The Pre-Trial Chamber I of the International Criminal Court declined to confirm charges of War Crimes against Abu Garda today, less than a week after the Appeals Chamber reversed the decision to exclude the charge of Genocide against Omar Al-Bashir.  The Court stressed that the incident related to the charges - an attack on African Union personnel that killed a dozen peacekeepers - was of a sufficiently grave nature to be considered by the Court, but that there was not sufficient evidence of Abu Garda’s involvement.  Abu Garda is the former commander of the Justice and Equality Movement in Darfur.  Abu Garda surrendered himself voluntarily last May, making him the only accused party of the Situation in Darfur to face the Court.

The Al Bashir reversal last week was based on a procedural issue and will send the case to a new Pre-Trial Chamber to assess the charges with an updated standard of proof:

In its 4 March, 2009, decision, Pre-Trial Chamber I rejected the Prosecutor’s application in respect of genocide stating that it would issue an arrest warrant for genocide only if the only reasonable conclusion to be drawn from the Prosecutor’s evidence, based on “proof by inference”, was that there were reasonable grounds to believe in the existence of genocidal intent. The Appeals Chamber found that demanding that the existence of genocidal intent must be the only reasonable conclusion amounts to requiring the Prosecutor to disprove any other reasonable conclusions and to eliminate any reasonable doubt. The Appeals Chamber found this standard of proof to be too demanding at the arrest warrant stage, which is governed by article 58 of the Rome Statute. This amounted to an error of law.

From the I.C.C.

Situation in the Democratic Republic of the Congo:
In this situation, three cases are being heard before the relevant Chambers: The Prosecutor v. Thomas Lubanga Dyilo; The Prosecutor v. Bosco Ntaganda; and The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui. The accused Thomas Lubanga Dyilo, Germain Katanga and Mathieu Ngudjolo Chui are currently in the custody of the ICC. The suspect Bosco Ntaganda remains at large. The trial in the case The Prosecutor v. Thomas Lubanga Dyilo started on 26 January, 2009. The trial in the case of The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui started on 24 November, 2009.

Katanga and Ngudjolo Chui case:
The trial of Germain Katanga & Mathieu Ngudjolo Chui resumed on 26 January, 2010.  The trial in the case of The Prosecutor v. Germain Katanga & Mathieu Ngudjolo Chui resumed on 26 January, 2010. The hearing before Trial Chamber II started with the deposition of an expert witness, Mr Zoran Lesic, visual technician at the International Criminal Tribunal for the former Yugoslavia, who testified in English.

Situation in the Central African Republic:
In the only case in this situation, The Prosecutor v. Jean-Pierre Bemba Gombo, Pre-Trial Chamber II confirmed, on 15 June 2009, two charges of crimes against
humanity and three charges of war crimes, and committed the accused to trial before a Trial Chamber. The trial is scheduled to start on 27 April, 2010.

Situation in Darfur, Sudan:
In the situation in Darfur, Sudan, three cases are being heard: The Prosecutor v. Ahmad Muhammad Harun (“Ahmad Harun”) and Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”); The Prosecutor v. Omar Hassan Ahmad Al Bashir; and The Prosecutor v. Bahar Idriss Abu Garda. Three warrants of arrest have been issued by Pre-Trial Chamber I for Harun, Kushayb and Al Bashir for crimes against humanity and war crimes. The three suspects remain at large. A summons to appear was issued for Abu Garda who appeared voluntarily before the Chamber on 18 May 2009. Abu Garda is not in the custody of the ICC. The hearing of confirmation of charges took place from 19 to 29 October 2009.

Al Bashir Case

Appeals Chamber to deliver on 3 February, 2010, its judgment on the Prosecutor’s appeal against the arrest warrant decision.  On Wednesday, 3 February, 2010, at 10:30 a.m. (The Hague local time), the Appeals Chamber of the International Criminal Court will deliver, in public session, its judgment on the Prosecutor’s appeal against the “Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir”.  In that decision dated 4 March, 2009, the majority of Pre-Trial Chamber I found that the material provided by the Prosecutor in support of his application for a warrant for the arrest of Omar Al Bashir failed to provide reasonable grounds to believe that Omar Al Bashir had the specific intent to destroy, in whole or in part, the Fur, Masalit and Zaghawa groups. Consequently, the crime of genocide was not included in the warrant issued for the arrest of Omar Al Bashir.  On 6 July, 2009, the Prosecutor appealed the decision, in relation to that charge, submitting to the Appeals Chamber that the majority of Pre-Trial Chamber I erred when requiring that the existence of reasonable grounds to believe that the person has committed the alleged crime must be the only reasonable conclusion from the evidence presented by the Prosecutor.

