War Crimes

JNA General Pavle Strugar was sentenced to 7 and 1/2 years in prison for his role in the shelling of Dubrovnik, Croatia, during the conflict accompanying the breakup of Yugoslavia.

Dubrovnik, known as the “Pearl of the Adriatic” for its historic and beautiful old city, was subjected to a 7-month siege during the war. 2/3 of the buildings in the old city were damaged, and the ICTY alleges that the Serbian and Montenegrin high commands intended to conquer Dubrovnik and make it part of Montenegro.

In what can only be seen as a victory for the Bush administration, Judge James Robertson for the U.S. District Court in Washington denied Thursday a motion to delay the trial of the former driver of Osama bin Laden, Salim Hamdan.

Hamdan, a 37-year old Yemeni national, will be the first “enemy combatant” in the so-called war on terror waged by the United States to face the military tribunal established at the naval detention facility at Guantanamo Bay, Cuba.

Hamdan is accused of providing material support to bin Laden and al-Qaida. He is also alleged to have received weapons training in Afghanistan and transported “one or more SA-7 surface-to-air missiles” to be used against American forces.

Though he faces charges war crimes as defined by the U.S. Military Code of Uniform Justice for conspiracy to commit terrorist acts against the United States and for providing material support to a foreign terrorist organization, those crimes amount to aiding and abetting and are not considered war crimes under the Geneva Conventions.

Lawyers for Hamdan, including Georgetown law professor Neal Katyal, called on the courts to suspend the trial following the U.S. Supreme Court decision on Boumdiene v. Bush and al-Odah v. Bush which held the Guantanamo detainees have a right to petition their detention in civilian courts.

“We hold these petitioners do have the habeas corpus privilege,” Justice Anthony Kennedy said, writing for the majority.

The Court, issuing its opinion in Boumediene, cautioned it was not, however, ruling the detainees were unjustly detained. That, Kennedy said, was a matter left to District Court judges.

So it was with Robertson, who said Thursday following a lengthy discourse, “The motion for injunction is denied.”

Katyal and his defense team had moved for the injunction saying the military tribunal was vague in its ever-evolving proceedings and it was an insurmountable challenge to provide his client an adequate defense in such a fluid system. Katyal further noted the entire tribunal system was off base because previous Supreme Court rulings had indicated there was “a concrete track record that this is going down the wrong path … going off the rails.”

Robertson, however, backed away from the issue, telling Katyal it was not his position to define the rules and any challenges must be made after the trial, thus establishing Hamdan as the first real test case for the military tribunal system at Guantanamo.

The trial for Hamdan begins Monday.

NPR/AFP/SCOTUSblog

Canadian lawyers acting on behalf of a Palestinian man sued two Montreal companies and their director for violation of international laws pertaining to the transfer of civilian populations into Israeli settlements in Palestinian territories.

Court documents filed in the Superior Court of the District of Montreal claim two firms acting on behalf of the Israeli government, Green Park International and Green Mount International, “on their own behalf and as de facto agents of the State of Israel, are … aiding, abetting and assisting and conspiring with the State of Israel in carrying out an illegal purpose,” The Canadian Jewish News reported.

Toronto lawyer Mark Arnold said the companies, acting as representatives of the Israeli government, violated Geneva Convention articles that prohibit the transfer of foreign civilians in occupied territories.  Arnold says that since Canadian law includes the Geneva Conventions in its domestic laws, Green Park and Green Mount are liable for the violations.

Analysts claim, however, the case faces legal hurdles from the fact a Canadian citizen cannot sue a foreign government or its affiliates. Also of consideration is the notion Israeli citizens residing in settlements in Palestine do not directly affect Canada.

Arnold disagrees, saying the firms are Canadian and subject to domestic laws pertaining to the Geneva Conventions.

“In this case, the wrongdoer is Canadian, subject to (Canadian law),” he said.

We noted Friday that reports were circulating that ICC Prosecutor Luis Moreno-Ocampo would ask the Court to issue an arrest warrant for Sudanese President Omar Hassan Al-Bashir on charges of genocide and crimes against humanity. CNN reports that Moreno-Ocampo sought an indictment this morning. In it, the Prosecutor’s Office alleges that the Sudanese military coordinated with janjaweed militias, targeting villages occupied by minority groups, killing civilians, and providing air support.

The indictment will be a major test for the ICC. Sudan has not yet turned over the two suspects already indicted for crimes in Darfur, and one continues to serve in Al-Bashir’s cabinet. Moreover, Al-Bashir is the first sitting President charged by the ICC, and Sudan is a non-party to the Rome Treaty establishing the Court. Nonetheless, at the very least an indictment would represent an additional diplomatic tool to bring the genocide to an end.

The Washington Post reports that ICC Chief Prosecutor Luis Moreno-Ocampo will charge the president of Sudan, Colonel Omar Hassan Al-Bashir, with genocide and crimes against humanity. Appropriately, the announcement comes on the anniversary of the Srebrenica massacre, which gave rise to an exceedingly rare holding that genocide had actually been committed.

A conviction on genocide charges may be challenging, as the Cassesse Commission report concluded years ago that crimes against humanity were taking place in Darfur, but genocide was not since the evidence did not - in the Commission’s view - show an attempt to destroy the entire Darfuri population in whole or in substantial part, as required by the Genocide Convention. Moreover, several UN officials quoted in the article express concern that the indictment will cause Al-Bashir to dig in his heels and resist pressures to give up power.

Nonetheless, Sudan’s reluctance to cooperate with international investigations is well-recorded, and any additional amount of pressure which could be placed on the Sudanese government will doubtless be welcomed by the Darfuris and the human rights community.

