International Justice

CJ354 Endicott College

Tag Archives: Impunity

Why Anniversaries Could Be Damaging: Cambodia and the Khmer Rouge

In the Foreign Policy article by Justine Drennan, she discusses how April 17th, 1975 which commemorates Phnom Penh’s fall to the Khmer Rouge is a date that represents just one point in an ongoing disaster brought about not only by the Khmer Rouge but also France. She goes on to say that in having an anniversary, it can fade the context of the issue since it only focuses on one aspect of the atrocity. In having a strict timeline that has clean dates as to when a tragedy started and ended it can “help conceal the events that led to them”. It is interesting to think about timelines in the context of tribunals and truth commissions. I agree with Drennan’s argument in that timelines do seem to constrict the rhetoric surrounding tragedies however I also find them necessary in order for the mechanisms of international justice to work. It would be rather hard to have a tribunal without time limits. Drennan recognizes that having an anniversary such as April 17th does help victims and the general population to memorialize the experience. But she continues to argue that anniversaries “draw too clear a line between those considered guilty and the rest” which is problematic when considering atrocities including the one in Cambodia which isn’t so black and white when it comes to identifying those who are guilty or not. Anniversaries serve to encapsulate “the suffering in a neat span of time” which ultimately can lead to belittling the roles of different actors in the face of the atrocities committed.

UN Peacekeeping and Accusations of Sexual Abuse

An internal study conducted by the United Nations was recently leaked to the public, bringing to light ignorance towards sexual exploitation across peacekeeping missions. The study looked at missions in the Congo, Haiti, Liberia and South Sudan. These countries account for 85% of all sexual abuse cases, 30% of which involve minors, but the study has found that the actual number of incidents of sexual abuse could be far higher than previously reported.

This report shifts the international conversation about impunity away from the actions of criminals and towards the actions of those we expect to protect the vulnerable. How can we expect the international judiciary system to keep criminal leaders and their followers accountable for their actions when it cannot even keep its own forces accountable? Peacekeepers are some of the most easily accessible figures in the international justice system considering their position within the United Nations, and yet “UN personnel in all the missions [the researchers] visited could point to numerous suspected or quite visible cases of [Sexual Exploitation and Abuse] that are not being counted or investigated,” according to the report.

From allegations of peacekeepers forcing Liberian and Haitian girls to perform sexual favors for food in 2006 to peacekeepers in the Ivory Coast, southern Sudan and Haiti raping children as young as 13, the report highlights a disregard for Ban Ki Moon’s “zero-tolerance policy ‘towards all forms of sexual exploitation and abuse.'” (The Guardian)

How can the international community expect transparency in all states when the United Nations itself is not transparent?

Impunity in the Democratic Republic of the Congo

2118453159The Democratic Republic of the Congo has been a zone of political upheaval and armed conflict for the better part of the last twenty years, and as such its population has been subjected to blatant instances of war crimes and crimes against humanity, as well as indications of genocide. Regardless of recent relative stabilization in the country, two provinces continue to struggle with atrocity. Thousands of people are continually displaced from the two Kivu provinces, and civilians are being raped and massacred while their homes and schools are destroyed and looted. The Mai Mai militia has perpetrated many of the rapes, killings, mutilations, and abductions in the past two decades of conflict, and on January 6, of 2011, a Congolese arrest warrant was issued for the the militia’s leader, Ntabo Ntaberi Sheka.

In a blatant show of impunity, Sheka openly traveled to Goma in July of 2011 for health treatments and ran for parliament in November, conducting his campaign across the country’s Walikale territory. There are suspicions that Sheka, along with other war criminals in the region, are kept abreast of all military operations, participate in the exploitation of regions to trade their resources, and receive arms and ammunition when needed.