Year in Review:  This year in War Crimes began with two historical events that will change the shape of War Crimes and International Law for years to come.  The first of those events:  The beginning of trials at the International Criminal Court.  This marks the beginning of International Criminal Justice on a truly global level.  While it has been criticized on a number of levels it has provided a venue for the prosecution of War Crimes that currently spans four international situations.  The Court was inaugurated with the Lubanga trial and is currently proceeding with the prosecution of War Criminals from Uganda, the Democratic Republic of Congo, the Central African Republic and the Sudan.  The second major War Crimes event that brought in the new year was the I.C.C.’s issuing of an arrest warrant for sitting Sudanese President Omar Hassan Ahmad Al Bashir.  This marks the first arrest warrant issued for a sitting Head of State.  Heads of State were to that point considered immune to prosecution as outlined in International Law.  The arrest warrant issued for Bashir, while possibly unenforceable, is the biggest step to date in the direction of universal jurisdiction for the prosecution of the most serious War Crimes.  Bashir’s arrest warrant signaled the beginning of the end to impunity for currently employed tyrants.

Other major events in the year in War Crimes 2009 include the Israeli invasion of Gaza early in the year which resulted in the Goldstone Commission finding evidence of War Crimes perpetrated by the IDF.  The thirty year Sri Lankan civil war came to a bloody end this year and elicited charges of War Crimes and Crimes Against Humanity from major international organizations.

The trials of notorious (accused) War Criminals Charles Taylor, Radovan Karadzic and Duch proceeded.  Duch began the year at the Extraordinary Chambers in the Courts of Cambodia by begging for mercy and forgiveness, and ended his trial with a motion to dismiss charges.  Karadzic’s trial at the International Criminal Tribunal of the the former Yugoslavia has been delayed by problems with Karadzic’s participation and willingness to work with the defense.  Charles Taylor’s trial at the Special Court for Sierra Leone is expected to conclude in the next year with the verdict far from certain.

Other noteworthy 2009 events in War Crimes include the guilty verdict against former Peruvian President Alberto Fujimori for Crimes Against Humanity in Peruvian domestic court.  He was sentenced to 25 years in prison and is awaiting an appeals verdict this week.  Former Iraqi government officials Tariq Aziz and ‘Chemical’ Ali were found guilty of Crimes Against Humanity and sentenced in domestic courts in Iraq for atrocities committed in the early 1990s.  Accused Nazi Prison Guard John Dejamjuk, in his late 80s, was extradited from the U.S. to Germany for prosecution.  War Crimes continued and proliferated in the Democratic Republic of Congo, including employing rape as a weapon.  In September a massacre was perpetrated in Guinea against pro-democratic activists by government forces that raped large numbers of women and were suspected former militants from the conflict in Sierra Leone.  And Africa’s first democratically elected female Head of State, Liberia’s former President Ellen Sirleaf Johnson, was found complicit in War Crimes by Liberia’s Truth and Reconciliation Commission which recommended a 30 year ban from public service for the former President.

Surprise of the Year:  The acquittal of Protais Zigiranyirazo, better known as “Z” at the International Criminal Tribunal for Rwanda.  I am sure most of you finished the previous section screaming “What about the acquittal of ‘Z’?”  This was by far the most surprising development in War Crimes for the year 2009, even beating out the first ever issuance of a warrant for a sitting Head of State.  Z was the brother-in-law of former Rwandan President Juvenal Habyarimana.  By all accounts Z was in the ‘inner circle’, the top 4 Rwandan Hutu leaders, that commanded the 1994 genocide of nearly 1 million Rwandans.  He was convicted of his crimes at the tribunal and then late last month acquitted on a legal technicality striking a major blow to international justice and the international justice system.  The acquittal prompted the current Rwandan Justice Minister to declare the Tribunal “a place for legal play acting“. The case highlights the dichotomy of International Tribunals providing fair trials for the accused in highly emotionally and politically charged environments and providing justice for some of the most serious crimes imaginable.

