Tag: crimes against humanity

Selectivity in the ICTR

Last Tuesday, Rwanda’s high court sentenced Victoire Ingabire to eight years in prison for conspiring to harm the country through war and terror and minimizing the 1995 genocide. Some of the evidence used against her include questioning why no Hutu victims were mentioned in a genocide memorial.  While the case raised controversy in Rwanda because it called into question the independence of the domestic judiciary and the freedom of political movement under a president seen as increasingly authoritarian, the case also raises interesting questions for international law.

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More on Gotovina

Ante Gotovina

Last week I wrote about targeting and mentioned the Gotovina Case. This case has become interesting for those interested in international law and post-conflict justice because of the decision of the court (among other things) effectively states that a 4% error rate in targeting in a complex military operation was tantamount to a war crime.

As I said in the post, the decision prompted several laws of war scholars (many of whom were former JAGs) to have a roundtable at Emory University on the decision and subsequently write up an amicus brief  supported by 12 international law experts from the US, Canada and the UK which was submitted to the appeals chamber at the ICTY. This prompted a response from the prosecution which may be read here.

What I didn’t realize, however, was that the Court was deciding that day to reject the amicus. You can read their decision here.

I must admit that going through the Court’s decision does not inspire confidence. That the decision begins with a discussion about the word length is… like something I might write at the END of my comments on a student essay.

Next, in the brief “Discussion” of the merits of the arguments, the court briefly states that it is “not convinced that the applicants’ submissions would assist in determining the issues on appeal”, and invokes procedural rules for submitting evidence. It further states that the amicus brief is problematic because it does not identify the fact that one of the authors, Geoff Corn, was an expert witness for the defence. Given that this later point should have been pretty obvious and they are already lecturing the authors for going over the word limit, you wonder how this should have been done? Or why this is a matter of substance in deciding the merits of the worth of the amicus?

Either way, the Court uses these points to reject the amicus in a brief dismissal that I find wanting. Disappointingly, the amicus has been dismissed on rather procedural and technical grounds. And this is important: if international courts are going to be making controversial decisions suggesting that a 4% error rate is tantamount to a war crime and if they reject advice on this matter because someone didn’t explicitly attach a CV to an amicus that violated the 10% +/- rule, I am concerned. And you have to wonder what kind of message this send to countries thinking about signing up to war crimes courts/trials?

Regarding my post from last week, Geoff Corn responded in the comments to direct readers to his SSRN paper on the matter. I would definitely recommend interested Duck readers to take a look.

Clearly, Gotovina remains a case that should be closely watched. The man himself remains a controversial figure. Being concerned with his trial is not to say he is not guilty of some crimes. However, it is clear that many experts in this area are concerned about logic employed by the ICTY on several important aspects of the case and the future implications of war crimes trials.

I look forward to more reaction from the amicus authors and other scholars on this matter.

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Crimes in and of Famine



If you find the argument that famine is man-made to be credible, then famine is not just an inevitable outcome of the structural conditions of “failed states” but rather it is purposeful, systematic, and systemic human rights abuse and therefore criminal.

Those who make the argument that the current famine in East Africa is man-made place more blame on political problems of restricted access, entitlements and aid management than the environmental factors of drought, overpopulation, and food scarcity. That Somalia has been hit harder by famine than neighboring Ethiopia and Kenya underscores this point. If famine is, at least predominantly, man-made than by extension there are individuals or groups responsible for causing the famine or exacerbating its effects of death and displacement. As Charles Kenny argues for Foreign Policy, “In order to ensure widespread death by starvation, a governing authority must make a conscious decision: it must actively exercise the power to take food from producers who need it or deny food assistance to victims.”

