I.C.C. Prosecutor Luis Moreno Ocampo argued this week that releasing former Democratic Republic of Congo Vice-President Jean Pierre Bemba before his trial at the Hague would be an “Error in Law“.  In fact, Ocampo argued, the only significant change that had occurred since the last decision to keep Bemba in detention and now was the issuance of the decision confirming the charges against Bemba by the court which in any instance should increase his risk of flight.  Bemba was granted interim release on August 14th by the I.C.C. but has yet to find a host country that will accept him

Jean Pierre Bemba is being tried for War Crimes and Crimes Against Humanity at the I.C.C. for alleged offenses occurring between 2002-2003 in the Central African Republic.  At the time, Bemba was in exile from his native D.R. Congo and commanded a force of ‘Banyamulenge’, or Congolese ethnic Tutsis, in a fight against rebel forces in C.A.R.  Bemba’s forces in C.A.R. are witnessed as to committing widespread rape and murder against the northern C.A.R. population.

According to Amnesty International:

“Girls as young as eight years old and women as old as 60 were raped, according to human rights and humanitarian organizations that dealt with rape victims in late 2002 and early 2003. Many were attacked in their homes, while fleeing the combat zones or at roadblocks. They were raped in front of their husbands, children or parents. Some women and children died as a result. Some relatives, including husbands, who attempted to prevent the attacks are reported to have been threatened. assaulted or killed. In some cases children were forced to have sex with their mothers, sisters or other female relatives.”

Bemba returned to the D.R.C. after he was unsuccessful defending his ally Bozize in C.A.R. against rebel forces.  While back in D.R.C. his forces committed atrocities even while he became one of four Vice Presidents in a power-sharing government.  The M.L.C., or “Mouvement de Libération du Congo”, of which Bemba was Commander in Chief, apart from the signature mass killings and using rape as a weapon, went a step further according to local accounts and allegedly committed acts of cannibalism and forced cannibalism in the Ituri forest in the D.R.C.  Bemba has vehemently denied all charges against him despite mounting evidence.

One interesting point of law in the Bemba case will be the decision on Crimes Against Humanity.  The I.C.C. ruled that there was sufficient evidence to try Bemba on this charge but that:

The Prosecutor must demonstrate that the attack was such that it cannot be characterised as having been directed against only a limited and randomly selected group of individuals.”  However, the Prosecutor need not prove that the entire population of the geographical area, when the attack is taking place, was being targeted.

So if it was a limited group of individuals, OR a randomly selected group of individuals, it would not be sufficient to constitute Crimes Against Humanity.  It is hard to imagine a scenario where a randomly selected group of individuals were targeted in a population and it not causing a level of fear and terror tantamount to that of targeting every individual member at once.  It could be argued that indeed it would cause more fear and terror.  Alas, Bemba’s defense is that his forces were going door to door outing suspected rebels.  Fortunately this defense will only go as far as the first handful of accounts of innocent families raped and murdered in their own homes and courtyards.

Bemba’s trial is expected to commence in early to mid 2010.

(4)  Holder ‘Appoints’ Special Prosecutor to Review CIA Interrogations

US Attorney General Eric Holder announced that he is expanding the mandate of Special Counsel John Durham to include a ‘preliminary review’ (not yet an investigation) into the legality of CIA interrogations of certain detainees.

Durham was originally appointed in 2008 by then-Attorney General Michael Mukasey to investigate the destruction of CIA videotapes of detainee interrogations.

The decision to begin a preliminary review was based on his examination of two items.  First a report, produced by his department’s Office of Professional Responsibility, regarding the Office of Legal Counsel’s ‘enhanced interrogation technique’ memoranda.  The New York Times reports that this document recommends “reversing the Bush administration and reopening nearly a dozen prisoner-abuse cases.”

The second is the 2004 CIA Inspector General’s report.

(5)  CIA Releases Internal Report

The CIA has now (re)-released this internal CIA report on the agency’s secret detention and interrogation program in response to a request by the ACLU in its ongoing Freedom of Information Act lawsuit.  The document is a detailed report regarding then-CIA Inspector General John L. Helgerson’s May 2004 review of the agency’s program.

The 159 page report was already released by the Bush Administration in 2008, but with all but a few paragraphs blacked out, it was not particularly informative.  The current version, while less redacted, is nonetheless still heavily censored.

The report describes unauthorized practices subject to investigation such as a man being “lifted off the floor by his arms while his arms were bound behind his back with a belt,” another strangled until he passed out and then shaken awake - the process being repeated three times, and another being beaten to death with a large metal flashlight.