Person of the Year:  International Criminal Court Chief Prosecutor Luis Moreno-Ocampo.  Ocampo has been a charismatic, outspoken voice for International Criminal Law at a time when the emerging field requires such strong stewardship and a visible leader.  Ocampo was the driving force behind prosecuting Bashir and launched official inquiries into international situations that previously were thought outside of jurisdiction for international criminal prosecution including Afghanistan, Kenya, Israel, Colombia and Georgia.  Ocampo has been brazen at times and has never demurred from challenging conventional perceptions, even established International Law, in the pursuit of international justice.

The Year Ahead:  The elusive Ratko Mladic will finally be caught and brought to justice.  I am aware that this is becoming a perennial prediction (which is what makes it easier to predict).  Charles Taylor will escape justice based on a weak prosecution case that rested on key witnesses that were predominantly mentally disturbed, confessed killers.  The ICC will expand its ’situations’ to include Kenya, prosecuting crimes that occurred during the post election violence there in 2007.  Duch will be found guilty.  Wildcard prediction:  warrants will be issued against Tamil and Sinhalese armed forces commanders in the Sri Lankan conflict and ‘Z’ will be brought to some form of justice - judicial or extrajudicial.

(Angola Press)

Kigali - The UN Security Council has given the tribunal for Rwanda’s genocide until 2012 to finish all its cases.
The court, set up to try those most responsible for the genocide, was originally due to close in 2008 but some key suspects remain at large.
Rwanda has long complained that the tribunal is too slow and expensive.
The initial stages of the cases are supposed to end by June 2010, according to the latest extension.
The remaining 18 months are for appeals.
In his speech to the UN Security Council, ICTR president Dennis Byron said: “The mandate of the tribunal will not be fulfilled until those accused have been apprehended.”
In particular, he pointed to Felicien Kabuga, accused of financing the 1994 killings, who is believed to be living in Kenya.
Some 800,000 ethnic Tutsis and moderate Hutus were killed in the 100-day massacre.

(AFP)

KIGALI — The acquittal by the UN court for Rwanda of a brother-in-law of former president Juvenal Habyarimana, an alleged planner of the Rwandan genocide, “shocked” Rwanda, the justice minister said Friday.

Tharcisse Karugarama was speaking on national radio following the announcement of the extension to December 31, 2012 of the International Criminal Tribunal for Rwanda (ICTR) mandate to judge appeals.

The decision was taken Wednesday by the UN Security Council.

The minister lashed out at the ICTR for last month acquitting Protais Zigiranyirazo, better known as Mr Z, a brother-in-law of the late president Habyarimana.

“This acquittal decision shocked the Rwandan nation and the Rwandan people and perhaps also Zigiranyirazo himself: he knows he’s not innocent,” Karugarama said.

“The court has become a place for legal play acting,” added the minister, reiterating Kigali’s affirmation that Zigiranyirazo was one of the main planners of the genocide carried out against the Tutsi in 1994.

In a letter dated December 7 the genocide survivors’ association Ibuka asked the Rwandan government “urgently to take the measures necessary to prevent the ICTR from continuing its policy of trivialising the genocide” through its rulings.

“The serial acquittals of former political and military figures who undeniably played a role in the planning and the carrying out of the genocide of the Tutsis and crimes against humanity speak volumes,” the group said.

As well as Zigiranyirazo, seven other Rwandan political figures have been acquitted by the ICTR, including former Transport Minister Andre Ntagerura and former Education Minister Andre Rwamakuba.

Ibuka says such acquittals “serve to encourage the phenomenon of negationism that is developing in the West through a network of lobby groups headed by ICTR defence lawyers, university professors and journalists”.

Copyright © 2009 AFP. All rights reserved.