Typically, this would be a case for the International Criminal Court, especially when we consider the country’s signing and ratification of the Rome Statute in 2002. Unfortunately, the legislation of the ICC was never successfully implemented in the DRC due to the neglect of the transitional government in power at the time and the tabling of subsequent proposals. Instead, war crimes, crimes against humanity, and acts of genocide have been adjudicated by a system of military tribunals since 2002. In response to concerns for the legal rights of those involved in the tribunals, the DRC gave the 12 provincial Courts of Appeals the power to hear cases concerning atrocities in 2013. The ICC is also working to utilize temporary legislation in the country to adjudicate the crimes committed in the Democratic Republic of Congo.

The DRC has seen little progress in the pursuit for justice within the country. Proposals for specialized tribunals like those established in Cambodia have been abandoned, and the government has largely ignored the crimes committed before the signing of the Rome Statute. All of this demonstrates that the Democratic Republic of the Congo is struggling with a significant impunity problem, and the absence of justice will continue until national and international leaders shift their focus to prosecuting war crimes, crimes against humanity, and acts of genocide.

I wonder how the justice system in the DRC would evolve were the ICC to reach out to the current government regarding the lack of permanent national legislation supporting the charter of the court, or if stronger powers in the international community were to voice support for the establishment of specialized tribunals to address acts of atrocity and to adjudicate perpetrators of such crimes. Impunity is a national problem that is perpetuated throughout all levels of the government, and it will likely take international voices to change the landscape of justice in the Democratic Republic of the Congo.

Debate: Is the International Community Abandoning the Fight Against Impunity?

Over the next several weeks, starting Feb 9th, the International Center for Transitional Justice is hosting an online debate called “Is the International Community Abandoning the Fight Against Impunity?” Given persistent impunity gaps in places like Syria, North Korea, Nigeria, Sri Lanka, Sudan, etc. and waning political will to ensure that those “most responsible” are held accountable, the debate is very timely.

The debate will be moderated by ICTJ President, David Tolbert and include several important figures in the field of international justice:

Fatou Bensouda, Chief Prosecutor of the International Criminal Courtimpunity

Zeid Ra’ad al-Hussein, UN High Commissioner for Human Rights

Michael Ignatieff, scholar and human rights expert.

Betty Murungi, legal and human rights scholar

Aryeh Neier, legal scholar, human rights activist, and former director of Human Rights Watch

This is a great opportunity for our class to engage directly with contemporary debates about international justice – both in terms of how justice should work in theory, and the challenges faced in practice. So, bookmark the page and I’ll send out reminders when the new debate positions are posted for your to read before class. You can also follow debate commentary on Twitter, with #ImpunityDebate and @theICTJ.  (The debate is open for public commentary online, and you are also welcome and encouraged to post replies on the ICTJ’s site.)

Impunity for Crimes of Sexual Violence

Throughout this course, there have been many discussions about the different systems of justice and their effectiveness in establishing peace and reconciliation in post-conflict societies: the ICC, local judiciaries, hybrid courts, and even truth commissions. However, in many case studies, one of the main criticisms of these institutions is that they fully acknowledge crimes of sexual violence in their respective justice, peace and/or reconciliation proceedings.

In the case of the ICC, sexual violence is considered a crime against humanity based upon Article VII of the Rome Statute. On March 7, the ICC convicted Germain Katanga to four counts of war crimes and one crime against humanity for his part in killing more than 200 people in a province of north-eastern Democratic Republic of Congo.However, Katanga has been cleared of charges for sexual violence and the use of child soldiers. The initial ICC investigations found that women who survived the 2003 massacre had been raped or kept as sex slaves but they did not have sufficient evidence to convict Katanga of carrying out these crimes. While it is clear that the ICC investigates crimes of sexual violence, they still have yet to convict any criminals of such crimes. It is possible that Katanga’s case mirrors that of Thomas Lubanga, who was only convicted of conscription of child soldiers. Despite evidence suggesting involvement in other atrocities, the ICC decided to move forward with their prosecution based on evidence that was already available to them. Even if this is true for Katanga’s case, however, should the ICC be criticized for not taking the additional time to collect further evidence that would ensure Katanga was held accountable for crimes of sexual violence?

