International criminal justice is making inroads in fighting impunity

Ruth Green

In a year characterised by high-profile convictions of former heads of states for war crimes, an illuminating session at the IBA Annual Conference examined the effectiveness of today’s international justice system in fighting impunity.

Although 2016 has witnessed landmark convictions at the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Extraordinary African Chambers in Senegal, Dr Mark Ellis, Executive Director of the IBA, kicked off proceedings with a cautionary note: ‘Between 1945 and 2008 7.8 million people lost their lives in 253 distinct armed conflicts. If you added victims of repressive, authoritarian state regimes – and the lost lives, the consequences of armed conflict, their number would rise to over 202 million. This does not include those injured or displaced. And up to 2008 only 823 persons have been indicted by international or regional courts for violations of international law.’ 

On the face of it these figures don’t make for good reading, but Professor Diane Orentlicher, who served as Deputy for War Crimes Issues in the US Department of State (2009-2011) was quick to point to considerable progress, particularly given the recent conviction of Chadian dictator Hissène Habré in Senegal. ‘When I started working in this field it was the norm that there was impunity for atrocious crimes,’ she said. ‘It was the norm and it was considered a fairly radical proposition to suggest the architects of mass atrocities would be held to account.’
 ‘[The Habré conviction]… would have been inconceivable ten years ago, so I think we’re all supporting a process that we know will take a long time but when you see milestones like that you understand that this is a verdict and a change that has a real impact on the lives of victims and human beings.’

Professor Jane Stromseth, who served as Deputy to the Ambassador-at-Large in the Office of Global Criminal Justice in the State Department from 2013-2015, struck an equally optimistic note, praising the shift from impunity to accountability: ‘While clearly there are a lot of gaps and there are a lot of people who are committing horrible crimes all around the world that are not being held to justice… it takes many years to hold people to account in many different conflict situations but the arc of history, the trend of history is towards accountability.’

The ICC’s recent convictions of Jean-Pierre Bemba and Ahmad Al Faqi Al-Mahdi are cases in point. The Bemba case marked the first time the ICC had focused on rape as a weapon of war, while Al-Mahdi is the first Islamic militant to be convicted at the court. It was also the first time the ICC had focused solely on cultural destruction as a war crime.

Yet ongoing criticism over delays at the court and accusations of bias continue to cast a shadow on the court’s achievements. David Crane, founding Chief Prosecutor of the Special Court for Sierra Leone and a former member of the IBA War Crimes Committee Advisory Board, told Global Insight that he sees domestic courts as the way forward.

‘The future of modern international criminal law is not the International Criminal Court... the future is training and teaching state parties to their own paradigm how to prosecute at the domestic level,’ he said.

‘That is a future we need to focus on, with back-up by the ICC and also, where circumstances dictate, using various other successful models like the Special Court for Sierra Leone, which was the last major tribunal to be created and the first to actually finish – it did its work completely in ten years. [This shows] it can be done efficiently and appropriately under law in a fairly quick time and I think the Special Court model shows that it can be done.’

Political challenges

While accusations of political bias remain a major challenge for prosecutors, both at the ICC and other war crime tribunals, two other former members of the IBA’s War Crimes Committee Advisory Board said the failure of several global powers to endorse the ICC wasn’t helping matters: ‘The Prosecutor faces a complete wall of obstruction from a whole variety of states – a lot of states aren’t cooperating and Africa is very difficult right now,’ said David Tolbert, former Deputy Chief Prosecutor of the ICTY. ‘The problem which I think is somewhat undermining some of these efforts is that the great powers have not joined the International Criminal Court – the US, China and Russia – and it has led – not necessarily fairly – to perceptions that it’s justice for the weak and not for the strong.’

Professor David Scheffer, who served as the first US Ambassador-at-Large for War Crimes Issues in the Clinton administration, agreed this was creating a considerable challenge to the ICC’s work. ‘I think we can look to those three permanent members – the US, Russia and China – as creating very difficult dilemmas for the ICC by using the Security Council, but then not using it effectively to either pay for this work that has been asked for by the Security Council... not allocating funds for it and also not using the power of the Security Council to help the Prosecutor undertake her duties of investigation and actually ultimately of custody of those whom she indicts,’ he said during an interview with Global Insight.

