International Justice

CJ354 Endicott College

Tag Archives: amnesty

Amnesty in Syria

 

aleppoPictured above is Aleppo in Syria today. President Assad has offered amnesty to the rebel groups and their families who have taken up arms in Aleppo, if they surrender. The rebel groups denied that they have intentions to leave Aleppo and surrender. Claims have been made that the amnesty is just a trick by the government to lure the group out of the last city they have control over at this time. There were also statements from Washington that claimed it is hard to believe that after all the conflict that has happened the government is now choosing to look after the interest of civilians. Sources also stated that due to the bombardments of missiles from the Russian and Syrian forces the rebel forces holding in Aleppo could fall within “weeks if not days”.

Victor’s Justice in El Salvador’s Civil War?

The Salvadoran Civil War lasted from 1979-1992 between the military-led government of El Salvador and the Farabundo Marti National Liberation Front (FMLN). The conflict started for several reasons: the assassination of Archbiship Oscar Romero, the rape and murder of 4 U.S. churchwomen, and the 1989 Jesuits Massacre which ultimately led to the death of 75,000 civilians.

El Salvador’s defense minister and leader of the National Guard in the 1980’s, Eugenio Vides Casanova, has been located in the US and deported from his residence in Florida. Although he has been found guilty through various court proceedings, his fate relies unknown due to the immunity he was granted under a 1993 amnesty law. Despite all the scrutiny regarding Casanova’s actions during war, many claim that the U.S. was highly involved in supporting El Salvador’s government in fighting against rebel groups.

Does the deportation of El Salvador’s defense minister, Eugenio Vides Casanova, serve as an example of victor’s justice?

Brazil’s search for Quality in their Truth Commission

A lot of controversy surrounding truth commissions stems from the ability to effectively hand out justice expediently. However, Brazil’s tactic of delaying their commission almost 50 years has proved that there is a lot to be said for waiting. A recent article by Kathryn Sikkink outlined Brazil’s investigation into human rights abuses that happened under the military dictatorship from 1964 to 1988. An interesting aspect that she touched on was that by delaying the truth commission, which was created by the Brazilian legislature in 2011, the investigation was able to examine previous inquiries and gather all of the facts. An obstacle that stands in the way however, is the inability to repeal an Amnesty Act that has protected some of the perpetrators.

In examining the success of this commission, Sikkink notes that most of the effects are yet to be seen, but that it has been much more thorough, and has been of much higher quality than most other truth commissions that have taken place around the globe. It has also fueled a significant debate about whether a statute of limitations on human rights abuses should be allowed to exist in any scenario. Sikkink comments that amnesty laws have been “overturned or circumvented” in most of the surrounding countries in order to allow for criminal prosecutions, which may explain to some degree why truth commissions in Latin America have been generally more successful. In any case, it will be interesting to see how Brazil proceeds from here, and whether or not recommendations from its investigation will hold any weight.

http://www.foreignaffairs.com/articles/143180/kathryn-sikkink-and-bridget-marchesi/nothing-but-the-truth

Amnesty International declares Hamas committed war crimes during Gaza War

In a report released Thursday, Amnesty International stated claims to war crimes committed by Hamas during the Gaza War. The focus of these claims is centered around the violence against Israeli and Palestinians through the use of indiscriminate projectiles. In their press release, Amnesty International declares, “Palestinian armed groups displayed a flagrant disregard for the lives of civilians.” Due to the nature of the indiscriminate projectiles, many of the rockets launched during the Gaza War did not accurately reach their targets and thus, many civilians, both Israeli and Palestinian, were injured and killed.

Although there were killings on both sides of the conflict throughout the entire war due to these rockets, the Palestinian government has tried to lay blame on the Israeli military for these acts of indiscriminate projectile use. Despite these claims, however, Amnesty International’s investigations led to a resounding conclusion that these projectiles were used by both parties in the war. Furthermore, Amnesty International is looking to hold Palestinian conflict groups accountable for other humanitarian law violations including storing supplies and weapons in UN schools and inciting conflict and attacks in civilian-dominated spaces.