It also re-iterates the arguments for authorized ‘enhanced interrogation’ practices, such as waterboarding.

The document’s censor-lite release has been delayed several times on the basis of the possible chilling effect on intelligence sharing, with former Vice President Dick Cheney vociferously defending the authorized practices as effective for information gathering purposes.

It was widely believed that the report would hit at the lack of effectiveness of the authorized techniques.  At first blush, some might argue that it does the opposite by describing certain uncovered plots - such as attacks against West Coast buildings, Heathrow airport and trains.

But it also points out that no evidence existed that any of these plots were “imminent” - nor does it provide information as to whether any were supported by any other evidence at all.  Moreover, “[t]he effectiveness of particular interrogation techniques in eliciting information that might not otherwise have been obtained cannot be so easily measured.”

A particularly good breakdown of the implications of the memo can be found on TIME magazine’s blog.

(6)  Leon Panetta Defends CIA’s actions

CIA Director Leon Panetta, in a statement issued to CIA employees, defends the CIA’s practices inasmuch as they were within the legal guidance provided upon request.  He emphasizes that those practices that fell outside the legal guidance were referred to the Justice Department for investigation, or for internal disciplinary action.

This situation has raised an interesting, much debated question - that is, if the CIA asked for legal guidance but received a bad interpretation, should those acting in good faith under the incorrect interpretation be punished?

While some argue that the tenet ‘ignorance of the law is no excuse‘ (picture for example, a memorandum insulating Bernie Madoff from prosecution because it told him Ponzi schemes were perfectly legal) should mean prosecuting everyone involved from the interrogators to the top officials, the White House has announced, and Holder has reiterated that no one acting in “good faith and within the scope of legal guidance” will be prosecuted.

As for ‘effectiveness’ of the methods, while Panetta states that he doesn’t have any interest in taking part in the debate, he then continues that “[t]he CIA obtained intelligence from high-value detainees when inside information on al-Qa’ida was in short supply.  Whether this was the only way to obtain that information will remain a legitimate area of dispute, with Americans holding a range of views on the methods used.”

But while Americans may hold a range of views on many issues, the proper execution of the law is not generally a matter of public opinion.

From enhanced interrogation to rendition, to the roles of the CIA and the FBI in relation to terrorism, decisions and revelations were made in the last 24 hours that will have a lasting impact on the way the US intelligence community, justice system and government officials interact with each other and the world with respect to suspected terrorist detainees.

The Justice Department, the CIA, the Defense Department and the White House each acted in response to various threads of the continuing debate over the government’s post-9/11 actions, including the CIA’s interrogation techniques and the transfer of detainees to countries where torture takes place.

Recently overshadowed domestically by the antics surrounding the national health care debate, it is hard to overemphasize the importance of these issues to the US playing a credible role both as a model for democracy and in the fight against impunity for other nations.

And although many critics would argue that either too much or too little is being done about past alleged abuses, it should not be forgotten that the ability to have such a debate and the attendant possibility of producing credible results - without threat of violent reprisals - are in many ways on their own a testament to an enviable standard of governance.

(1)  President Obama Creates ‘Interrogation Panel’

First, White House Press Secretary Bill Burton announced the creation of a new ‘interrogation unit’ to be supervised by the National Security Council and situated at FBI headquarters in Washington DC.

Although an FBI official will lead the ‘High Value Detainee Interrogation Group’, that does not mean the CIA is out of the interrogation business, the White House argues, as the unit will include many different elements of the government’s intelligence apparatus.

Nonetheless, the panel, based on a recommendation of the administration’s interrogation task force, represents a significant policy shift towards increased transparency, oversight and use of ‘best practices’ in the heretofore murky world of intelligence gathering.

Whether this can possibly be borne out in practice remains to be seen.

(2) Continued Rendition of Terror Suspects

Similarly, the White House now promises mechanisms to ensure that suspects are not sent to countries where torture is taking place.

The State Department will be responsible for assessing the viability of a country’s assertion that terrorist suspects sent to that country will not be tortured; State, Defense and Homeland Security will also review the status of these assertions.

There are as of yet no specifics as to transparency and oversight of these mechanisms, however, leading some to question if this is in reality any different than previous rendition policy.

