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Human Rights Watch Report Assessing the Taylor Trial
Human Rights Watch recently released a report entitled “Even a ‘Big Man’ Must Face Justice”: Lessons from the Trial of Charles Taylor. A copy of that report is available here: HRW Report on Taylor Trial.
Below is the announcement from Human Rights Watch about the report:
As you know, on April 26, 2012, former Liberian President Charles Taylor became the first former head of state since the Nuremberg trials of Nazi leaders after World War II to face a verdict before an international or hybrid international-national court on charges of genocide, war crimes, or crimes against humanity. It was a landmark moment for war victims in Sierra Leone and international efforts to ensure perpetrators of the gravest crimes are held to account.
The report seeks to draw lessons from practice and impact of the Taylor trial, which was conducted by the United Nations-backed Special Court for Sierra Leone, to promote the best possible future trials of highest-level suspects for the most serious crimes, including at the ICC. Notably, the Taylor trial progressed against a backdrop of concern over the viability of trying such individuals following the 2002-2006 trial of former Serbian president Slobodan Milosevic before the International Criminal Tribunal for the former Yugoslavia.
The report examines the conduct of Taylor’s trial, including issues related to efficiency, fairness, witnesses, and sources. It also examines the court’s efforts to make its proceedings accessible to communities most affected by the crimes, and perceptions and initial impact of the trial in Sierra Leone and Liberia. The report is based on research in Sierra Leone, Liberia, The Hague, London, and New York from September 2011 to June 2012.
Our findings are that the trial was a largely well-run proceeding, benefitting from a high-quality defense, sound handling of witnesses, and dynamic outreach to communities affected by the crimes. At the same time, we identify areas in which practice should be improved for future trials of this nature to promote greater efficiency and impact.
The authors welcome any feedback you may be able to provide, and can be contacted directly at Human Rights Watch below:
Posted @ 2:01 PM | Experts Debate the Issues: The Charles Taylor Trial | Read Entry | 0 Trackbacks
Piracy Prosecutions in the Seychelles
By Cameron MacLeod
Since early 2010, the Seychelles has become the hub for prosecution of Somali pirates in the Indian Ocean. The Seychelles recently enacted a statute giving its courts universal jurisdiction to prosecute pirates brought to the Seychelles by other countries, and with financial support of the United Nations, the Seychelles has built a state of the art prison facility for pirate defendants and convicted pirates. The suspension of piracy prosecutions in Kenya means the Seychelles is now the primary regional player with the capacity and willingness to prosecute Somali pirates.
In the past few months, the Seychelles Supreme Court has completed six piracy cases, which are publicly available for the first time on the Grotian Moment website. While these piracy cases are not large in number, their impact on the law and prosecution of piracy is notable in two respects: First, they establish that universal jurisdiction for piracy is well recognized, and that the concept of hostis humanis creates a strong basis for exercising universal jurisdiction in piracy prosecutions, even in cases in which a third state initially apprehended the pirates. The Seychelles case law will constitute an important precedent if the international community eventually sets up a regional piracy court at the facilities of the International Criminal Tribunal for Rwanda, as proposed by the United Nations Secretariat.
Second, the Seychelles cases establish that pirate sentences must be appropriately severe. The international conventions relevant to piratical acts do not provide guidance on sentencing, and some domestic courts have given extremely light sentences to convicted Somali pirates. The decisions of the Seychelles courts clearly demonstrate the severity with which the crime of piracy should be viewed, even in cases where no victims were killed. In at least two cases, for attempting the crime of piracy, each pirate was sentenced to a period of more than twenty years. For completed acts of piracy, the maximum penalty under Seychelles law is up to thirty years of imprisonment and sizeable fines. The Supreme Court of the Seychelles telegraphs a plain message with these sentences: like those who commit war crimes and crimes against humanity, pirates are hostis humanis, and as such the offense against the international community warrants a significant sentence.
Below are brief summaries of each case, and the sentences handed out therein. These judgments were provided to Case Western Reserve University School of Law Professor Michael Scharf, who has been assisting the Seychelles in the prosecution of pirates.