In an effort to improve the current political and civilian situations in both Palestine and Israel post-conflict, Amnesty International is calling for both nations to begin cooperating more freely with the United Nations and the International Criminal Court. Despite similar encouragements in the past and now with this newly released report, both Hamas and the Israeli government have not actively responded nor engaged in meaningful dialogue for resolution with neither the United Nations or the International Criminal Court.

Political Pardons and the Promise of South Africa’s Truth Commission

This article discusses the South African President’s plan to pardon at least 149 “serious offenders” of Apartheid-era violence and potentially hundreds more.  This move would in many ways delegitimize the work of South Africa’s Truth Commission.  Under the TRC, perpetrators could either confess to their crimes, if the crimes were politically or racially motivated, apply for amnesty, or would face prosecution.  However, in practice, prosecution was largely an empty threat as very few ever faced charges.  Over 7,000 applied for amnesty, but only about 1,000 applications met the political motivation criterion and were granted amnesty.

With this legacy of unaccountability for the vast majority of perpetrators, the pardons currently considered by the South African government would exacerbate this problem.  Not only does it directly contradict the threat of prosecution for perpetrators made by the TRC, most concerning is the impact on the victim community.  Starting in 2007 when former President Mbeki created a Special Dispensation on Political Pardons, the pardon process has been conducted entirely in secret without any victim participation.  Pervious pardons have included high level police commissioners and those guilty of serious crimes including serial killings and bombings.  There have been many complaints from groups in civil society and victim communities, but the government has failed to make the pardon process more transparent, tarnishing the legacy of reconciliation and restoration the Truth Commission attempted to establish.

“The Amnesty Tightrope” in Colombia

This article demonstrates the tension between peace and justice we’ve discussed in class.  Ongoing conflict in Colombia may come to an end if the two parties can agree to the terms of a peace agreement, but the crucial issue is whether or not combatants will get amnesty.  This is complicated by the fact that Colombia signed and ratified the Rome Treaty in 2002, giving the ICC jurisdiction.  If the agreement relies on impunity, there may be an issue of international law, as the ICC may prosecute despite an amnesty agreement.  The ICC has already been involved with the conflict and opened a preliminary investigation as far back as 2004.

Colombia’s President, Juan Santos, has resisted, insisting on Colombia’s “right to chart it’s own path for justice,” highlighting the tension between international justice and state sovereignty.  This is a difficult balance to strike because there is merit on both sides.  On one hand, the country in which the violence is taking place should certainly have ownership over the resolution of that conflict.  It will increase the chances that the terms of the deal are followed and that the deal is perceived as fair.  On the other hand, the role of the international community as a check on the domestic justice process is crucial.  Holding those responsible, especially the elite perpetrators in positions of power, cannot be compromised.  Prosecution is necessary not only to ensure there is justice for the victims of this conflict, but also to establish a deterrent precedent in future conflicts.

The Curious Case of Dominic Ongwen: Child Soldier turned LRA Leader

As we discussed in class, Dominic Ongwen was abducted at age 10, and forced to become a child soldier in Joseph Kony’s Lord’s Resistance Army (LRA) in Uganda. As the global Kony 2012 campaign asserted, Kony’s LRA thrived off of the kidnapping and manipulation of many young children—forcing hundreds of impressionable youths to commit heinous crimes on behalf of Kony, who is portrayed as “a godly person” (Invisible Children). As many of these blog posts contend, Ongwen’s adult actions (which he will be tried for by the ICC) consist of seven counts of war crimes and crimes against humanity. However, to echo the sentiments of many of my classmates, “Ongwen is the first person to be tried for the very same crimes for which he was a victim,” introducing an inherent complexity to his case (ckeefe2016’s post). Will it be possible for the ICC to rectify that fact moving forward, and to determine a truly appropriate sentence for him? Will they be able to determine if Ongwen was really responsible for his actions, or if his extensive childhood trauma as a child soldier has forced him to this terrible fate?