Crane told Global Insight that their failure to sign and ratify the Rome Statute had weakened the Security Council’s influence over the ICC: ‘It’s actually a double-edged sword: not only are they permanent voting members of the Security Council, but they’re not even in the Rome paradigm system, which the rest of mankind says [together] we’re going to hold people accountable for atrocity’.

Although Scheffer believes US ratification is a long way off, he urged President Obama to continue pushing the agenda. ‘He has a unique opportunity before he leaves office – and I suggest this could happen anytime between now and 20 January 2017 – which is he has full authority as President of the United States to send a letter to the Secretary-General of the UN – which is the depository for the Rome State – and simply revoke the May 2002 letter that the George W Bush Administration sent in. [Obama can]simply say that from henceforth the US resumes its full recognition as a signatory state [and] the responsibilities of a signatory state, which are: we are not here to undermine the Rome Statute, we are actually cooperating and collaborating etc.'

‘That letter doesn’t mean we’re going to ratify it – it could take many, many more years for the US to reach that moment, but it would, I think, have a tremendous impact internationally, certainly with the 124 member states of the ICC. I think they would see the US as resuming its sense of legitimacy in the process of international criminal justice through this very important instrument – the ICC.’

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Russian media lawyer Galina Arapova wins IBA Human Rights Award

The winner of this year’s IBA Human Rights Award has been working for freedom of expression and information for over 20 years. She is the Director and a senior media lawyer at the Mass Media Defence Centre, the only Russian NGO providing advice to Russian journalists. Arapova has defended small local and regional newspapers, regional television networks, national newspapers and online publications, as well as The New York Times in the Russian courts.

Arapova’s award is in recognition of her outstanding commitment to the protection of fundamental freedoms in Russia and was presented by IBA President David W Rivkin at the IBA Annual Conference in Washington, DC. Working in a country ranked 148th in the 2016 World Press Freedom Index, Arapova has fought over 400 court cases domestically and at the European Court of Human Rights.

Due to the politically-sensitive nature of her cases, Arapova has faced judicial harassment and a number of serious threats.

Arapova is also Trustee and Vice-Chair of ARTICLE 19, an international organisation defending freedom of expression and information. She serves as an expert advisor for the Council of Europe’s HELP (Human Rights Education for Legal Professionals); lectures at Voronezh State University and the Swedish Media Institute; and is widely-respected for her work in training judges on how ECHR Article 10 fits into Russian legislation.

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IBAHRI calls for accountability and reform following the death of Kenyan lawyer, Willie Kimani

The IBAHRI has called on the Government of Kenya to bring to justice those responsible for the deaths of lawyer Willie Kimani, Josephat Mwenda and Joseph Muiruri as a matter of priority. All three were reportedly tortured and killed by Kenya’s Administration Police (AP). The IBAHRI joins appeals for an independent, impartial and effective criminal investigation to be held without delay.

Kimani had undertaken work with non-governmental organisation the International Justice Mission to provide legal assistance to Mwenda, a young motorcycle taxi driver who was reportedly shot and injured in April 2015 by two plainclothes AP officers and was thereafter a victim of police threats and intimidation.
On 23 June 2016, Kimani and his client were leaving court when they were abducted. Along with their taxi driver Muiruri, they were unlawfully detained and killed, allegedly at the hands of AP officers. Eight days later, on 1 July, the bodies of the three men were recovered from a river in Ol Donyo Sabuk, bearing the marks of brutal violence.

Read the full news story on the IBA website.

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Turkey’s mass removal of judges ‘disregards international legal standards’

Turkey’s mass dismissal of judges and prosecutors since the attempted coup on 15 July has raised serious concerns about the deterioration of the country’s judicial independence and the rule of law.

Following the sudden decision of the Turkish Supreme Board of Judges and Prosecutors (HYSK) to remove more than 2,500 judges and prosecutors, IBAHRI called on the government to respect its international obligations and avoid undue mass targeting of state institutions such as the judiciary. Since then, it has been reported that a further 543 judges and prosecutors have been removed, bringing the total number of dismissals to 3,288. Moreover, subsequent to their dismissals, a large number of these prosecutors and judges, including members of the HYSK, are reported to have been arrested, detained and charged under offences listed in the 15th Section of the Turkish Penal Code Offenses against Constitutional Order and Operation of Constitutional Rules.