The debate is not new. For example, in Famine Crimes (1997) Alex de Waal addresses the “political roots of famine” in Africa and the subsequent failings of the “humanitarian international” as an “obstacle rather than aid to conquering famine.” (pxv) More specifically on the question of crimes and responsibility, he argues:

“For war crimes, the challenge is to deter those who cause them. The Geneva Conventions contain strong provisions prohibiting the use of starvation as a method of warfare. Criminalizing the infliction of famine requires a further step, namely enforcing the prohibitions by prosecuting those guilty of the crimes. This it to put famine into the category of offences requiring justice, and in particular war crimes.” (p6)

Certainly civilians living amidst violence and in poorly functioning states are likely to become food insecure and displaced. But is the present famine, the worst in sixty years, an international crime in and of itself? Both Sarah Pierce and Jens David Ohlin explain the factual case that, technically, the famine is neither a war crime nor a crime against humanity but make the normative argument that it should be. Specifically starvation is a war crime but only in international armed conflicts. And for the famine to constitute a crime against humanity there must be intent and knowledge of a plan to cause “great suffering, or serious injury to body or to mental and physical health” as part of a systemic and systematic attack on civilians. This is where the evidence is mixed and raises questions about determining intent and assigning responsibility to organizations and individuals. Those who breed corruption and war often to blame.

In Somalia, civilians are prevented from fleeing to areas, inside or outside its borders, to access food aid, medical assistance, and protection and aid agencies are deliberately obstructed from providing such assistance inside much of Somalia. Human Rights Watch just released a report, “You Don’t Know Who to Blame:” War Crimes in Somalia, accusing all warring factions in Somalia, particularly al-Shabaab but also government forces, of committing human rights violations and preventing access to aid. But most argue that the Islamic insurgency group, al-Shabaab, is primarily to blame. The report’s author told BBC that

“al-Shabaab carries out unrelenting daily repression and brutality in areas under its control, taxing the population for access to water, forcefully recruiting men so they cannot grow crops and restricting access to aid agencies…al-Shabaab must carry he burden of that responsibility for the way in which the fighting has led to human rights violations which have contributed to famine.”

Andrew Jillions, blogging at Justice in Conflict, also directly takes on the question of al-Shabaab’s responsibility or complicity in engineering the famine. And in Kenya too there is finger-pointing at political actors. One Kenyan activist claims “this is a governance drought. It is a situation caused by the government’s failure to plan…” and that big profits can be made from famine.

Whether those perpetrating violence and corruption have intentionally caused vs. exacerbated the famine in the commission of other abuses may matter more for identifying this as a crime and assigning responsibility, but on the ground the end result of either scenario is still increasing death and displacement with little allocation of responsibility.

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Impunity Gap: Sri Lanka


(see first post in this series: Mind the Impunity Gaps)

There is increasing pressure for justice in Sri Lanka for crimes committed in the long civil war between the Government and secessionist Tamil Tigers (LTTE) and that ended in May 2009. While the Sri Lankan government has publicly pledged to ensure justice, there are legitimate concerns its current approach will not be genuine and sufficiently punitive, and will place the burden of guilt for war crimes and crimes against humanity on the LTTE while institutionalizing impunity for crimes committed by Government forces.

“Sri Lanka’s Killing Fields”
The airing of a documentary called “Sri Lanka’s Killing Fields” on UK’s Channel 4 sparked new interest and pressure. It has now been shown to wide acclaim at the UN in New York and Geneva and recently by human rights groups in Washington, DC. The footage is indeed shocking. It documents extrajudicial killings, torture, and sexual violence allegedly committed by Government forces against Tamil civilians. The documentary is available on YouTube.

The Sri Lankan government has reacted angrily to the footage and accompanying accusations; it also claims that portions of the film have been doctored or are misleading. A BBC Hardtalk interview with a Sri Lankan MP and adviser to the President is revealing with regard to the determination of the Government’s denial and rejection of international pressure to investigate its own crimes.

UN Probe Alleges Crimes Committed by “Both Sides”

A United Nations Panel of Experts released a report in April, 2011 stipulates there are credible allegations of war crimes and crimes against humanity committed by both sides in the final stages of the war (Sept 2009-May 2009). Crimes committed by the LTTE throughout the civil war are well known, including killings, forced displacement, use of child soldiers, etc. But crimes committed by Government forces have been less exposed.