Republic v. Mohamed Ahmed Dahir & Ten (10) Others, Judgment, Crim. Side No. 51 (2009) - "Topaz":
A surveillance aircraft observed a "whaler," a floating base of operations for pirates, towing two skiffs and radioed the location to the Topaz, a Seychelles Coast Guard war ship. When the Topaz arrived on the scene, it came under attack from the two skiffs, and subsequently subdued and apprehended both skiffs. The Topaz then pursued the whaler and apprehended three more men. This case is important for its analysis of the question of whether an act of piracy can also be prosecuted as an act of terrorism. The eleven accused were charged with five counts of committing terrorist acts, aiding or abetting terrorist acts, and conspiracy, as well as counts for piracy and aiding and abetting piracy. The government submitted that attacking the Topaz had a broader political goal than mere piracy, and that the incidental impacts on governmental function were sufficient to establish the attacks as acts of terrorism. The court rejected this argument, as it concluded that the attacks were both too attenuated and lacked the intent to impact governmental functions. The court similarly rejected the conspiracy claims, and focused instead on the piracy counts. The court found that the intent of the eight accused on the two skiffs was to commit piracy, and that their manifest intentions and actions constituted the complete crime, regardless of their ultimate lack of success. Furthermore, it found that the three men apprehended on the whaler were guilty of aiding and abetting in this endeavor. As such, the court found the eight men named in count three guilty of piracy, and the three named in count seven of aiding and abetting piracy.
Judgment - Topaz
Republic v. Abdi Ali et al., Judgment, Crim. Side No. 14 (2010) - "Intertuna II":
Eleven pirates attempted to seize the Intertuna II, a Spanish fishing vessel, on March 5, 2010. The pirates approached twice on skiffs and were turned away by security officers aboard the vessel. The pirates retreated to their "whaler" and were subsequently arrested by French naval authorities in conjunction with Spanish and Italian patrols. The case establishes accomplice liability under the laws of the Seychelles for piracy, as well as affirming the notion of criminal attempt in piracy. Each of the eleven accused were sentenced to six years’ imprisonment.
Judgment - Intertuna II
Sentence - Intertuna II
Republic v. Mohamed Aweys Sayid et al., Judgment, Crim. Side No. 19 (2010) - "Galate":
Over four days, the nine accused attacked three ships, seizing the Galate, and using it to launch attacks and seize an Iranian ship. The Topaz, a military patrol boat fired upon by the pirates, eventually arrested the nine accused after the Iranian vessel they seized caught fire and sank. Interestingly, while evidence showed that only two of the pirates fired upon the Topaz, all the pirates were convicted of the unlawful act under a theory of accomplice liability similar to Joint Criminal Enterprise in the domestic law of the Seychelles. Each of the pirates was sentenced to twenty-two years imprisonment.
Judgment - Galate
Sentence - Galate
Republic v. Mohamed Ahmed Ise & Four Others, Judgment, Crim. Side No. 75 (2010) - "Talenduic":
Over two days, the accused Somalis attacked two French ships in the Gulf, and failed. The accused were apprehended from their "whaler" by EU forces in the area of the attacks and brought to the Seychelles to stand trial. The conviction here, unlike the two above, was based solely on circumstantial evidence, as no direct evidence of the crime taking place was produced (para. 32). The court, however, found that the only reasonable inference to be drawn from the presence of the pirate vessel in the area was one of guilt -- even though no weapons, hooks, or other piratical equipment were found in the whaler -- and convicted all five accused.
Judgment - Talenduic
Republic v. Houssein Mohammed Osman & Ten Others, Judgment, Crim. Side No. 19 (2011) - "Draco":
The accused in this case approached the Draco at high speeds onboard a single skiff. Security officers onboard the Draco alleged that one of the accused had a bazooka pointed toward them, which prompted these officers to begin firing at the skiff. The accused turned back, and were later apprehended on board a whaler not far away. They had not manifested any overt act of piracy, nor were there any weapons or piratical tools found aboard their skiffs when arrested, similar to the Talenduic case. The government argued that merely having the intent was the completed act of piracy, but the court rejected this position. While it found insufficient evidence of an overt act of piracy, the court held the pirates had the manifest intent to commit piracy, and their preparatory actions constituted attempt under the Penal Code. They were convicted of attempted piracy and having the common intent to commit piracy. The accused were sentenced to ten years imprisonment.
Judgment - Draco
Sentence - Draco
Republic v. Abdukar Ahmed & Five Others, Judgment, Crim. Side No. 21 (2011) - "Gloria":
Seven men (the six accused and one other) attacked from skiffs and seized the Gloria on April 19, 2011, making for Somalia after seizing the ship. The captain of the Gloria had sent a distress call, and two Seychelles Coast Guard vessels responded. The pirates opened fire on the two vessels and threatened to kill the Gloria’s crew, and the Coast Guard returned fire from a safe position. One of the pirates was killed in the crossfire. The pirates were convicted of three counts of piracy, for attacking the Gloria, as well as acts of violence against the two Coast Guard vessels. It was the first case where there was a detailed analysis in the court’s opinion of the defenses offered by the defendants. The accused were sentenced to terms of twenty-four years on the first count, and eighteen years on counts two and three, all running concurrently. Interestingly, the Court ordered the pirate’s property to be auctioned and the proceeds given as compensation to the victims of the acts, blending civil reparation with criminal liability.