IBAHRI Co-Chair, Ambassador Hans Corell (ret.) stated: ‘This sort of blanket dismissal is in direct conflict with Turkey’s Constitutional protection for judges’ security of tenure and against unfair dismissal. It also disregards international legal standards, such as the UN Basic Principles on the Independence of the Judiciary, which provide that all decisions related to judicial suspension and dismissal should be the result of a fair hearing and be subject to an independent review.’

 

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Torture exacts unjustified costs from society, says UN Rapporteur

Ruth Green

The use of torture is unjustified and is taking its toll on the US and other nations, according to Juan Méndez, the United Nations’ Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.

Méndez, who is preparing to step down after his second term as Rapporteur at the end of October, told Global Insight at the IBA Annual Conference in Washington, DC that despite progress in torture prevention during his tenure, there was still a strong need to dispel the myth, particularly in the US, that torture reaps results. ‘What I find hard to enter into a rational discussion about is this sense that maybe it’s justified because it works – it really does not work,’ he said.

Méndez highlighted the US Senate’s 2014 report on the Central Intelligence Agency’s detention and interrogation programme as a case in point: ‘The Senate Select Committee on Intelligence report proved that a lot of the claims that the CIA made about how they had prevented attacks... because they’d tortured people were completely wrong. They were not only wrong, they were fallacious and mendacious.’

Indeed, Robert Mueller, who served as Director of the Federal Bureau of Investigation (FBI) – the CIA’s domestic counterpart – from 2001-2013, said in a 2008 interview with Vanity Fair that he didn’t believe enhanced interrogation techniques had thwarted attacks on the US. Early in his tenure he insisted the FBI should not participate in future CIA interrogations that use extreme techniques.

Three years on, when asked by Global Insight about the efficacy of torture as a method of eliciting information, his answer was unequivocal: ‘I haven’t changed my mind. I haven’t changed my mind on our capabilities on using the process of rapport-building [instead of torture].’

Méndez said a rise in public references to torture in the run-up to the US presidential elections was helping fuel this misconception. ‘I think 9/11 was a turning point, not so much because of the practices of the George W Bush Administration – that of course had a lot to do with it – and now the threats that we hear from Donald Trump about bringing back torture, but also because I think that popular culture generally has persuaded us that it’s okay if policemen torture the bad guys,’ he said.

‘Or if it’s not quite okay, at least it’s okay because it keeps us safe or results in solving crime etc. Just having a rational discussion about not only the immorality and illegality of torture, but also the fact that it doesn’t work, that it actually exacts costs from society that really do not justify whatever the immediate gain we may get from actually torturing somebody. That I think is the greatest challenge that we have.’

Focus on Guantánamo

During the conference Cori Crider, Director of Reprieve’s Abuses in Counter-Terrorism team from November 2009 to July 2016, spoke at an IBAHRI showcase session on ‘Human Rights in the United States – a letter to the next President from the international legal community’.

Prior to the session, Crider, who has represented dozens of Guantánamo Bay detainees over the past seven years, toldGlobal Insight that regardless of the election results she didn’t see the notorious prison camp closing any time soon. ‘The space that has been cleared away for [what are] frankly Islamophobic statements, policies and lines in the United States is huge now – it’s absolutely massive,’ said Crider. ‘So even if Hillary Clinton assumes the presidency, Republicans in Congress will continue to seek to stymie releases of years-cleared men from Guantánamo Bay who were never any threat to anybody. They will resist strenuously, and, for nakedly partisan reasons, any effort to shut down the prison. So yes it is going to be very, very difficult.’

‘It won’t be closed in this term but it’s equally clear that it will close one day’, she added. ‘It will close and it will be seen as a terrible chapter in American history just like the detention of Japanese Americans on US soil during World War II. The only question is when. A President Trump would clearly swell the ranks of Guantánamo, so what happens next is anybody’s guess.’

Baroness Helena Kennedy, Co-Chair of the IBA Human Rights Institute, who chaired the session, said the issue of torture and with it, the protection of human rights, should be a top priority for whomsoever is elected as the next US President: ‘I think we should be concentrating on the issues where the United States, because of its incredible remit in the world and its status as a guiding nation, where we feel that its influence should never be undermined and that actually sets the moral tone. That’s why I think torture has to be really high up on the list.’