In addition to analyzing the ICC, it is also important to discuss how sexual violence has been acknowledged domestically, particularly in Rwanda’s Gacaca courts. The HRW’s report on the ‘Barriers to Justice for Sexual Crimes’ states that 2001 Gacaca law discouraged women from testifying about their experience of sexual violence due to the social and procedural obstacles they faced in reporting the crime, the public nature of the Gacaca process, and the lack of security and confidentiality protections for witnesses. This causes additional barriers for investigators considering the hesitation of witnesses to report these crimes and difficulties in providing sufficient evidence to ‘prove’ that a victim was subject to sexual violence when there is an absence of witnesses to ‘validate’ the victim’s testimony. Furthermore, there are inconsistent verdicts of trials involving sexual violence due to lack of definition of rape or sexual torture under Rwandan laws. Genocide judgments applied the terms “rape” and “sexual torture” inconsistently, and none of the post-1994 judgments invoke a definition of rape or defilement.

What is particularly surprising about the lack of convictions for sexual crimes in Gacaca courts is the fact that the ICTR’s judgement in Prosecutor v. Akayesu held Jean-Paul Akayesu accountable for prohibiting rape as a part of a systematic attack against a civilian population, essentially establishing that sexual violence can be punishable as a crime against humanity. These differences are likely based on the lack of capacity for Gacaca courts, in addition to the stigmatization of rape culture in Rwanda and the public nature of the Gacaca process. However, in light of the Rwandan Senate’s report on the ICTR stating that it “did not include Rwandan prosecutors and judges despite having the requisite qualifications”, one must also question the stigma of sexual violence in Rwandan culture in comparison to justice institutions that are perhaps forcing particular principles of justice to initiate change.

While this is only one case study, it is important to note that other domestic proceedings have largely ignored crimes of sexual violence including South Africa’s Truth and Reconciliation Commission and the Historical Clarification Commission of Guatemala. There is no doubt that obstacles to reporting, investigating, and proving crimes of sexual violence in courts are a result of the lack of capacity and resources of courts and commissions to thoroughly address such cases (especially considering the gravity and breadth of atrocities that have occurred). However, it is evident that there are sociocultural barriers that are perpetuating the impunity of sexual violence as a crime against humanity. If such impunity continues in these conflicts in both domestic and international peace/justice institutions, to what extent is reconciliation and justice actually achieved for victims?

Nepal hopes for truth and reconciliation

Recently, victims from Nepal’s armed conflict that lasted from 1996 to 2006 have expressed renewed hope that a Truth and Reconciliation Commission (TRC) could finally become a reality under the country’s new Constituent Assembly and prime minister. Since the end of the civil war between government forces and Maoist militant combatants in 2006, many failed efforts have been made to try and end the impunity for perpetrators of war time abuses. According to the Nepal National Human Rights Commission, over 17,000 people were killed in the conflict while thousands more were tortured. Over 3,000 cases of severe human rights abuse have been recorded by the Commission, with over 850 cases of forced disappearance also under investigation. Yet, despite the scale of the violence, many of the perpetrators have not been brought to justice.

Yet, in the 2006 Comprehensive Peace Accord that was brokered by the UN after the end of the civil war, one of the most contentious issues was the wish to set up a Truth and Reconciliation Commission. While the process to set up a TRC began in 2007, it has continually been fraught with criticisms and controversies. Many were concerned about blanket amnesty and the question of impunity for many of the main perpetrators of the violence on both sides of the conflict. However, on January 2, 2014 the victims of the violence finally won a major victory when the Nepal Supreme Court ruled that blanket amnesty in serious cases of human rights abuse would be ruled as unacceptable before a court of law. Yet, despite this progress, many believe that the establishment of a TRC is still essential for the victims of the conflict to heal and be able to move on.