Judgment - Gloria
Sentence - Gloria
Posted @ 8:00 PM | Piracy Trials | Read Entry | 0 Trackbacks
The Law's Long Arm and the Mighty Pen: Justice for Ratko Mladic
A former war crimes prosecution attorney and PILPG advisory board member reflects on the arrest of Ratko Mladic, alleged mastermind of the Srebrenica genocide.
It is not often when one man is able to unite officials on both sides of the Atlantic – to work together – with common cause and devotion, for years. But this past week, an example of the U.S.-European transatlantic relationship emerged – along with a reminder of the just how long, the "long arm of the law" can stretch, when Ratko Mladic appeared in a courtroom in The Hague.
Mladic, the former commander of the Bosnian Serb Army, had been on the run for nearly sixteen years. And for nearly sixteen years, his name appeared on countless talking points, memos and speeches, used by U.S. and European officials, as well as three chief prosecutors of the U.N. war crimes tribunal in The Hague, all united in calling for the Government of Serbia to bring him to justice. His arrest was part of a global effort – pushed largely by a handful of officials on both side of the Atlantic – but an effort that was lead not by soldiers and sailors, using tanks and firepower, but by lawyers and bureaucrats, wielding pens and diplomacy.
And while his arrest and capture may have been justice delayed for some, for many visitors to the UN war crimes tribunal’s chambers last week, just seeing the once-powerful general in the dock, under the watchful eyes of U.N. guards, meant that justice would not be denied.
I must confess, I smiled when I heard the news of his capture – and to be honest – it made my day. That’s because as I smiled, I thought of all those people who, in some tragic way, this one man had brought together – prosecutors, investigators, victims, witnesses, families, government officials, diplomats, activists, and even the press – and who I knew would also pause and smile, as their collective belief in justice was renewed, and for some, even restored.
And if I am making confessions, I must also confess that, for a time, I had my doubts that he would ever see justice.
Ten years ago, I was serving as prosecution attorney at the U.N. war crimes tribunal in The Hague. And, while I had great respect for the seasoned prosecutors and investigators hard at work, I couldn’t help but notice that it seemed incredibly challenging for the international community to capture its alleged war criminals. These were the relatively early days of international justice and international tribunals as we know it (indeed, even the International Criminal Court had not yet been established), and there were few senior-level defendants in the dock.
Conspicuously missing was General Ratko Mladic.
I had been hired to work on the U.N. team prosecuting Radislav Krstic, Mladic’s lieutenant general during the Srebrenica genocide. Krstic was, at the time, the most senior military officer—and the first accused—to be tried for the crimes that took place after the fall of Srebrenica. But, as I learned more about the case—although my family is from the Balkans, I was conducting U.S. Army training at Fort Bragg when the genocide occurred and, like many Americans, didn’t know the extent of the slaughter—I became convinced that Mladic was the mastermind of the genocide. He was the perpetrator who most needed to be tried.
Just consider the devastation he caused. Sixteen years ago this July, some 8,000 Bosnian Muslim men and boys at Srebrenica were slaughtered at the hands of Mladic’s Bosnian Serb Army and related forces. Most were killed in a full-scale military operation: blindfolded with their hands tied, they were lined up before freshly dug mass graves and shot. In other cases, their captors murdered unarmed men and boys where they were detained—slaughtering them by the hundreds in buildings, using volleys of gunfire and rocket-propelled grenades. Later, earth-moving equipment would pick them up and move them to other mass graves.
Witness to Genocide
As the junior attorney working on the Srebrenica prosecution team, I was witness to what General Mladic and his henchmen had left behind: mass graves, destroyed lives, and distraught mothers, sisters, and daughters. You only need to visit a mass grave once to feel what human evil can produce—and to smell it. Having seen numerous photographs of the dead in our forensic reports, I was prepared for the sight of decomposing bodies when I participated in my first U.N. mission to Srebrenica. What I was not prepared for was the smell.
The odor of death is sticky, and oddly sweet. It clings to your clothes, serving as a reminder of carnage and destruction, long after you’ve left a mass grave. It is a smell that nauseates, as though the human condition is preconditioned to object to death; and it is a smell that traveled with me when I returned to the tribunal, to the war crimes trials that seem so clinical, so clean, in comparison to the death and destruction that they were meant to prove.
