Monthly Archives: August 2013

Judge Harhoff Disqualified for Bias from Seselj Trial Chamber

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by Alex Fielding, @alexpfielding on twitter

Marko Milanovic over at EJIL Talk! has posted an excellent analysis of the decision by a specially-convened ICTY Chamber (a 2-1 decision with Judge Liu dissenting) to disqualify Judge Harhoff for bias in the Vojislav Seselj case.  The decision is available here and for context, here is our earlier post on the letter that led to Judge Harhoff’s disqualification.  So what happens now?

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Photo Credit: ICTY

1. Seselj Retrial?

As Marko notes, the Seselj Trial Chamber had no reserve judge, and therefore a re-trial seems like the only option. Seselj has already spent 10 years in detention and there are serious fair trial concerns if he were to start over under the ICTY branch of the Mechanism for International Criminal Tribunals (which has a renewable four year mandate that started in 2012). How long must a trial last before it becomes a violation of the fundamental right to a fair trial within a reasonable time? The UN will surely not be happy with the prospect of funding and extending the ICTY’s mandate solely because of a Seselj retrial.  Seselj could even file a motion for compensation based on his extensive period of detention and the trial’s collapse.

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Can International Law Save Syria?

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Beyond The Hague is delighted to welcome Sophie Rigney for this timely piece on the relevance of international law to the Syrian situation.  This post is cross-posted from New Matilda, where it was first published on 28 August.

International law’s capacity to remedy the crisis in Syria is fraught. How will investigators collect evidence under sniper fire? What about Russia’s veto – and US intervention?

The alleged use of chemical weapons in Syria has galvanised calls for action to stop further mass atrocities, and to ensure those responsible are held to account. While the conflict in Syria has progressed for over two years and claimed between 80,000 and 100,000 lives, this chemical weapons attack has been widely perceived as having crossed a new line of unacceptability in the war. It has serious implications for the Syrian conflict.

Photo credit: NBC

Photo credit: NBC

There are two separate, but linked, issues of international law that arise from this recent attack.

The first is the question of external intervention through use of force (either by a country like the United States, a coalition of countries, or a regional cooperation institution like NATO).

In particular, what prerequisites would an external party or parties need to satisfy in order to legally use force in Syria? Military intervention is, in principle, contrary to Article 2(4) of the United Nations Charter. Recent comments by US President Barack Obama demonstrate that international law is very much to be considered as part of this decision-making process (or at least, that having a legal rationale for the use of force is seen to be preferable).

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African Experiences of Youth in Political Violence – Reflections on Zimbabwe

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by Paul Bradfield

History tells us that politically motivated violence occurs in every society at some point during its existence. Be it in time of independence or rebellion, young people invariably play a role in perpetrating acts of violence. Indeed, in weak and emerging societies, political leaders sometimes play a subversive role in manipulating and mobilising young people to violently realise and further their own political objectives.

Mobilising youth to commit political violence is not an inherently African problem, but is common in many societies around the world. With the recent elections in Zimbabwe, this post takes a deeper look at the mobilisation of African youth in political violence.

no raila

ODM supporters protest following the 2007 Kenyan elections. (Photo: nipate.com)

Young men and women get involved in violence for diverse and context-specific reasons. The prevailing theme in the commentary on youth and violence is that exclusion and lack of opportunities faced by young people leads to disillusionment and, in some cases, their participation in violence. Unemployment, insufficient educational opportunities, poor governance and social marginalisation can lead to the deep disaffection of youth in society, increasing the likelihood of them resorting to anti-social activity and engagement in violence.

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What I say may not be true, but it’s always for peace.

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BTH_22-8-13

During a recent conversation with one of Ituri’s many local leaders, he said something that I keep thinking about. He was telling me about his role in the community. In his words, he was a man of the peace, working always towards la pacification. Here is a rough translation of his words:

I’m a man of peace, always working for the pacification of Ituri, even during the war! People know this about me, so they come to me with questions and for information. And I tell them things. Sometimes they’re true and sometimes they’re not true. But they’re always for peace!