“The peace process will remain incomplete if the severe crimes committed during the armed conflict are not addressed, and justice is not provided to the victims,” said Bed Prasad Adhikari, NHRC’s top official. Many advocates of a TRC in Nepal believe that it is the first step towards justice and a lasting peace. Some victims, like Nanda Prasad Adhikari and his wife Ganga,  believe in the need for justice enough that they are willing to sacrifice everything for it.  They have been on a hunger strike since November 2013 in the hope of securing justice for their teenage son, who was executed in 2004 by Maoists rebels and the couple have recently been hospitalized because of it. Many of the victims believe that the newly elected Constituent Assembly and Sushil Koirala as prime minister represent the first steps towards the implementation of a TRC and justice once and for all. I thought that this case was interesting because it openly outlaws blanket amnesty in the case of human rights abuse as a form of impunity. It will be interesting to track if Nepal, despite the extreme political opposition against it, manages to implement a Truth and Reconciliation Commission. The victims of Nepal’s violence have been trying for a TRC since 2006 but it has managed to gain very little traction within the new government. What actions could be taken–either by domestic institutions or international ones–to force the enactment of a TRC? Would it still be beneficial to the victims? Does the ability to seek justice reduce over time or will it still be as effective as it would have been seven years ago?

Sources:

http://www.irinnews.org/report/99662/nepal-s-renewed-hope-for-truth-and-reconciliation

http://www.hrw.org/news/2014/01/21/nepal-setbacks-women-minorities-justice

Oscar-Nominated Documentary “The Act of Killing” and Reconciliation in Indonesia

The Act of Killing

The Act of Killing, a 2012 documentary about the mass killings in Indonesia that occurred after a failed coup attempt in 1965, was recently nominated for an Oscar for Best Documentary. The documentary has generated substantial international interest and an impressive list of awards in the past few years, and its nomination for an Academy Award has reignited the discussion on Indonesia’s often forgotten past of mass violence and how modern day Indonesia is still struggling with reconciliation.

The documentary featured the actual, now aging, killers from the 1965 massacre, primarily gang leader Anwar Congo. These men were gangsters at the time who were hired by the military to carry out the killings as retaliation against the resurrection and as a part of the government’s anti-communist measures at the time. It is estimated that over one million people were killed within a year. Congo is still a prominent figure in Indonesian society, as are many of his fellow killers.

The Act of Killing generated a lot of controversy over the fact that it had these killers reenact their own crimes. In doing so, the documentary showed how the killings are remembered in Indonesian collective history–they are either not taught at all, or they are shown as a positive political by the regime that is still in power. The killers themselves are celebrated and unremorseful. Many of them continued to serve in the military, and are proud of the acts of killing that they committed in 1965, and were eager to reenact them for the camera.

The film is meant to demonstrate how, in the 40+ years since the killings, Indonesia has made little progress in addressing and moving on from the atrocity. But it will be interesting to what role the film itself, which has gained so much traction, will play in reconciliation process.

For one, the killers who reenact the murders they committed are shown on screen watching their own reenactments and expressing bewilderment at how truly violent their acts are. Congo is shown in the trailer watching his own scene and asking “have I sinned?”. A critical step in the reconciliation process is the admittance of guilt by the perpetrator, and it appears that one of the effects of the reenactments was some degree of remorse by the featured killers.

Then there is the effect that the movie has had on Indonesian society as a whole. It has provided a way for victims to come together and form solidarity over their shared past. It has spurred reunions among victims, and in some cases has resulted in the descendants of victims and the descendants of perpetrators to come together and learn about the mistakes of their parents and grandparents.

But whatever positive reception the movie has received within Indonesia has been overshadowed by the overwhelming criticism of the film, particularly by the Indonesian government. The presidential spokesman for foreign affairs, Teuku Faizasyah, denounced the film for portraying Indonesia as a lawluess and cruel nation, and insisted that the modern Indonesia was not the same. In this, Teuku is effectively claiming that modern Indonesia cannot be judged by the acts the government took during the Cold War, despite the fact that nobody was ever held accountable for those acts. Teuku then said that Indonesia is still in a period of reconciliation, and that the govnernment was trying to handle the problems of its past in its own way.