The following is a statement from Dr. Michael Gressman of the German Federal Ministry of Justice to War Crimes on the arrest of the two FDLR leaders in late November:

German Federal Police arrested Dr Ignace M. and Straton M. upon orders of the Federal Public Prosecutor’s Office in Germany on Wednesday, 17 November 2009, on suspicion of committing crimes against humanity in the Democratic Republic of the Congo. The persons charged are under strong suspicion of having committed both crimes against humanity and war crimes as members of the foreign terrorist organization “Forces Démocratiques de Libération du Rwanda” (FDLR), thus rendering themselves liable to prosecution; Dr Ignace M. is also suspected of being ringleader of the terrorist organization.

According to investigations so far, the persons charged exerted, in their capacity as the most senior commanders of the FDLR, decisive influence on the conduct of the civil war in the provinces affected up until their arrest today. They could, therefore, have prevented the systematic commission by militiamen under their orders of acts of violence against the civilian population that is part of the organization’s strategy. This places them under strong suspicion of being responsible as military commanders for the crimes committed by the FDLR.

The investigations increased the body of evidence to such a degree that the Federal Public Prosecutor’s Office found itself in a position to affirm the strong suspicion of a criminal act necessary for the issue of an arrest warrant. The pretrial judge of the Federal Court of Justice concurred in this view and on 16 November issued a warrant for the arrest of the persons charged.The persons charged were brought before the pretrial judge of the Federal Court of Justice on 17 November. The pretrial judge of the FCJ read out both arrest warrants to the persons charged and ordered them to be remanded in custody pending trial. The Federal Criminal Police Office is charged with carrying out further investigations.

It appears that Germany intends to try Murwanashyaka and Musoni in German Federal Court for Crimes Against Humanity with War Crimes charges likely to follow.  Dr. Gressman indicated that he could not provide any further information because these are “pending criminal investigation proceedings”.

Two leaders of the Democratic Forces for the Liberation of Rwanda (FDLR), Ignace Murwanashyaka and his aide Straton Musoni, were arrested in Germany last Tuesday. While the arrests were praised by human rights groups and the international community, many questions still remain regarding the timing, motivation, jurisdiction and even the charges being brought against the suspected war criminals.

The FDLR is a Hutu militia group whose leadership is comprised largely of escaped Rwandan genocidaires and operates in the eastern Democratic Republic on the Congo. The FDLR began operations in the DRC in 1994 and continue to commit atrocities there to this day. Murwanashyaka and Musoni have lived in Germay for years and have directed FDLR operations in the DRC from there with impunity, until now. Germany had dismissed calls for their arrests in the past from the Rwandan government, the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC), Interpol and the U.N. Security Council.

Several factors could have played a role in Germany’s decision last week. Tensions between the Kabila government in the DRC and MONUC have flared recently. MONUC has been accused of both aiding the FDLR who they are charged with disarming and also participating in war crimes committed by DRC national forces. On top of that, Kabila’s legitimacy as the first democratically elected leader of the DRC in decades continues to suffer under the presence of the large foreign force in the east. This has led DRC officials to talk openly of a MONUC exit strategy and setting benchmarks for a troop draw down. Germany currently has no troops serving in the 20,000+ MONUC forces, but the arrests could help assuage criticism on Germany’s part and either precede a drawdown of UN troops or serve as consolation for an extended MONUC presence.

Another driving force could have been last month’s EU Council meeting where it was resolved that members would become fully compliant with two U.N.S.C. Resolutions imposing restrictive measures on fugitive leaders of the FDLR including “financial and travel sanctions”.

Lastly, the German Justice department recently changed heads with Sabine Leutheusser-Schnarrenberger, a Free Democrat, taking over from Brigitte Zypries, a Democratic Socialist, at the end of October. Leutheusser-Schnarrenberger served a previous term as the Federal Minister for Justice, from 1992-1996, which happened to coincide with the Rwandan genocide.

It is still not clear exactly what charges are being brought against Murwanashayaka and Musoni . It has been reported that they are being charged with terrorism, war crimes and crimes against humanity for crimes committed in the DRC. But there has been no word as to whether they will be tried under German, Congolese or International Law. Meanwhile, Rwanda is asking for jurisdiction to try them for crimes committed during the 1994 Genocide.