Despite concerns over the future of Guantánamo, Méndez is hopeful that the US will look to shake off the dark shadow that the camp has cast over US human rights policy. ‘I’m afraid that depending on who wins in November the Republican Party very explicitly wants to fill up Guántanamo again’, he said. ‘My sense is that whoever is the next President, together with Congress, will also understand that Guantánamo is just a stain on the reputation of the United States and such a lost opportunity for good relations with many other states for cooperation in the fight against terrorism even. Better heads will prevail and they will realise it’s not worth the expense or the loss of moral high ground that the United States has experienced because of Guantánamo.’

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IBAHRI at the 33rd Session of the Human Rights Council

At the 33rd Session of the Human Rights Council, on 13–20 September, IBAHRI UN Liaison Representative Dr Hélène dos Santos made statements on the outcomes of the Universal Periodic Review (UPR) of Hungary and Swaziland.

While commending Hungary’s engagement in the process, IBAHRI called on the government to take further measures regarding the independence of the judiciary, freedom of expression and the length of pre-trial detention. It further welcomed Swaziland’s acceptance of certain recommendations, but urged its government to engage in judicial reform and ensure lawyers are not subject to prosecution, sanction or threats in accordance with their professional duties.

The work constitutes part of IBAHRI UN’s programme which aims to strengthen the role of lawyers and legal professionals in the Universal Periodic Review process.

Sexual Orientation and Gender Identity

At the 33rd Session, IBAHRI also made a statement on the impact the UPR has had on advancing the human rights of LGBTI persons. In reference to its upcoming report Sexual Orientation, Gender Identity and Expression, and Sex Characteristics at the UPR, due to be published in November, the IBAHRI highlighted the successes of the UPR in relation to SOGIESC issues, as well as key concerns such as the scarce number of recommendations addressing the torture and death penalty of LGBTI persons. It further noted five key measures that should be taken to improve the quality and impact SOGIESC recommendations.

To read the statements in full visit tinyurl.com/ IBA33rdSessionUNHRC.

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Bar Issues Commission publishes new Benchmarking Bar Associations book

In 2009 the IBA Bar Issues Commission together with the Open Society Initiative for Southern Africa published a book entitled Benchmarking Bar Associations: A Guide for Bar Associations and Law Societies in Developing Countries written by Nusrat Chagtai, now a legal consultant to the Horizon Institute. This book created a step-by- step practical advice, benchmark manual to assist developing bar associations and is also an important tool to those working on human rights and law particularly in Africa. It laid out clear guidelines on such matters as bar independence, establishment, ethics, education and financial responsibility to help such developing bar associations.

Such was the success of this book, the IBA Bar Issues Commission has now published a second edition – Benchmarking Bar Associations. This new edition, also authored by Nusrat Chagtai, includes contributions from a wide range of sources including an introduction by IBA Executive Director Mark Ellis and a foreword by Mónica Pinto, UN Special Rapporteur with the book contents being overseen by Norville Connolly and Phillip Tahmindjis.

The new book has a much broader reach in that the areas of guidance have been significantly expanded and updated. New areas covered include membership services, regulation, representation, ethics, disciplinary and complaints procedures, rule of law, human rights and access to justice, pro bono work and international work and relations. While the book is of particular help to new bar association’s in developing countries, it will also be a useful tool to bar associations already in action that wish to benchmark their functions and scope against wider international practice.

Download a free copy at tinyurl.com/BenchmarkingBar.

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Guatemala: IBAHRI calls for investigation into raid of human rights defender’s home

On 16 August, over a dozen armed men ransacked the home of Ramón Cadena, the Central America Regional Director of the International Commission of Jurists (ICJ), forcing his family and security guard to wait outside while they raided the property. The IBAHRI has called on Guatemalan authorities to carry out a full and transparent investigation into the raid.

The targeted attack is the latest in an escalation of incidents involving the intimidation and harassment of human rights defenders in Guatemala this year. Cadena, who was not home at the time, has been involved in several high-profile cases including the trial of Former Guatemalan President, Efraín Ríos Montt, who is accused of war crimes, as well as cases representing Guatemalan communities against multi-national mining companies.

IBAHRI Co-Chair Baroness Helena Kennedy commented: ‘Both the independence and work of lawyers such as Ramón Cadena is paramount to the protection of citizens’ rights in Guatemala. The IBAHRI urges the Guatemalan government to use its full capacity to protect human rights lawyers and activists who face increasing threats.’