Despite Teuku’s claims, it appears that there has been little official action to try to address these killings. The National Commission on Human Rights (Komnas HAM) conducted a four-year investigation into the violence, but when it presented its findings to the Attorney General’s Office, the request to conduct an official investigation was turned down. No prosecution has occurred, and many officials still do not openly acknowledge that such killings took place.

The Act of Killing thus has huge potential to both bring forth the truth about the killings and to motivate victims and ordinary citizens to call for accountability. As the Academy Awards come up and as the film continues to gain traction, it will be interesting to see its effects both within Indonesia and internationally.

Relevant articles:
http://www.independent.co.uk/arts-entertainment/films/features/the-act-of-killing-oscar-nomination-for-what-must-be-the-bravest-film-crew-of-the-year–but-no-one-knows-their-names-9073035.html

http://www.thejakartaglobe.com/news/indonesia-reacts-to-act-of-killing-academy-nomination/

http://www.nytimes.com/2013/07/14/movies/the-act-of-killing-and-indonesian-death-squads.html?_r=0

http://www.salon.com/2014/01/17/creators_of_oscar_nominated_documentary_the_act_of_killing_fear_retribution_partner/

Possible Constitutional Reform in Colombia may endanger justice

UN independent experts urge Colombia to reconsider proposed criminal law for military

Amidst peace negotiations that could outline the future of transitional justice in Colombia, a new constitutional reform could pose grave danger to fairness and accountability in what concerns those crimes committed by members of the government.

The proposal entails giving military courts jurisdiction over human rights violations perpetrated by the military, jurisdiction that should belong to regular criminal courts. It would create “a Penal Guarantees Court to deal exclusively with accusations against members of the military or police forces of the Fuerza Pública.” Many activists and human rights monitors argue that this would create preferential treatment for members of the military, creating an atmosphere of impunity.

11 independent human rights activists and experts wrote an open letter to the Colombian government warning it of the dangers of such a proposal, calling it a “historic setback….in the fight against impunity…”. The United Nations human rights office also called on the Colombian government to reconsider such a reform.

“Think Again: International Courts”

I recently came across an extremely pessimistic article about international justice (the caption reads: “It’s time to abandon the false hope of international justice”). It’s from a few years ago, but I felt like it fit in nicely with what we have been discussing through the course thus far. It specifically hits on the ICTY and ICTR. The author claims that neither Serbs, Croats, and Bosnians, nor Rwandans through the tribunals aided in the reconciliation process. Less than 36% of Rwandans thought it did promote reconciliation in 2002. She also points out that the justice process is long and expensive. Milosevic’s trial took years, prolonging the hatred in the hearts of many Serbs, and the ICTR took “10 years to complete the same number of trials that Nuremberg conducted in less than a year.”

The author also lacks faith in the truth-telling process, citing Spain and Mozambique as having been successfully reconciled by taking a “don’t look back” approach to resolving their issues. She then goes on to refute the claim that “Giving Amnesty to War Criminals Encourages Impunity.” If we look at South Africa and Mozambique, she says, we will find that while both implemented amnesties, the rule of law actually improved because the leadership was focused less on prosecuting and more on rebuilding. Politics may also have a greater effect on the rule of law than justice, she suggests. Kagame’s authoritarianism in Rwanda undermined the rule of law even though his government was prosecuting many convicted of war crimes.

Lastly, she claims that the world does not need the ICC. “We can predict that the ICC will be no more effective than the international courts for the former Yugoslavia and Rwanda in improving the lives of war-zone residents who are its primary stakeholders. That is, not very effective at all.”

She lacks solid empirical evidence in some areas and some of her fact-finding seems inadequate. (I am never a fan of researchers quoting some people they met on the ground and then extrapolating their answers as if they were representative of the entire population.) However, I feel like it’s a good measure to test what we’ve learned so far. If you support international justice, it may be worth going through her arguments and seeing if what we have read so far allows you to refute any, if not all, of her claims.