I’ve been thinking a lot about this man (full disclosure: he’s not the guy in the photo, which I took…but I think this photo kind of speaks to the issue). He clearly was on the side of peace. Even during the war he would leave the capital, Bunia, to get messages of peace to the villages in his native territory (if what he told me was true of course…). On one trip he was attacked with a machete (that’s true–he showed me the scar). So his response alarmed me. He said it with a large grin, almost as further proof that he really was a man of the peace: willing to lie in the name of peace!

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Is Ituri ready for truth and reconciliation?

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by Peter Dixon and Maria Elena Vignoli

Are Iturians ready to speak about the past? Photo credit: Peter Dixon

Are Iturians ready to speak about the past?
Photo credit: Peter Dixon

From 1999 to 2007, the Ituri district of the Democratic Republic of Congo’s northeastern Province Orientale was the scene of a deadly war that killed 60,000 and displaced over 500,000 people. In 2003, Ituri was home to at least six armed groups, with somewhere between 20,000 and 25,000 militia members. While the history is far more complex, the war was so violent in part because it pitched two of Ituri’s ethnic groups (Hema and Lendu) against each other. There’s plenty of background reading available. Dan Fahey’s 2013 Usalama Project Report is a good start.

As three out of four of the ICC’s Ituri-based trials approach their conclusion, the question looms, can Ituri be declared ‘post-conflict’? On the one hand, the November 2012 attacks in Bunia (organized and orchestrated at least in-part by the military and police), the presence of Justin Banaloki (aka “Cobra Matata”) in Walendu Bindi and Paul Sadala (aka “Morgan”) in Mambasa, and persisting land-related tensions are clear indicators that the risk of violence is still an ever-present reality for Iturians. On the other hand, reports are suggesting that a sustainable, if fragile, peace may have already emerged (also here). One thing is clear:

“There is an urgent need for a comprehensive peace process in Ituri to bridge the socio-economic and ideological gap between ethnic communities.” — Dan Fahey, Usalama Project, 2013

For the past several months, we have been interviewing leaders, stakeholders and the general population across three of Ituri’s five territories (Irumu, Djugu and Mahagi) on the issue. In total, we’ve held over 50 discussion groups and one-on-one interviews with over 170 customary leaders, civil society leaders, representatives (e.g. farmers’ representatives, youth representatives), authorities and victims’ groups. We also carried out a random survey of over 800 Iturians in Irumu and Djugu. Together with the Netherlands-based IKV Pax Christi, our goal is twofold: to better understand whether Iturians are ready to publicly speak about the acts and events of war, and if so, to identify what shape(s) this process could take. We’re still sifting through the data. In the meantime, here is some background context and some initial thoughts.

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Journée de la justice pénale internationale : la quatrième tentative du 17 juillet 2013.

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« La journée de la justice pénale internationale » est, avec « la journée pour la justice sociale », l’une de ces occasions annuelles et universelles qui permettent de communiquer sur un sujet d’intérêt commun. Ces deux journées partagent également, même si leur intitulé ne le précise pas, une vocation internationale (il manque en effet l’adjectif qualificatif « internationale » accolé au substantif « journée »). Bien que sa vocation initiale soit la promotion par diverses formes de communication de la justice pénale internationale, cette journée est aussi l’occasion de dresser un bilan et d’évoquer l’avenir.

C’est d’ailleurs à l’occasion d’un exercice de bilan que la création de cette journée a été décidée. En effet, l’Assemblée des États parties à la Cour pénale internationale, réunie pour la première conférence de révision du Statut de Rome,  a décidé « de célébrer dorénavant le 17 juillet, jour de l’adoption du Statut de Rome en 1998, comme la Journée de la justice pénale internationale » (ICC/RC/11/Decl.1). C’est ainsi que la première journée de la justice pénale internationale fut célébrée, le 17 juillet 2010. Mais il a fallut attendre l’année 2011 pour que l’institutionnalisation de cette journée prenne toute son ampleur. Sous l’impulsion du Greffe de la Cour pénale internationale, plusieurs activités avaient été prévues dans la ville du siège de la Cour, La Haye aux Pays-Bas, alors que le Tribunal pénal pour l’ex-Yougoslavie avaient été associé.