I spent three years in the Netherlands before I returned to the U.S., but, like everyone who has been privileged enough to have worked at a war crimes tribunal, I never really left the experience behind. I now can’t be in a theater without glancing up to the projection room, thinking that, in a theater in Pilica, up the road from Srebrenica, Bosnian Serb gunmen used that vantage point to open fire on a room full of unarmed civilians. I never pass by a warehouse without thinking of the one in Kravica, where over 1,000 unarmed Bosnian Muslims were slaughtered. And I never have these thoughts without thinking of two words: Ratko Mladic.
The Long Arm of Justice
For a while, I thought he’d never be brought to justice. I thought impunity would prevail, as it has done so often in human history. But something interesting has happened in the ten short years that I’ve been a lawyer: Many high-level perpetrators are being forced to face their crimes. This began with the arrest of Slobodan Milosevic and was followed by the arrests of Charles Taylor, Saddam Hussein, and, most recently, Radovan Karadzic. With each such arrest, I became more confident that Mladic’s time would run out. And finally, it did.
But we should remember that justice does not come quickly or effortlessly. As it is said, “All that is necessary for the triumph of evil is that good men do nothing.”
In the coming days and months, if all goes well, good men and women will do something—in Serbia, in Bosnia, and in The Hague — and these heroes deserve our thanks. It started with a Serbian signature on an extradition order in Belgrade, and it will continue as people pore over documents, interview witnesses, risk their lives to testify, and participate in one of the most important trials in The Hague. Indeed, there is hard work yet to be done—but, once it is, both Mladić and the victims of Srebrenica will have their due justice.
It is interesting to pause, and remember, however, that Mladic, seemly untouchable, evaded justice for more than a decade.
In the early years, he almost flaunted his invincibility, showing up at soccer games and events in Belgrade.
But after the similarly accused President Slobodan Milosevic was arrested, he went into hiding.
He was rumored to have hid out in underground bunkers and secret safe houses, sometimes in Eastern Bosnia, sometimes in Serbia - the locations kept changing - but the predictions from some were constant: Mladic would never be taken alive.
Of course, that all changed late last month when a seemingly deteriorating Mladic was arrested in Lazarevo, a tiny town north of Belgrade.
Not unlike recently released videos of a haggard-looking Osama bin Laden, the one-time man-of-action Mladic appeared much less fearsome in modern reality than he did in the video clips from the war.
The Mighty Pen
The added irony is that it was Serbia, the country that he had been hiding in for so many years, that eventually gave him up to prosecutors in The Hague.
With a stroke of the pen, Serbian Justice Minister Snezana Malovic helped bring to justice one of the most powerful generals in recent European history.
By signing the extradition order, permitting Mladic’s transfer to The Hague, Ms. Malovic, a 34-year-old spectacled technocrat, who was likely still in school when Mladic was strutting through Srebrenica, set in motion a series of events that have led to Mladic’s appearance in court.
For anyone who has followed the military career of Gen. Ratko Mladic, it seems almost comical that a legendary man of action, a wartime hero to some, both feared and loved by many of his soldiers, rumored to have been protected by fierce supporters willing to die to protect him, was sent to The Hague, not by an invading military force, but by a woman with a legal degree, protected not by body armor but by the law.
Indeed, Mladic is not the first alleged war criminal that she's sent to The Hague with a stroke of her hand.
On her first day in office, Ms. Malovic signed the extradition order for Radovan Karadzic, wartime president of Serb-controlled Bosnia, sending him to the U.N. war crimes tribunal that now holds Mladic.
Considering the power of her signature, one must wonder: Is the pen now mightier than the sword?
Of course, we can look at Libya, Syria and Sudan to find examples of modern war crimes and atrocities, but we can also look to the march of justice - and the advent of lawyers and prosecutors - for progress in the arrest of some of the most powerful men in modern history.
As mentioned earlier, after the arrest of Slobodan Milosevic came the arrest of former presidents Saddam Hussein of Iraq and Charles Taylor of Liberia. But it did not stop there. Those arrests were followed by the arrests of Chad's former president, Hissene Habre, Cambodia's Khieu Samphan, the former president of the Khmer Rouge, and of course, Radovan Karadzic.
In each case, men who were once deemed untouchable - like Mladic - have been brought to justice, not by the sword, but by the pen. Lawyers and their investigative colleagues have built criminal cases and applied to judges to approve indictments and sign arrest warrants, oftentimes leading to diplomatic efforts and the arrests of a former strongmen.