The Panel’s notable allegations are as follows:

The Government says it pursued a “humanitarian rescue operation” with a policy of “zero civilian casualties.” In stark contrast, the Panel found credible allegations, which if proven, indicate that a wide range of serious violations of international humanitarian law and international human rights law was committed both by the Government of Sri Lanka and the LTTE, some of which would amount to war crimes and crimes against humanity….330,000 civilians were trapped into an ever decreasing area, fleeing the shelling but kept hostage by the LTTE….Most civilians in the final phases of the war were caused by Government shelling…..(p ii)

The Panel was also highly critical of the Government’s commitment to accountability thus far:

The Government has stated that it is seeking to balance reconciliation and accountability, with an emphasis on restorative justice. The assertion of a choice between restorative and retributive presents a false dichotomy….The Government’s two-pronged notion of accountability, as explained to the Panel, focusing on the responsibility of past Governments and of the LTTE, does not envisage a serious examination of the Government’s decisions and conduct in prosecuting the final stages of the war or the aftermath, nor of the violations of law that may have occurred as a result. The Panel has concluded that the Government’s notion of accountability is not in accordance with international standards. (p iv)

The Government’s “Lessons Learnt and Reconciliation Commission” was described by the Panel as “deeply flawed.” (p v).

In response, the Sri Lankan Government vociferously rejects the prospect of international judicial intervention, argues the “report is based on patently biased material which is presented without verification,” and claims that reconciliation should come above all else. A commitment to reconciliation above prosecutions is a familiar refrain for governments wishing to disguise impunity for their own crimes (e.g. Indonesia, Rwanda, etc.)

The impartiality of investigations does not always translate into a balanced prosecutorial strategy. This will be a considerable challenge for international or national trials for Sri Lankan atrocities. International courts struggle to prosecute the winners of conflict, particularly because of a reluctance to create a moral equivalency of crimes on both sides, and if perpetrators are in positions of political power and prosecuting them could risk instability or a loss of cooperation. Impartial prosecutions in national trials are likely to be impossible in this case, owing in no small part to what the Panel calls the Sri Lankan government’s discourse of “triumphalism” over Tamils and “exclusionary policies” that prevent domestic victims’ groups from successfully exerting pressure on the government.

Prospects for Closing the Impunity Gap
Pressure from the UK and advocacy from human rights groups seems to be having no effect so far. Most of the pressure is on the UN Secretary-General because the Panel was commissioned by his office and with the purpose of advising him on further investigations and accountability. Victims and human rights groups are pressing him to take up the Panel’s clear recommendation to establish and official international commission of inquiry. Such a formal inquiry, as past experience has shown, would pressure the Sri Lankan government to genuinely investigate and hold war criminals accountable, and absent such a response would generate support for an international tribunal. If not an ad hoc or hybrid tribunal, a referral to the International Criminal Court would have to come from the Security Council as Sri Lanka is not a State Party to the Rome Statute. But China’s support for Sri Lanka and its autonomy in accountability makes this unlikely to happen. There is great risk that the Sri Lanka case will fall through the cracks.

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UNSC Resolution 1970: Wait, did the UN just kinda do what it was supposed to?

United Nations Security Council Resolution 1970 is a pretty amazing document. Over the last few days I’ve found myself trying to decide if this a rare example of the UN Security Council doing what it was originally designed to do – or an example of an international organization working because there is a relatively powerless state with no allies involved. I suspect it’s probably both.

Still, I’ve been following The Multilateralist blog over at Foreign Policy and I think David Bosco has it just about right:

Last night, the UN Security Council passed unanimously a resolution imposing an asset freeze and travel ban on Libya’s ruling elite, and also referring the situation to the International Criminal Court. None of these measures is unprecedented: the Council has used asset freezes and targeted sanctions with increasing frequency in recent years, and it referred the case of Sudan to the ICC in 2005. But the scope, speed and unanimity of the resolution are remarkable.

I think this last line is a very significant point – even if it’s about a relatively straightforward situation in Libya, 1970 is a comprehensive resolution that was passed quickly and unanimously. Even more remarkably, China, Russia and the United States voted for it (no abstentions) even if it has the power to potentially put Gaddafi on trial at the ICC – an institution they’re not all entirely chummy with.

Clearly this will not solve all of the problems in Libya, but I also don’t believe it is merely an impotent angry-worded letter that critics often speak of. And there are a few things in here that I think are interesting and worth highlighting…


First, the ICC referral. On the surface this isn’t unique, but (as I mentioned above) it is still rather interesting that ALL states on the UNSC agreed to it. The operative clause goes that the UNSC….

4. Decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;

But the reasons why China, Russia, the US, India, (etc) probably found this acceptable can be found in the 6th clause of the resolution:

6. Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State;

In other words, if a citizen of the US, Russia, China, India (etc) is somehow involved in crimes against humanity, the ICC will not have jurisdiction over them (or any non-ICC national.) It will be interesting to see if this results in anyone getting away with some nasty stuff.

Additionally, Bosco makes an interesting observation on this point:

But it is notable that the resolution references (although in a non-operative paragraph [ed: this means in the preamble, before ‘Action under Chapter VII]) Article 16 of the Rome Statute, which gives the Council the power to suspend ICC investigations if it believes doing so would advance peace and security. It’s not immediately obvious to me why a resolution referring a situation to the court would emphasize this provision. It’s possible that China, the United States and others particularly skeptical of an untethered ICC simply wanted to emphasize the Council’s power to reel in the court. But it could also be a signal that the Council would consider stopping the ICC process in exchange for the peaceful transfer of power.

This is interesting. There has been some criticism of the ICC that its activities in Africa are actually hindering rather than helping resolve conflicts. So would the threat of a prosecution actually give any incentive for Gaddafi to surrender? And would ICC advocates be satisfied if such a deal was made – transfer power peacefully and we’ll leave you alone? I have my doubts.

Then again, if I was Gaddafi, I’d probably rather have my fate decided in sombre environment of The Hague than at the armed and rather angry mob that is headed his way. (If nothing else, surely this would give him another platform for crazy speeches and more elaborate hats?)

Second, there are references to “The Responsibility to Protect” in the preamble of the resolution, and in the comments of the representatives of those who voted on it, but not in the ‘meat’ of the resolution. This is not a big surprise, given how rather toothless the concept has become since 2005’s World Summit Outcome Document (see articles 138 and 139). However, this kind of does seem the ideal time, if ever there was one, to invoke the principle.

Finally, the voting and accompanying statements. According to the press release, when speaking on the Resolution, the Chinese representative said the following:

LI BAODONG ( China) said that China was very much concerned about the situation in Libya. The greatest urgency was to cease the violence, to end the bloodshed and civilian casualties, and to resolve the crisis through peaceful means, such as dialogue. The safety and interest of the foreign nationals in Libya must be assured. Taking into account the special circumstances in Libya, the Chinese delegation had voted in favour of the resolution.

Three points here: First, it’s clear that China agreed to the resolution because of “special circumstances” rather than suggesting it was something they would normally support.

Second, it’s also clear that he is against an armed humanitarian intervention and is not alone on the Council. The Russian representative, while supporting the 1970, spoke out against “counterproductive interventions” that other states might be tempted to engage in.

Third, when Russia and China are voting for sanctions against you AND supporting an ICC investigation in your country, it goes to show you just how freaking isolated you are. I suppose at this point it might be the result of neither country having substantial material interests in Libya and realizing they had nothing to lose (and potentially something to gain in terms of UN ‘street cred’) if they voted for it. (Certainly a sentiment, along with hypocrisy, expressed in this cartoon in the Economist.)

Ultimately, it’s a very interesting resolution and I’ve been using it in my teaching all week. Is it a rare example of the UN doing what it was designed to do in the first place? Even if not, I suspect that scholars will be interested in the reasons for the content of the resolution, the speed at which it was passed, and the effect it eventually has on the crisis – if any.

PS: Oh and I see that the UN has now thrown Libya off of the UN Human Rights Council. Way to act, guys! 

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Agathe Habyarimana, France, and the Rwandan “Genocidaires” fifteen years on


Early this year, an improvement in French-Rwandan relations led to the French government finally beginning to take note that many of the most serious war criminals in the 1994 Rwandan genocide were living in France without having been tried or punished for their crimes. The French government’s previous apathy towards these suspects was part of a long list o problems with accountability for the genocide in other states, internationally (in the International Criminal Tribunal for Rwanda), and within Rwandan courts.

The last couple of days, a particular (accused) participant in the genocide has been in the news – Agathe Habyarimana, spouse of former (assassinated) Rwandan President Juvenal Habyarimana. Agathe, one of the women discussed in Caron Gentry and my Mothers, Monsters, Whores book, is accused of complicity with and perpetration of the genocide (as well as, in certain circles, participation in her husband’s assassination). The French government flew her out of Rwanda in the summer of 1994, and has arrested her for genocide this week, nearly 16 years later.