Warning: This post contains offensive language.

This post was originally published July 11, 2007.
Today marks the 12^th 13th anniversary of the massacre in Srebernica.  In July 1995, in the United Nations mandated ‘safe area’ of Srebrenica, Serbian forces summarily executed some 8,000 Bosnian men.  The forces of the Army of Republika Srpska, led by General Ratko Mladic (still at large in Bosnia for war crimes), “stripped all the male Muslim prisoners, military and civilian, elderly and young, of their personal belongings and identification, and deliberately and methodically killed them solely on the basis of their identity.”, according to a press release by the President of the International Criminal Tribunal for the Former Yugoslavia (ICTY), Judge Theodor Meron.

The majority of the atrocities were committed by the paramilitary force, the Scorpions.  During the trial of Slobodan Medic, the Scorpions unit commander, video tape of various incidents surfaced.  These videos are part of much larger video diary of the Bosnian war.  In one incident, 6 men are shown being taken from the back of a military vehicle and led to a field.  The men are then forced to march single file to meet machine gun fire – one man at a time - by the Scorpions.  In the video, the soldiers are making comments to the camera - “Did you get that?  Did you film me shooting that mother fucker?”  Only 4 of the captured men were initially murdered and the remaining two were forced to drag the bodies to another area.  According to testimony, the soldiers were mocking the scene to make it appear the prisoners were killed in combat.  The two remaining men are then killed in an outbuilding.  During the video, a soldier is shown emptying his entire magazine into the head of one of the prisoners, protesting “I have a few more shells left!”

In conflict characterized by ethnic rivalries, just and unjust may become blurred.  Media portrayal in the affected countries during the Bosnian war inspired many of the men to embrace conscription and few were refused, especially by the Scorpions.  In 1995, the United Nations forces, UNPROFOR, were overwhelmed by Serbian forces after establishing the safe zone in Srebrenica.  Dutch UN forces had attempted to turn back enclosing forces by firing warning shots, but never directly engaged the attacking brigades.  UN peacekeepers had made repeated requests to NATO for air support over the area, but the mission was called off due to poor visibility.  Further sorties were aborted after Serbian forces threatened to kill captured Dutch personnel and Serbian forces effectively captured the town of Srebrenica on July 11^th, 1995.  After initial indiscriminate killings of woman and children, many of the men were separated from the rest of the community according to age.  Military prisoners were detained based on perceived age of conscription; mostly men deemed old enough for combat.   When the situation was complete, over 8,000 civilians were massacred in the worst episode of ethnic cleansing since the extermination of the Jews in World War II.

A Yemeni national which the U.S. government says ran an al-Qaida terrorist training camp where two of the Sept. 11 hijackers trained says the prosecution should let him view classified evidence, Reuters reported.

Walid bin Attash said Thursday he wants access to classifed evidence because he says it would be safer in his hands than in the hands of the FBI or CIA should he be executed for his crimes.

Bin Attash addressed a judge at the military tribunal at Guantanamo Bay , Cuba, Marine Col. Ralph Kohlmann, questioning the validity of the trial procedures.

“As a judge appointed by the American government … do you think this is a just and fair trial?” he asked.

Kohlmann had requested the hearings to decide whether or not coerced testimony or underrepresented clients could be sentenced to death.

The judge did not answer the query, saying it was not within his authority to offer an opion on the matter. He reminded bin Attash that if he continued to act as his own attorney, however, he would not be allowed access to classified or otherwise sensitive material.

Bin Attash responded politely, saying, “If I am going to receive the death sentence this evidence will go with me. It will be better protected than in the hands of the FBI or the CIA.”

Bin Attash along with Ramzi bin al-Shibh and several other alleged al-Qaida members are held on suspicion they played a role in the Sept. 11 attacks on the United States.  Each men faces 2,973 counts of murder for each person killed in the attacks.

A hearing for bin al-Shibh was postponed while his mental capacity to face trial was determined.

THE CASE OF Huzaifa Parhat provides the clearest, most compelling evidence yet that the process used by the Bush administration to justify holding detainees at Guantanamo Bay is deeply and irreversibly flawed and must be discarded.

Mr. Parhat is an ethnic Uighur who fled China in 2001 because of the abuses against Uighurs in that country. He arrived in a camp in Afghanistan known as a refuge for Uighurs who opposed the Chinese government. The camp was destroyed by U.S. airstrikes in late 2001, and Mr. Parhat and fellow Uighurs fled to Pakistan for a short while before being turned over to the United States by Pakistani officials. He was sent to the U.S. Naval Base in Guantanamo Bay, Cuba, in 2002.

According to court records, Mr. Parhat is not a member of al-Qaeda or the Taliban. There is no record of his involvement in hostilities against the United States or its allies. In 2003, a military officer who reviewed Mr. Parhat’s detention recommended his release. Even the members of a 2004 Combatant Status Review Tribunal that classified Mr. Parhat as an enemy combatant concluded that he was “an attractive candidate for release.” Yet Mr. Parhat languishes in Guantanamo to this day — six years after his capture, writes The Washington Post in an editorial Monday

The ex-vice-president of the Democratic Republic of Congo has been extradited to The Hague to face trial for war crimes and crimes against humanity.

Jean-Pierre Bemba, who fled DR Congo last year, was detained in Belgium in May. He will face trial at the International Criminal Court (ICC).

Mr Bemba is accused over atrocities allegedly committed by his forces in the Central African Republic in 2002, the BBC reports.