Cette année, quinze ans après l’adoption du Statut de Rome, la journée de la justice pénale internationale n’a visiblement pas la portée souhaitée. En effet, l’universalisme indispensable à ce type d’occasion, souffre sous deux aspects : géographique et matériel. Force est de constater que, géographiquement, la célébration de cette journée demeure limitée, en dehors des quelques États qui soutiennent la cour avec une vivacité permanente. En outre, la journée de la justice pénale internationale n’est pas célébrée par toutes les juridictions pénales internationales. Cette année, seule la Présidence de la Cour pénale internationale a communiqué une déclaration, singulièrement franche, de laquelle peuvent être retenus les éléments suivants :

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Lost in reconciliation? Poland, Ukraine and the Volhynia massacres

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Photo: Roger Gorączniak, via Wikimedia Commons

The crime of genocide was recently at the heart of one of the Polish parliament’s most heated and publicized debates of the past months. The crime was discussed in relation to the Volhynia massacres – one of those episodes in Eastern Europe’s World War II history which until now have not been ultimately reckoned with and continue to stir unwelcome animosities.

Prior to WW II, ethnic tensions in Volhynia worsened gradually in the thirties. This was largely due to Poland’s departure from the toleration policy it had initially adopted towards  the Ukrainian majority living in eastern borderlands of the country. The rise of the Organization of Ukrainian Nationalists triggered further repressive measures inflicted on the Ukrainians by the Polish government. These tensions eventually led to horrifying events. It is estimated that between 1943 and 1945 up to 100 thousand Poles were killed by units of the Organization of Ukrainian Nationalists−Bandera fraction (OUN-B) and its military wing, the Ukrainian Insurgent Army (UPA) (OUN-UPA). The so called “butchery” took place mainly in Volhynia and Eastern Galicia between February 1943 and February 1944 and reached its peak in mid-July 1943. The supposed objective was to clean the Volhynia of ethnic Poles and thereby lay groundwork for an independent state of Ukraine. Although Poles were probably the main target of this OUN-UPA campaign they were not the only one. Many of those belonging to Jewish, Czech, Armenian and other ethnic groups which inhabited Vohlynia and Eastern Galicia were killed. Among the victims were also Ukrainians, either politically opposed to OUN-UPA or simply those whom the organization considered as too lenient towards the Polish occupant. In response to the attacks Poles soon organized themselves in self-defense groups and killed Ukrainians in acts of retaliation. It is estimated that 10 to 30 thousand Ukrainians lost their lives in the 1943 – 1947 clashes that continued in Volhynia and Western Galicia. To complete this brief summary of events, straight after the war, the newly formed communist government of Poland forcibly re-settled thousands (estimated at over 140 000) of Ukrainians from the south east of the country to the former German territories ceded to Poland at the Potsdam Peace Conference of 1945. The official aim of this Wisła operation was to remove any possible OUN-UPA support.

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Judge Harhoff, Specific Direction and the Perisic Acquittal

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by Alex Fielding, @alexpfielding on twitter

[Updated on August 12]

Much has been stated, debated, alleged and insinuated about that letter by Judge Harhoff to 56 of his friends and associates about the “tenacious pressure” applied by Judge Meron on his fellow judges for the acquittals in the Ante Gotovina et al and Momcilo Perisic appeals and the alleged political influence of the US and Israeli governments in those acquittals.

Photo courtesy of ICTY website

Photo courtesy of ICTY website

The impropriety of the letter and need for a binding code of conduct for judges and prosecutors (to complement the existing code for Defence Counsel) has been discussed over at the International Criminal Law Bureau blog and Opinio Juris.  A blog post at Balkan Insight also provides a legal analysis of the acquittals in question to argue that it is not so much the law that has changed, but the fact patterns in the recent cases. The New York Times has also reported that Judge Harhoff is not alone in his criticism of Judge Meron and there is a movement afoot amongst ICTY judges to vote in another candidate for ICTY President this fall.

Disclosing confidential information about the deliberations of the Appeals Chamber (of which Judge Harhoff did not take part) and proposing unsubstantiated conspiracy theories is improper, as these blog posts have discussed in detail. The focus of this post, however, is Judge Harhoff’s comments on the Perisic Appeal and his  analysis of aiding and abetting liability (which, incidentally, was decided by a 4-1 majority, not 3-2 as stated in the letter).