Radovan Karadzic stopped boycotting his prosecution for war crimes at The Hague this week adding legitimacy to the trial seen as “seen as key to … closure” for the survivors and victims’ families of the Balkans genocide of the 1990s.  Karadzic also asked this week for time to prepare his defense.  The U.K.’s Channel 4 released several videos this week dealing with the events in the Balkans including a 1993 interview with Karadzic.  You can watch them here. The New York Times calls it a preview of his upcoming defense.  His trial has been postponed until next March.  Below is a transcript of the Channel 4 interview:

Snow:  Now joining us from Belgrade is Dr. Radovan Karadzic the leader of the Bosnian Serbs who has been watching our report in Belgrade.  Dr. Karadzic, this is still more evidence that Serbs are raping Bosnian women.

Karadzic:  Well, as a matter of fact in this war there happened many terrible things on all three sides and committed by all three sides but it is out of question that it was part of any strategy and it is out of question that this was done by knowledge of army officers or civilian authorities.

Snow:  Dr. Karadzic let me stop you there.  There were two testaments there from men in uniform, Serbian men in uniform, who gave the names - the first names - of people who told them to rape these women.  Those are orders.

Karadzic:  Well we will have to make real investigation on that.  I know that some criminals are testifying in Muslim prisons against Serbs and that’s really something that is not true.  This is something that is framed, being staged by Muslim forces.  I know that there was some rapes on civilian side too but never with knowledge of army officers and we are investigating all of allegations.  You know that in the peace you have sexual derelicts and psychopaths who do rapes even in Great Britain - rape people and kill people.

Snow:  Dr Karadzic, this is so widespread.  It is detailed by the E.C.  It is detailed by Amnesty International.  We have detailed it.  I have a list here of 43 camps - places where women are being raped - places as widespread as Visegrad, Doboj, Kitaj Gorod, Sanski Most, Banja Luka, Teslic;  that is all over Bosnia that this is happening and you say ‘well, these are isolated civilian incidents, nobody’s doing this under orders, I’ll look into it’.  It’s not good enough, is it Dr. Karadzic?

Karadzic:  That’s out of question that those campuses exist at all.  We had some open refugee campuses but in prisons for war prisoners there was no civilians let alone women.  So 43 campuses, this is out of question.  All of our prisons are open for the entire media, so Channel 4 send, first send cameras in our prisons.

Snow:  But these women that we have spoken to were civilians.  We’ve seen them.  You’ve seen them on the tape.  They are ordinary Bosnian women.

Karadzic:  But they haven’t been in any prison, they have been in refugee campuses.

Snow:  Well, the differenc between camp or detention or whatever… there are people who stay in camps because they are frightened to go out, that’s the same in a sense as being in a prison.

Karadzic:  But they are not detained by force they are detained by events.  And there may be some abuses and there may be some cases that should be investigated and punished but this is out of question to say that this was a sort of system or sort of strategy.

Snow:  But you see the outgoing Secretary of State in the United States, Lawrence Eagleburger, who is going to stay on in the State Department for the next six weeks, at least, who speaks fluent Serbo-Croatian, he testifies that things are so bad that you personally are going to have to answer as a war criminal at the end of all this.

Karadzic:  I would like you to bring some Serbian woman that have suffered in Muslim prisons and even in whorehouses for Muslim soldiers.  And this is quite unbalanced approach

Snow:  We will of course look into that Dr. Karadzic, there’s no question and Amnesty have also mentioned that that is true.  But what they say is the vast weight of evidence is that the main proportion of victims are Muslim women at the hands of your people.

Karadzic:  No, that’s not the truth and this is not investigated and this is not compared.  And how one can say that since there was no investigation there is any comparison?

Snow:  And your position then on the view that Lawrence Eagleburger testified to, that you should be included on a list of those who should be examined for war crimes at the end of all this?

Karadzic:  This is quite private opinion of Mr. Eagleburger, who also should be trialed for what’s happened to Yugoslavia because he is responsible for what’s happened to Yugoslavia.  But all of my activities (are) quite public and if you knew our generals how they are very strong about morality you would never say that it was with knowledge of army officers or civilian authorities.