There are all sorts of interesting questions surrounding the French government’s sudden cooperativeness in prosecuting Rwandan war criminals generally, and in this high-profile case particularly, concerning the nature of the conflict, ethnic relations, post-colonial relations, the nature of truth and reconciliation, and Rwanda’s future prospects for peace and even prosperity. But for the purposes of this post, I’ll focus on the narrow topic of gendered representations of Agathe ….

Caron Gentry and I have observed that women engaged in proscribed violence are often portrayed either as ‘mothers’, women who are fulfilling their biological destinies; as ‘monsters’, women who are pathologically damaged and are therefore drawn to violence; or as ‘whores’, women whose violence is inspired by sexual dependence and depravity. Each narrative carries with it the weight of gendered assumptions about what is appropriate female behavior. In these terms, a woman who commits proscribed violence, in her home or in global politics, has committed a double transgression: the crime and her disregard of a gender stereotype which denies her mental capacity to commit such a crime.

The portrayals of Agathe Habyarimana that focus on whether she is worthy of a widow’s pity, her emotional fragility and maternal nature, and exoticism have gendered elements. Those gendered elements play out in the ways Agathe’s (and other women’s) “innocence” and “guilt” are discussed, in understandings about gender roles in the genocide-era and post-genocide Rwandan society, and in the increasing representation of women in Rwandan civil society and government.

In fact, coverage of Agathe’s arrest goes side by side with coverage of Rwanda’s election of the first woman-majority parliament in history. Looking back at the genocide and looking around at the complexities of gender and political life in Rwanda today, it is obvious that women can at once be victims and perpetrators; and women can make advances in some areas while experiencing setbacks in others shows “the status of women” is a much more complicated and multidirectional construct than it appears in either the idealist or Orientalist accounts. The “status of women” in Rwanda cannot be explained either by referencing women’s increased participation in politics nor by ignoring it; instead, it is important to note that the story is not only women reconstructing Rwanda but also Rwanda reconstructing women/femininity. The reconstructed subject of the traditional woman needs to be deconstructed in order to understand, continue, and complete the project of the reconstruction of the Rwandan state. Dealing with Agathe’s contribution to the genocide in gendered ways is one piece of that puzzle.

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ICC Issues Arrest Warrant for Bashir, But Not For Genocide

When Foreign Policy’s Morning Brief hit my inbox today, the top story was the arrest warrant issued by the International Criminal Court for President Omar Bashir of the Sudan.

FP’s header gets the charges wrong, however – Bashir is charged with war crimes and crimes against humanity, but not with genocide. The distinction is legally and politically significant – crimes against humanity include a host of horrible acts, when widespread and/or carried out systematically against a civilian population.

Genocide, however, is a crime not against individual civilians but against certain groups and requires a finding that the perpetrator carried out a series of acts with the express intent to wipe out not particular people but the group itself. Note the exact language the prosecutor had to work with, borrowed from the 1948 Genocide Convention and spelled out in Article 6 of the Rome Statute:

“For the purpose of this Statute, ‘genocide’ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.”

This is a tall order, not only because the definition of what exactly constitutes a “group” is often ambiguous, but because even if the above acts have occurred, and even if they can be linked to the political leadership, those leaders are seldom careless enough to leave paper trails demonstrating the acts were carried out with intent to destroy the group as such.

This explains why there have been only a handful of convictions for genocide in the history of international war crimes tribunals.

In political terms, this is likely to be an unpopular decision – the colloquial use of the term “genocide” as a referent to Darfur, by diplomats and activists, has overshadowed the legal meaning of the term for several years, and many people view crimes against humanity as a lesser charge (though in my mind, systematic rape and slaughter is plenty bad even when there’s no intent to wipe out a whole group). But in legal and institutional terms, the absence of genocide from the charges is a no-brainer: as a new institution, the ICC prosecutor has an interest in making a case he thinks he can win. Whether or not this is a good decision politically is about to be a huge subject of debate – see for example Kevin Jon Heller’s reactions – but let’s remember, the ICC is a legal, not a political institution. In theory.

UPDATE: Not long after I posted this (or perhaps even before I did), Foreign Policy had made a correction – the actual website now shows “crimes against humanity” as the charge.

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