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Uganda Announces Transitional Justice Policy

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On 21 May 2013, the Republic of Uganda became the first state in Africa to publish a comprehensive Draft Transitional Justice Policy. Six years after the Juba Peace negotiations between the Lord’s Resistance Army (‘LRA’) and the Government of Uganda (‘GoU’) ended without being formally signed by both parties, the GoU has committed itself to implementing an holistic Transitional Justice policy, designed to address issues of accountability, reparation and reconciliation in post-conflict Uganda. While still a ‘draft’ policy, it marks an historic step by the GoU in creating a framework designed to implement the provisions of the ‘Agreement on Accountability and Reconciliation’, Item no. 3 of the Juba Peace Agreement.

At the beginning of the Juba negotiations, Joseph Kony and his deputy Vincent Otti sit inside a tent at Ri-Kwamba in Southern Sudan. Photo credit: CSMonitor.

At the beginning of the Juba negotiations, Joseph Kony and his deputy Vincent Otti sit inside a tent at Ri-Kwamba in Southern Sudan. (Photo credit: CSMonitor)

In summary, the draft Ugandan policy provides for the following central interventions:

  1. Regarding formal justice processes, the GoU shall ensure witnesses are protected and victims can participate in proceedings;
  2. The GoU commits to recognizing traditional justice mechanisms as a tool for conflict resolution;
  3. The GoU shall establish and resource a national truth-telling process;
  4. The GoU shall establish and implement a reparations programme for victims affected by conflict; and
  5. There shall be no blanket amnesty, with those who have already received amnesty encouraged to participate in truth-telling and traditional justice processes.

On the five commitments listed above, some brief reflections:

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Bienvenue / Welcome to Beyond The Hague !

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(le français suit ci-dessous)

Welcome to BeyondTheHague.com (BTH), our blog about international justice in its many forms.  We all met in The Hague working with the different international institutions and tribunals. Currently, we find ourselves involved or interested in these issues but in very different surroundings in Warsaw, Bunia, Stockholm, Malawi, Nice and Geneva. The idea behind this blog is to provide a space where we can share our thoughts and experiences around international justice in both English and French.

We’re starting things off with posts about Uganda’s new transitional justice policy, that letter from Judge Harhoff at the ICTY, and the controversy over the “massacre” or “genocide” at Volhynia in Poland during WWII. We’d love to hear your comments !

Please help us spread the word by linking to BeyondTheHague.com, our Facebook page, or doing whatever the kids are doing these days on Twitter (@beyondthehague).  And if you want to share your own thoughts on international justice, we’ve set up a Contribute page for guest bloggers.

With our warm regards,

Alex, Manuel, Maria Elena, Marysia, Paul and Peter

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Bienvenue sur BeyondTheHague.com (BTH), notre blog sur la Justice internationale sous ses différentes formes. Nous nous sommes tous rencontrés à La Haye, en travaillant au sein de différentes institutions et tribunales internationales. Actuellement, nous restons impliqués ou intéressés par ces mêmes questions, mais depuis des lieux très variés : Varsovie, Bunia, Stockholm, Malawi, Nice et Genève. L’idée derrière ce blog est d’offrir un espace où nous pouvons partager nos réflexions et expériences autour de la Justice internationale en anglais et français.

Nous commençons les choses avec un article portant sur la nouvelle politique de justice transitionnelle en Ouganda, la lettre du Juge Harhoff au TPIY, et le controverse autour du “massacre” ou “génocide” à Volhynia en Pologne pendant la deuxième guerre mondiale. Nous apprécierions lire vos commentaires !

Aidez-nous à passer le mot par un lien vers BeyondTheHague.com, notre page sur Facebook, ou faîtes ce que font les ado ces jours-ci sur Twitter (@beyondthehague).

Si vous souhaitez partager vos propres idées sur la Justice internationale, nous avons mis en place une page de contribution pour blogueurs invités.

Très cordialement,

Alex, Manuel, Maria Elena, Marysia, Paul et Peter