The following is an interview with Professor M. Cherif Bassiouni.  Professor Bassiouni has held many positions with the United Nations including Chairman of the Drafting Committee for the Establishment of an International Criminal Court, and Chairman of the Security Council’s Commission to Investigate Violations of International Humanitarian Law in the Former Yugoslavia.  He is currently a Distinguished Research Professor of Law and President of the International Human Rights Law Institute at DePaul University College of Law.  The interview was conducted at his office in Chicago.

In an article in Opinio Juris recently Mark Osiel discussed the context requirements of I.C.C. crimes.  War Crimes have to be committed within the nexus of an armed conflict; Crimes Against Humanity have to be widespread and systematic and reflecting of a State or organizational policy; Aggression must me linked to State policy;  for Genocide as Osiel put it, “the contextual element would be the defendant’s knowledge of, and/or contribution to similar acts of genocide in the relevant political environment.” - What is the purpose of the context requirement?

What is meant by the text in the Rome Statute is the delineation of substantive and jurisdictional criteria for the crimes committed.  For instance a traffic violation on a highway may fall under a local jurisdiction but at the same time may also fall under State level jurisdiction.  A crime may fit the requirements of a lesser State crime, but once it fulfills the requirements of a Rome Statute law it also falls under international jurisdiction if the relevant States are signatories and are unable or unwilling to hold the perpetrators accountable.  Also, there is no War Crime if it is only a lone killer releasing poison gas on the subway with only the motivation to kill; it has to be a part of a political conflict, otherwise there are generally other appropriate state level mechanisms to prosecute the crime.  This is not to say that the philosophical discussion engaged by Mr. Osiel is of no value – it  is useful to examine our foundational motivations in the prosecution of war crimes.  However, it has no real bearing to the purpose the contextual requirements serve in the Rome Statute.

Recently ICC Prosecutor Luis Moreno Ocampo announced preliminary investigations into situations into countries where the context is perhaps pushing the boundary of what the Court has previously considered.  Let me ask you your opinion on a couple of these situations.

Afghanistan and Colombia - You have a unique perspective here as former U.N. Human Rights Commission’s independent expert on human rights in Afghanistan - Are civilian Afghan casualties caused by the U.S. on a grave enough scale to be considered by the I.C.C.?  And are FARC activities systematic and widespread enough to qualify as Crimes Against Humanity?

Well, there are two things I would point out.  The first is that I don’t consider the scale of the offense to be an issue.  If an American commander called for the bombing of a single Afghan wedding party we need to find out if that was done based on bad intelligence, which would be terrible but not a War Crime, or if it was a result of purposive action which would make it a War Crime.  Then again even if it is based on bad intelligence but it happens over and over again, then it becomes systematic and would then possibly fall under the definition of War Crimes.

The second is that it is also important to acknowledge that there is no legal justification to expand the jurisdiction of the ICC for Crimes Against Humanity to cases that don’t fit the definitions in the Rome Statute.  As such, many investigations currently considered by the ICC Prosecution would not fall under the jurisdiction set out by the Rome Statute.  So, the ICC has no technical jurisdiction over the F.A.R.C.’s crimes in Colombia.  That is not to say that they haven’t committed crimes that are worthy of prosecution before the ICC from a gravity standpoint.  It is just to say that the current language of the law does not allow for it.  Now, we can twist the language and pretend that it does, but that would be disingenuous.  Some people point to the phrase concerning Crimes Against Humanity: any “attack directed against any civilian population means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack” to mean that organizational policy could subsume an organization other than a State.  As the person that suggested that text for the treaty I can say that I had meant it only in the context of sub-national organizations that were under government control but had a degree of autonomy.  The text of the Rome Statute simply does not support the notion that the scope of War Crimes can be expanded.  However, that is a gap in International Law that should be addressed.

How can it be addressed?

The Rome Statute could be amended, which is almost impossible (requiring 7/8 of signatories’ approval), or prosecutors could skirt the actual definition of ICC crimes as has been increasingly the case.  I will not denigrate this practice; many terrible offenses that probably should be considered War Crimes are committed outside of the purview of the ICC and if the only recourse is to bend the definition of War Crimes then we should look at the situation very carefully before we admit or dismiss such a case before the ICC.