Today, data has been collected from “87 war-torn counties,” leading to an estimate that “300,000-500,000 children are involved with fighting forces as child soldiers” (Harvard School of Public Health). These children are forced to commit unspeakable atrocities from age 7, and are even sometimes “injected with drugs to curb their inhibitions against committing violence” (Harvard School of Public Health). According to the Irish Forum for Global Health, “even when being compared to other children that lived through civil wars and have witnessed the brutality of war, former child soldiers suffer from markedly higher levels of psychological disorders” (IFGH). All three of the articles cited above assert that it is critical for child soldiers in the post-conflict environment to receive treatment, in order to overcome the enduring scars from their traumatic experiences. Perhaps the most problematic discrepancy in these international justice cases is the divide between former child soldiers that receive amnesty and mental health care, while others are prosecuted for their crimes. Ongwen is undoubtedly responsible for countless heinous atrocities he committed as Kony’s right-hand man, and should rightfully be punished to the fullest extent of the law for his wrongdoings. However, it becomes troublesome to think that he may have received amnesty if he had not been manipulated from such an early age. Further, this case poses many interesting problems due to the difficulty of assessing the state of mind of Ongwen when he committed these unspeakable atrocities and due to the lack of relevant jurisprudence for the ICC.

Disparate Amnesties

British politician Peter Hain, amongst others, has recently called for an official amnesty to be extended to the British soldiers involved in the Bloody Sunday massacre of February 1972. In 2010 the Saville Inquiry reported that British Paratroopers opened fire first, and in 2012 the Police Service of Northern Island launched an investigation that could take around four years to conclude. 

Hain et al’s arguments can be summarised as being two distinct but related ones. The first is the stability of the current region: would it really help stability, 42 years on, if old crimes were dug up and prosecuted? The second is the fact that the Republican terrorists were granted an effective amnesty, and thus it would be “an outrage” to put servicemen on trial if terrorists had been given an amnesty.

On the first reason, stability, the implication seems to be that justice has an expiry date, at least when bringing the facts to the light of day would cause more harm, in terms of upsetting locals and potentially causing more violence, than the intrinsic benefit ‘justice’ provides. Whilst we might like to believe a nation such as the UK ought to always have room for justice, it is not difficult to see how such a sensitive incident could impact British policy, especially if the police force is able to interview the 250 soldiers it wants to.

However, the second topic seems more relevant in terms of the treatment of amnesties. That Republicans were given an effective amnesty. Why, then, should British soldiers be treated any differently? Perhaps because, by definition, soldiers are under the direct rule of military law, and their ought to be a differentiation in terms of conduct for soldiers. Perhaps also because, for pragmatic reasons, the prosecution of soldiers might be less likely to lead to instability than Republicans. Finally, perhaps because the Saville Inquiry put the police in an impossible situation, by stating the British Paras opened fire first. Incidentally, here we see a potential interpretation of the ‘most responsible’ aspect of the crime, in much the way that the ICC views such crimes. This is not to say Republicans did nothing wrong, but perhaps it is possible to make the argument that by opening fire first, the British were the ‘most responsible’, and therefore should be the ones prosecuted. What seems clear is that amnesty, if not doled out in equal measure, seems difficult to take, especially when surrounded in the language of ‘servicemen’ and ‘terrorists’, especially when it is the latter that has been given de facto amnesties. 

Yet one question to come out of this is what similar judgements will say about the treatment of Iraqi, Afghan and other PoWs by the British Army. It is also easier to prosecute a crime many years after the fact when, to an extent, the negatives about the politics have faded. It is much harder to do so now, perhaps why attempts at holding British troops responsible in these conflicts have had a very different, more lethargic feel about them. What, then, might similar arguments be 40 years from today? And who should get amnesty? 

