aggregate HRW calls a crime against humanity.
HRW’s allegations, based not on human rights law but rather on the laws of armed conflict or international humanitarian law (IHL), remind us that the line of Chechen cases before the ECtHR are part of a larger trend of victims of wartime atrocities turning to human rights tribunals to air their claims in the absence of effective enforcement for the laws of war. Last summer’s armed conflict in South Ossetia, for example, has given rise to a flurry of additional cases before the ECtHR as well as a claim by Georgia before the International Court of Justice (ICJ) that Russia’s actions violated the Convention on the Elimination of Racial Discrimination—a case that the ICJ accepted on the bases of the Convention even though it would not have been able to hear it without Russia’s consent had it been brought under IHL.
There are different views on the merits of translating wartime activities into claims under human rights instruments designed for peacetime, but one result of the trend is clear from the ECtHR’s treatment of the Chechnya cases. While IHL generally applies different law to different individuals based on their status as a civilian or member of an armed group, human rights courts seem generally willing to substitute their functional tests that look beyond membership to the individual characteristics of the victim. In the present three cases, for example, the Court made no distinction between Satabeyev, who had been a member of a rebel group, and the other two victims, who had not.
In other cases, the Court has further proved willing to enforce the protections provided by human rights law even when IHL would explicitly have offered lesser protection. For example, in the 1996 case of Bazorkina v. Russia, the Court found that a rebel detained while in active combat enjoyed the extensive procedural rights afforded by the Convention—as opposed to the low level of protection provided to combatants in non-international armed conflicts by Article 3 common to the 1949 Geneva Conventions.
Notwithstanding their legal victories, family members of victims in Chechnya still bemoan Russia’s continued unwillingness to help them locate the bodies of their loved ones, according to a HRW report published last month. Nevertheless, with some 300 cases still pending before the ECtHR on the Chechen conflict alone, as well as new cases from the South Ossetian conflict now on the dockets of the ECtHR and ICJ, it is unlikely we will soon see the end of war victims turning to human rights law for reparation.
For further information, please click here.
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April 20th, 2009 at 02:34pm
Spanish Attorney General Candido Conde-Pumpido has declined to open an investigation in Spain’s National Court into whether six top Bush Administration officials sanctioned torture at Guantanamo Bay. While Spain’s courts do have jurisdiction in the case of war crimes and torture under the doctrine of “universal justice.” Conde-Pumpido declared that the most proper forum for such an investigation would be in United States’ court system, not Spain’s.
The “Bush Six”, as they have come to known, have been accused of using legal opinions to advise the Bush Administration that it would be acceptable to ignore the Geneva Conventions and narrowly defining which interrogation techniques constituted torture. They are named in a complaint filed by several human rights lawyers.
Spanish Judge Baltasar Garzon, who is presiding over the case, is most well-known for indicting Chilean ruler Augusto Pinochet over the objections of prosecutors. However, Conde-Pumpido is Spain’s top law-enforcement official and would have the final say. A formal announcement is expected April 17.
For more information, click here.
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April 12th, 2009 at 05:51pm
Last Tuesday, the Former Peruvian president Alberto Fujimori was convicted of “crimes against humanity” for his role in the 1990s killings and kidnappings by security forces when his government fought against leftist guerrillas. He was sentenced to 25 years in prison. Notably, this verdict marks the first time an elected head of state has been tried and convicted of a human rights crime after extradition back to his home country. The three judge panel found Fujimori guilty of “creating and authorizing a military intelligence death squad that killed innocent people.” (WP).
During the trial, which lasted 16 months, Fujimori argued he was a wartime president protecting the people of his nation, and he never ordered the killings perpetrated by the Army Intelligence Service. Judge Cesar San martin disagreed and held that Fujimori had clearly authorized the creation of the death squad.
Fujimori’s political movement remains popular. His followers currently hold 13 out of 120 seats in Peru’s Congress. Fujimori’s daughter, Keiko Fujimori, is campaigning for the Peruvian presidency and has vowed to appeal the conviction.
For further information, please click here and here.
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April 5th, 2009 at 12:34pm
On Wednesday, former Peruvian President Alberto Fujimori defended his innocence with regards to human rights abuse claims in a Rio De Janeiro court. Taking the stand in his own defense, Fujimori vehemently denied responsibility for the murders of 25 people and the kidnappings of 2 others.
These charges stem from alleged actions taken by the Peruvian government under Fujimori in response to a series of bloody guerrilla attacks in Peru in the early 1990s. Defending his policies and actions, Fujimori declared, “I did nothing wrong . . . The Peru that I inherited was a disaster. It was a Peru that had to be rescued.”
Concerns over Fujimori’s health have lengthened the trial, now in its fifteenth month. Fujimori is believed to be the world’s first democratically elected former president to be tried for human rights violations in his own country.
For further information, please click here.
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April 3rd, 2009 at 12:17pm
Last week, the Hague District Court ruled on the case of Joseph Mpambara, a Rwandan Hutu allegedly associated with the 1994 Rwandan genocide. The court found Mpambara guilty for the deaths of two Tutsi mothers and their children as well as for the torture of a German doctor, his Tutsi wife and their 2 month-old son. Mpambara was acquitted of charges that he was involved in the massacre of hundreds of Tutsis who had fled to a church, for the rape of four women, and for the subsequent murder of one of them.
The court found sufficient evidence that Mpambara had called for two Tutsi women and at least four of their children to be dragged from an ambulance and brutally slaughtered as they were fleeing violence. However, the court was not able to find sufficient evidence in the testimony of five witnesses that linked Mpambara to the massacre of hundreds of Tutsis seeking refuge in a Seventh-Day Adventist church in April 1994. Only one witness linked Mpambara to the rapes, which is insufficient under Dutch law.
Mpambara was not convicted of war crimes because the court reasoned that the killings of the Tutsis and the torture of the German-Tutsi family was not part of the war between Rwanda and Tutsi rebels. The war, which took place between April and July 1994, led to the killing of nearly 500,000 people by Hutu militias.
Mpambara had sought asylum in the Netherlands, giving rise to the criminal investigation against him. Dutch law holds residents liable for war crimes and torture committed in other countries. Mpambara was sentenced to 20 years, but the court stated that this sentence did not “do justice to the seriousness of [his] crimes.”
For more information please click here.
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March 21st, 2009 at 06:37pm
Sudanese President Omar al-Bashir rallied Arab supporters in Darfur by stating no war crimes court or the U.N. Security Council can touch “even an eyelash” on him in response the the International Criminal Court’s (ICC) arrest order for him. President al-Bashir denounced the west for trying to “create chaos in Sudan” and attempting to split Darfur from the rest of the country.
The ICC accuses President al-Bashir of orchestrating the atrocities against civilians in Darfur. 2.7 million have been driven from their homes while as many as 300,000 people have been killed. In response to the arrest warrant, the Sudanese government expelled 13 large foreign aid agencies, mostly those operating in Darfur. According to U.N. estimates, the expulsion of these groups threatens more than 3 million people with the loss of food, health care, and suitable drinking water. U.S. Secretary of State Hillary Clinton called on the Sudanese president to reverse the expulsion order because of the humanitarian crisis.
For further information, please click here.
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