A Proposal to Compensate the Acquitted and Promote Reconciliation in the Balkans

by Alex Fielding, @alexpfielding on twitter

In light of the ongoing Seselj drama following the disqualification of Judge Harhoff for his pro-conviction bias (see my earlier post here and recent developments here) and the controversial acquittals of Momcilo Perisic, Ante Gotovina and Mladen Markac by the ICTY Appeals Chamber, and those of Jovica Stanisic and Franko Simatovic at trial, I keep coming back to the question of compensation for acquitted persons for the years spent in detention. While this may not, on its face, be a popular proposition for human rights activists and a general public whose primary concern is ‘ending impunity’, consider the following figures.

Momcilo Perisic, Photo: ICTY

According to my calculations, Momcilo Perisic, former Chief of the General Staff of the Yugoslav Army, spent approximately 4 years, 5 months and 10 days in detention prior to his acquittal on appeal on 28 February 2013 (note that these figures are NOT including the periods of provisional release from the ICTY’s detention facility in The Hague, which in Perisic’s case amounted to an additional 3.5 years).

Ante Gotovina, former Colonel General of the Croatian Army and Commander of ‘Operation Storm’, spent approximately 6 years, 11 months and 12 days in detention prior to his acquittal on appeal on 16 November 2012.  His co-accused Mladen Markac, former Operational Commander of the Croatian Special Police, spent 5 years, 7 months and 12 days in detention prior to his acquittal on appeal.

Ante Gotovina & Mladen Markac, Photo: Guardian

Ante Gotovina & Mladen Markac, Photo: Guardian

Including time spent on provisional release (I couldn’t find the relevant detention figures that do NOT include provisional release), it took 10 years from the time Jovica Stanisic, former Chief of the Serbian State Security Service, was sent to the ICTY to his acquittal at trial on 30 May 2013.  His co-accused Franko Simatovic, member of the Serbian State Security Service, waited 9 years, 11 months and 19 days for his acquittal at trial. Both men have been released pending the Prosecution’s appeal. They have also submitted arguments on appeal to the effect that the trial judgment was tainted by the bias of one of the sitting judges on the case, Judge Harhoff, but more on this later.

Vojislav Seselj, former President of the Serbian Radical Party, has already spent 10 years, 8 months and 25 days in detention (although 4 years and 9 months were a result of his three convictions for contempt of court) as he awaits a trial judgment that may be fatally flawed. Closing arguments wrapped up in March 2012 and the judgment had been scheduled for delivery on 30 October 2013 but then Judge Harhoff was disqualified for bias on 28 August 2013. Since there was no reserve judge in this case, the acting President of the ICTY Judge Agius controversially appointed Judge Niang to replace Judge Harhoff on 31 October 2013, even though he was not present during the entirety of the trial itself.

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On the Eve of the AU Summit: How the ICC is Being Defended

[This appeared originally on Justice in Conflict on 11 October, 2013.]

As African leaders publicly question their support for the International Criminal Court, a wide range of ICC supporters have rallied to its defense. Here, along with my co-author, Chris Tenove, we use a framework put forward in our recent paper in the International Journal of Transitional Justice to examine the allies and the forms of authority that the Court can turn to. (Chris is a doctoral candidate in Political Science at the University of British Columbia and a semi-regular JiC blogger.)

Representatives of African Union governments recently gathered to hold an “emergency summit” in Addis Ababa to discuss the relationship between AU members and the International Criminal Court. The summit was a critical test of the ICC’s authority. Several commentators have already considered the meeting’s significance, potential outcomes and implications (and offered their own suggestions). Here, we would like to discuss what the summit tells us generally about what international criminal justice is and how it works. In particular, we would point to claims about the ICC’s authority made by those who rally to its defense.

In a recently published paper, we propose a framework explaining which actors are involved in international criminal justice (ICJ), what kinds of fundamental rules and practices motivate them and what forms of authority they wield. Continue reading

The Creation of an International Criminal Tribunal for the Democratic Republic of the Congo

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(La version en langue française de la présente note est ci-après)

(Note: the translated portions of the original French letter below are not an official translation)

The summer of 2013 witnessed the launch of a petition, initiated by “52 prominent women” including the Congolese lawyer Ms. Hamuly Rély, calling for the creation of an International Criminal Tribunal for the Democratic Republic of the Congo (DRC).  The petition, which is still open for signature, was addressed to the French President François Hollande, the American President Barack Obama, the Secretary General of the UN Ban Ki Moon, former UN High Commissioner for Human Rights Mary Robinson, Chaiperson of the African Union Commission Nkosazana Dlamini-Zuma, Secretary General of the Organisation for Francophonie Abdou Diouf, President of the European Union Herman Van Rompuy, and the Presidency of the UN Security Council.

Before giving some personal thoughts (III) and addressing the potential judicial consequences of the establishment of such a Tribunal (II), this note focus on the content of the petition (I).

I. The Content of the Petition

1. Regarding the arguments and motivations:  Continue reading

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

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?

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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Uganda Announces Transitional Justice Policy

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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