(3)  Detainees Identities Shared with Red Cross

Again, in a move towards more accountability, the Department of Defense has agreed to share the names of detainees held by the military to the International Committee of the Red Cross (ICRC), as required by the Geneva Conventions - although the ICRC is still not allowed access to the camps where the detainees are being held.

My Lai Memorial                 Son My, Vietnam

The only US Army Officer convicted for involvement in the 1968 “My Lai massacre” has publicly apologized for his role in the Vietnam War-era killings.

William L. Calley, now 66, was convicted in 1971 by court martial for the killing of 22 civilians in My Lai and My Khe hamlets of Son My village, during which approximately 400 unarmed men, women and children were killed.

Calley’s Battalion had been ordered into Son My village to find Viet Cong soldiers that US Army intelligence had reported were hiding there following their retreat after the January 1968 Tet Offensive.

No Viet Cong soldiers or weapons were found and the Americans never came under fire; but women, children and the elderly were nonetheless killed, houses were burned, and livestock mutilated.  The entire episode was photographed by Ronald L. Haeberle, an Army photographer assigned to Charlie Company in My Lai (Bravo Company in My Khe committed similar acts) to record what the Army had thought would be an important battle.

Instead, the graphic images of woman and infants being shot and US soldiers holding lighters to homes - released to LIFE magazine after journalist Seymour Hersh reported on the massacre a year later - shocked the American public and are often cited as responsible for turning opinion against the war.

A handful of soldiers notably refused to take part - for example pilot Hugh Thompson landed his helicopter between fleeing villagers and the American soldiers, telling his crew to open fire at the soldiers if they advanced on the civilians.

But while most soldiers present participated in the crimes only 26 were eventually charged - and only Lt. Calley was brought to trial and found guilty.  He served, under house arrest, three and a half years of a life sentence.

“There is not a day that goes by that I do not feel remorse for what happened that day in My Lai,” Calley has admitted to a small public gathering, “I feel remorse for the Vietnamese who were killed, for their families, for the American soldiers involved and their families. I am very sorry.”

The United States should not join the International Criminal Court (ICC), as it “lacks prudent safeguards against political manipulation, possesses sweeping authority without accountability … and violates national sovereignty” says the Heritage Foundation, a conservative public policy research institute.

The ICC was officially established in 2002 as a forum to prosecute serious international crimes–war crimes, crimes against humanity, and genocide.

The US is not a member of the ICC, as while President Clinton originally signed the Rome Statute (the ICC’s underlying treaty) in 2000, it was never ratified by Congress and was then ‘unsigned’ by President Bush in 2002.

Following a recent pronouncement by US Secretary of State Hillary Rodham Clinton that it is a “great regret” the US is not a member of the ICC, those against US involvement have taken the opportunity to explain their position, and to urge the Obama administration against joining the court.

Specifically, the Heritage Foundation quotes former War Crimes Ambassador David J Scheffer, chief US negotiator at the Rome Conference, as to why the US in 1998 voted against the Rome Statute - that it “provides a recipe for politicization of the court.” Following this 1998 explanation, Scheffer has argued for qualified US involvement in the court, the US having received certain relevant concessions.

The Heritage Foundation cites problems with checks and balances; with ICC judges being the ultimate arbiter of whether a state party has sufficiently prosecuted alleged criminal acts so as to preclude ICC jurisdiction (complementarity); with US citizens being subject to prosecution before the court; with the court’s being “slow to act”; with its lack of measurable deterrent effect; and with its ability to “investigate and prosecute crimes only after the fact.”

Aside from this last point - which begs the question as to how a court could possibly be expected to investigate and prosecute crimes before they occur - the report is an extremely good summary of the position of the US policy makers that have historically opposed the court.

From the stated intention to uphold the Vienna Convention to the signing of bilateral ‘Article 98 Agreements’ (after the Article of the Rome Statute that allows such arrangements) with countries who agree to not turn US citizens over to the ICC in exchange for continuation of certain funds, it outlines the peculiarities of the intersection of US and international law, and alludes to the public opinion toward international justice that have thus far kept the country from participating at the Hague.

The International Criminal Tribunal for Rwanda suffered a major loss this past week with the untimely death of prosecutor Shyamlal Rajapaksa. His body was found in his Arusha home in Tanzania where the international tribunal is located. Mystery surrounds the forty-two year old’s death with explanations proffered from drug overdose to murder. What has been lost in the coverage of his death has been his accomplishment in life.