Relationship Between Amnesty and Justice…A Constant Struggle

Successful amnesty is viewed as a significant way to reach the desirable goal of reintegrating perpetrators. In the process of granting amnesties efforts to uncover the past are disillusioned, and memories of the past are left to simmer and possibly be re-ignited causing future violence. When leaders of war crimes are granted amnesty the victims who underwent horrible atrocities whom see the perpetrator receive compensation for the harm they themselves underwent, in turn leads victims to feel that justice has not been met. Amnesty from the Greek root Amnestia, literally means to forget. Is it fair for the court to grant amnesties and push the victims to simply forget what has happened to them? I think the reason behind granting amnesties is more political than social. Example of political amnesty (political incentive to promote peace) Charles Taylor. Self-given political amnesty classic case April 1978 General Pinochet introduced a tailor-made amnesty law that covered crimes and misdemeanors committed since the coup of 1973.

The ICC chief prosecutor Bensouda in regard to Libya trying the case of Gaddafi and Senussi advocates that Libya have the right to implement its own judicial system and conduct a fair trial however she urges Libya should not grant amnesty for the war crimes committed. She formally stated,

“My Office takes note of Law 38, granting amnesty at the national level for “acts made necessary by the 17 February revolution”; as well as Law 35, which purportedly ensures that any act found to be in contravention of international laws and human rights covenants will not be exempt. I encourage the new Libyan government, scheduled to be sworn in the coming days, to ensure that there is no amnesty for international crimes and no impunity for crimes, regardless of who is the perpetrator and who is the victim”

It is interesting that she outright states Libya should not grant Gaddfi and Senussi amnesty. Perhaps this is her way of aligning justice for the victims as a higher objective than political peace.

Questions that I want to continue thinking about include: are amnesties capable of securing justice and what power do amnesties have in the eyes of perpetrators?  (especially when they know amnesty can be retracted such as in the case of Charles Taylor)

 

http://jurist.org/paperchase/2012/11/icc-prosecutor-urges-libya-not-to-grant-amnesty-for-war-criminals.php

 

The Trial of Hebert Veloza Garcia, a test of Transitional Justice in Colombia

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In 2005 the Colombian Congress led by then president Álvaro Uribe Vélez passed Law 975, the Justice and Peace Law. Law 975 offered paramilitary leaders and soldiers who were not included in previous attempts to demobilize extra-legal armed forces reduced sentences if they told the truth about their crimes, paid reparations to the victims, and promised not to return to a life of crime. Currently in Colombia under Law 975 paramilitary troops that opt to demobilize and qualify receive reduced prison sentences of 5-8 years. Article 29 of the law states that the severity of the prison sentence will be based off of the “gravity of the crime and the effective co-operation provided in the clarification of the same.” Previously laws to encourage the demobilization of extra-legal armed forces had not included amnesties for those whom had committed human rights abuses as the Inter-American Commission on Human Rights, a part of the Organization of American States (OAS), does not recognize amnesty for those who commit crimes against humanity, war crimes, and/or human rights violations.

On October 30th, 2013 Hebert Veloza Garcia, a paramilitary commander of the AUC, was convicted of 85 crimes including cases of torture, forced disappearance, and 105 homicides. Under Law 975, in exchange for his truthful confession, he received a prison sentence of seven years and a fine of approximately 5.2 million dollars. Garcia is currently serving time in the United States on drug charges and will serve the seven years on his return. Veloza’s trial and subsequent sentencing was considered a victory for transitional justice in Colombia.

Sikkink argues that because people have such strong ideas about justice victims are always disappointed and disillusioned by the results of trials, but all I can see is a man who committed over 85 separate crimes including torture, forced disappearances, the forcible recruitment of children, and homicide only serving seven years in prison.

Veloza was found guilty of importing to and selling cocaine in the United States in excess of five kilograms. In the U.S. this carries a minimum sentence of ten years in prison to a maximum of life in prison. For ordering and taking part in massacres and acts of torture. Veloza received seven years in prison. The correct way in which to enact transitional justice is a topic few agree on, but can and should amnesty be a true part of transitional justice?