You recently discussed a dichotomy in legitimacy outcomes for State and non-State actors when they violate International Humanitarian Law in internal conflicts.  The dichotomy is that as a State actor that violates IHL becomes less legitimate in the eyes of the public, non-State IHL violators’ - so-called terrorists - legitimacy is (perceived to have) increased by engaging in such acts.  This dichotomy is an important reason why weaker, non-State actors engage in ‘asymmetrical’ warfare.  To force them to comply with IHL would condemn them to defeat at the hands of more powerful State actors.   At some point these IHL violations become War Crimes and Crimes Against Humanity.  How do we reconcile the humanitarian values behind prosecuting IHL violations, War Crimes, and Crimes Against Humanity;  and the effective condemnation of some (this is not to say the majority or even many) marginalized groups that have legitimate political grievances and that are oppressed and unable to redress their grievances through the political process and cannot attain a successful conventional military outcome?

In the current environment we can’t.  In the future when we consider issues like this it will be necessary to consider incentives for non-State actors to comply with humanitarian regulations.  If we don’t then we are indeed further marginalizing groups that don’t have the resources to fight their own marginalization.  Even though Crimes Against Humanity are set up to prevent and prosecute perpetrators of severe injustice, they also functionally serve the interests of the strong over the weak.  It will take a concerted effort to work toward a more equitable system of law.

Charles Taylor took the stand again this week at the Special Court for Sierra Leone and decried a vast conspiracy against him calling witness testimony against him “lies” and accusing the prosecution of racism.  Taylor made these impassioned assertions even as hundreds of civilian victims of Liberia’s civil war were buried just this week, fifteen years after their slaughter.  In successive days, Taylor denied commanding the invasion of Guinea, denied commanding the invasion Sierra Leone, denied dealing in diamonds for arms, and denied ordering an attack on Freetown.  He also dismissed the most heinous charges against him; cannibalism and burying pregnant women alive, as racism:

“All the murderous regimes of Europe throughout World War II coming on, nobody is eating human beings  and burying pregnant women and being sadistic as this as an African. You go to Liberia and bring four uneducated people that never even went to the ninth grade, Moses Blah never went to the ninth grade, Vamunyan Sherif  hardly went to school, Abu Keita hardly, and this other one that never entered a class room, never, cannot read, cannot write and you bring him here, and you have a president eating people and burying pregnant women, this is beyond racism, it shows bigotry, and that’s what this case is all about.”

As for ‘Zigzag’ Marzah, the witness who testified to having engaged in cannibalism at Taylor’s orders and to have seen pregnant women buried alive at Charles Taylor’s residence (and also participating in eviscerating their stomachs), Taylor unleashed a slew of insults in a vain attempt to discredit what has been thought to have been the most damning testimony against Taylor yet:

“I swear to God… This man is sick. It is not true… This boy is just one of the liars they brought for this case and he has really messed it up,” Taylor said.

Yet the Liberian Truth and Reconciliation Commission which released its final report this summer found ample evidence of dozens of mass slaughters and cannibalism and found Taylor to be central to the majority of war crimes committed in Liberia during the 1990s.  The more tenuous link, which is what the prosecution is trying to establish, is Taylor’s control over forces in Sierra Leone.  Though there are several witnesses that have testified to Taylor’s role and horrific amounts of evidence of violence, including tens of thousands of Sierra Leone’s infamous forced amuptees, the prosecution has brought a dearth of  hard evidence in establishing this connection.  This, in addition to the aforementioned Truth and Reconciliation Commision’s finding that current President Ellen Johnson-Sirleaf had played a major role in supporting Taylor, has led to a swelling of Liberian Taylor support and increased denunciation of his trial before the Special Court at The Hague as naked imperialism.  These supporters however seem to lack an alternative theory of explanation for the decade of horror that occurred in Liberia and Sierra Leone.  Some even question these Taylor supporters’ motives.  As one commenter put it:

“Yes, in the opinion of those who see looting as a livelihood, Taylor should be released.  Such would enable these criminals to again plauge sweet mama Liberia in… anarchy.”

Taylor’s trial went into recess this week until October 26th.