With a stroke of a pen, impunity is slowly being banished from the world. Of course, impunity will not disappear overnight and it may always endure somewhere, but Ms. Malovic's signature demonstrates that once powerful men, bent on mass slaughter and destruction are increasingly facing justice in the courtroom, rather than exile in a well-appointed villa.
The proceedings in The Hague will not be lost on a new generation of lawyers and prosecutors, determined to bring an end to impunity, or those in danger of falling victim to the world's thugs and mass murders.
To the world's victims, Mladic’s initial court appearance is a sign of progress. To the world's perpetrators like President Omar Al-Bashir of Sudan and Col. Moammar Gadhafi of Libya, it is a warning. Despite your swords, pens are ready and your days are numbered.
Mark V. Vlasic, an adjunct professor of law at Georgetown University and senior fellow at Georgetown’s Institute for Law, Science & Global Security, served on the Slobodan Milosevic and Ratislav Krstic (Srebrenica) genocide prosecution trial teams at the U.N. war crimes tribunal. A former White House Fellow/special assistant to Secretary Robert Gates and head of operations of the World Bank’s Stolen Asset Recovery Initiative, he is a partner at Ward & Ward PLLC, where he heads the firm’s international practice. This commentary is an adaptation of original articles that appeared in The New Republic and the Washington Times.
Posted @ 9:30 AM | Experts Debate the Issues: The Ratko Mladic Trial | Read Entry | 0 Trackbacks
Special Tribunal for Lebanon issues Landmark Ruling on Definition of Terrorism
by Michael Scharf*
The Special Tribunal for Lebanon (STL), which was set up in The Hague to prosecute those responsible for the 2005 bombing that killed former Lebanese Prime Minister Rafiq Hariri and 22 others, is the world's first international court with jurisdiction over the crime of terrorism. On January 17, 2011, the Tribunal's Prosecutor, Daniel Bellemare, submitted a sealed indictment for the pre-trial judge to confirm. The pre-trial judge, in turn, requested that the Appeals Chamber resolve fifteen questions related to the law governing the indictment. In response, the Appeals Chamber of the U.N.-established Special Tribunal for Lebanon handed down a landmark ruling on February 16, 2011, which is available here.
In their unanimous decision, the five STL Appeals Chamber Judges decided that "the Tribunal is authorized to construe Lebanese law [defining terrorism"> with the assistance of international treaty and customary law that is binding in Lebanon." Notably, the Appeals Chamber found "although it is held by many scholars and other legal experts that no widely accepted definition of terrorism has evolved in the world society because of the marked difference of views on some issues, closer scrutiny reveals that in fact such a definition has gradually emerged." (para 83).
According to the Appeals Chamber, the customary international law definition of terrorism "requires the following three key elements: (i) the perpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson, and so on), or threatening such an act; (ii) the intent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; (iii) when the act involves a transnational element." (para 85). Among the sources cited by the STL for this important proposition was an article published in volume 36 of the Case Western Journal of International Law (2004). (note 127).
This is the first time in history that an international tribunal has authoritatively confirmed the crystallization of a general definition of terrorism under international law. This is likely to affect the decades-long effort of the United Nations to promulgate a broadly acceptable definition of terrorism. It will also facilitate enforcement of the several counter-terrorism obligations imposed on all States by the UN Security Council in the aftermath of 9/11.
The Appeals Chamber also confirmed that the STL was "an international tribunal in provenance, composition, and regulation." (para 16). Consistent with this, the Appeals Chamber held that the STL is to apply the international modes of responsibility, including joint criminal enterprise liability, which the other international tribunals have employed. (paras 211-249). However, the Appeals Chamber concluded that the form of liability known as "JCE III" would not be appropriate for the STL to apply because it utilizes a negligence standard whereas terrorism is a specific intent crime. (para 249).
Finally, while the Appeals Chamber did not address the question, it follows from the above analysis that the STL is likely to find that head of state immunity is not applicable to its proceedings, as the Special Court for Sierra Leone did in the Charles Taylor case.
*Michael Scharf is the John Deaver Drinko-Baker & Hostetler Professor of Law and Director of the Frederick K. Cox International Law Center at Case Western Reserve University School of Law. Under an MOU with the Office of the Prosecutor, the Case Western Reserve University School of Law War Crimes Research Office provides legal research memoranda on issues pending before the Special Tribunal for Lebanon, and several other international tribunals.
Posted @ 9:00 PM | Other IHT Cases | Read Entry | 0 Trackbacks