Comments on this post have suggested that the reason for this short sentence is that Colombia is seeking not punishment but the fixing of broken relationships and a restoration of harmony. This case and the comments on my original post bring up a very important debate in the field of transitional justice: restorative versus retributive justice. The South African Truth Commission is the most publicized example of a purely restorative mode of justice, and though it has many critics, it is considered a success story. But what readers need to understand is that the situation of the county needs to be taken into account when deciding the correct form of justice to implement. Colombia has been in a low-intensity civil war for the last 50 years and because of this, and other factors, the lines between illegal and legal armed actors and those in positions of political power have blurred on more than one occasion. The government does not have the infrastructure in place or the authority to carry out a process like the South African Truth Commission. There are arguments for both a retributive and a restorative form of justice for the country, but after so much time I feel that the country needs to focus more on retributive justice with features of restorative justice in order to reassert the government’s authority.

Sources:

http://www.fride.org/download/WP57_Colombia_Desmili_ENG_abr08.pdf

http://ictj.org/news/hebert-veloza-conviction-offers-new-insight-colombia%E2%80%99s-paramilitary-phenomenon

http://www.justice.gov/dea/divisions/nyc/2009/nyc030609p.html

Impunity Gap: Afghanistan

Transitional justice for Afghanistan has yet to be realized. Certainly, it is logical to suggest that justice for crimes committed during the Taliban regime and during the subsequent foreign intervention must wait until peace and stability have returned to Afghanistan. But this case exposes many key transitional justice dilemmas – on the tension between peace and justice, international (Western) and local cultures modes of justice, the question of amnesty and political inclusions for former Taliban.

Read the article by Kouvo and Mazoori on “Reconciliation, Justice, and Mobilization of War Victims in Afghanistan,” this Guardian article on amnesty for the Taliban and this follow up Wired article on results of the amnesty deal.   (These are all short articles.) Address one or more of the following questions based on what you read in these articles any any additional online research.

a) What types of atrocities in Afghanistan should be addressed by transitional justice mechanisms? Should transitional justice only address crimes of the Taliban?

b) What are victims demanding in terms of justice and reconciliation? How have they mobilized?

c) The amnesty deal for Taliban is very controversial. What are the arguments for and against giving them to the Taliban? What conditions and limits should be included with this amnesty?

d) What, if any proposals, have come from the United Nations on justice in Afghanistan?

d) What cultural mechanisms of dispute resolution mechanisms can be modified for transitional justice?

e) Is this a peace vs. justice dilemma? Should justice wait until the country has stabilized? Or can justice be used to end the insurgency?

(Please provide links to any information you use in our online research.)

Peace and Justice for Côte d’Ivoire

The issue of accountability for crimes committed in the current crisis in Côte d’Ivoire will come to the fore during the present UN-led negotiations for Gbagbo’s surrender and especially in the political transition that is soon to come once Ouattara is in power. Côte d’Ivoire is a signatory to the Rome Statute and has not yet ratified, but has accepted ICC jurisdiction. Therefore Ocampo could initiate an investigation without referral from the Security Council.

If the ICC intends to investigate crimes committed on all sides, it will have the difficult task of establishing whether both Gbagbo and Ouattara had enough control and command over forces “loyal” to them to be held responsible for atrocities committed by these forces. Also, the ICC will have to decide whether its investigations are limited to crimes committed in the present crisis or extend the temporal jurisdiction back far enough to encompass a broader range of crimes committed in this political contest.

1) Should the international community endorse an amnesty-for-peace deal for Gbagbo?

2) What crimes have been committed and are they of sufficient gravity to warrant an investigation by the International Criminal Court?

3) What should the international community demand of the forthcoming government in Cote d’Ivoire in terms of accountability?

Feel free to address the above questions or post news and updates related to the crimes committed, who is responsible, and the ICC’s intentions.

Also, take a look at this incredible photo essay on the violence and key players.