Shyamlal Rajapaksa was the son of the former Sri Lankan Minister for Health, George Rajapaksa, brother to current Sri Lankan MP, Nirupama Rajapaksa, and nephew to current Sri Lankan President, Mahinda Rajapaksa. He accepted appointment to the International Criminal Tribunal of Rwanda in spite of a promising political career in his home country of Sri Lanka. According to Sri Lanka’s High Commissioner to Kenya, Rajapaksa had recently been promoted to Chief Prosecuter of the International Criminal Tribunal of Rwanda, effective at the end of August.

Rajapaksa was educated in law in the United Kingdom where he attained an LL.B. and LL.M. After that he worked in the Sri Lankan Attorney General’s office before appointment to the International Criminal Tribunal for Rwanda. His surviving wife, Prashanthi Rajapaksa, is currently a prosecutor before the International Criminal Tribunal for Yugoslavia at The Hague.

Rajapaksa served as co-prosecutor in the “Government II” trial involving four former Rwandan Cabinet Ministers and accused war criminals. The case against them began in 2003 and closing arguments were entered in December of last year. Judgment is expected in mid-2010.

The four ex-Ministers include former Minister of Health, Casimir Bizimungu and former Liberal Party leader and ex-Minister of Trade, Justin Mugenzi. Bizimungu is alleged to have permitted the murder of Tutsi hospital patients, who were already casualties of the ethnically motivated attacks, and of Tutsi hospital staff during the 1994 Genocide. Mugenzi was an outspoken advocate of the Tutsi mass killings, often taking incitement of violence to the air waves.  He was also known for making special visits across Rwanda during the genocide congratulating murderous mobs.

The four accused have already been acquitted of some of the charges against them  on technical grounds. But the powerful testimony of hundreds of witnesses, and the touring of massacre sites in Rwanda (including hospitals under Bizimungu’s charge) should assure their conviction for very serious war crimes.

Thanks in no small part to Shyamlal Rajapaksa.

Rest in peace.

The International Criminal Tribunal for Rwanda (ICTR) must prosecute those officers of the Rwandan Patriotic Front (RPF) allegedly responsible for war crimes taking place during the 1994 genocide, says Human Rights Watch (HRW).

The advocacy organization argues in a series of letters that the Office of the Prosecutor (OTP) has enough evidence to prosecute senior RPF members responsible for the Kabgayi killings, where 13 clergy members and 2 other civilians were killed by RPF soldiers.  HRW attests that instead the OTP referred the cases to local Rwandan officials, where only low-level soldiers were prosecuted when there was “evidence suggesting a planned military operation ordered by more senior level commanders.”

HRW asserts that if the Rwandan government will not pursue these leaders, the ICTR should.

Thus far all trials before the ICTR have been of Hutu government, militia and business leaders – with regard to acts performed in furtherance of the 1994 genocide that killed over 800,000 Tutsis and moderate Hutus.

The mass violence was sparked when, in April 1994, Hutu President Habyarimana’s plane was shot down.  No one has yet been held responsible for the assassination.

But Hutu leaders blamed the incident on the RPF, a militia composed of Tutsis exiled in Uganda, who had for years been fighting with Rwanda’s Hutu-led government.  The RPF and its leaders, including now-President Paul Kagame blamed the incident on Hutu Power extremists who needed a scapegoat in order to begin the genocide.

In any case, soon after the killings of Tutsis and moderate Hutus began, the Tutsi-led RPF rebels launched a full conventional war against Hutu government forces and eventually brought an end to the genocide by taking Kigali in July 1994.

It is during this military action, in which the UN estimates 25,000 to 45,000 civilians were killed, that Human Rights Watch alleges unresolved RPF war crimes occurred.  However, since many former RPF leaders are now in government, HRW argues that domestic Rwandan trials are not being fairly carried out.

And thus it states, whether or not to bring an indictment before the ICTR is not simply a choice between international justice and local justice, but is rather a choice between “international justice and impunity”.

A few facts about the conflict in the Democratic Republic of the Congo (DRC): Numerous individual conflicts  since 1996, involving up to 7 nations and 25 armed groups.  Estimates of between 3.5 and 7.8 million deaths since 1998.  Hundreds of thousands of refugees.  Over 200,000 UN reported rapes in the last decade.  Women in the east under a self-enforced curfew, refusing to go outside after 6pm, and forced to travel in groups during the day, for fear of sexual assault. A drastic upswing in the incidence of sexual violence against men in recent months.

And so, when US Secretary of State Hillary Rodham Clinton travelled to Goma, the scene of much of the violence, in order to highlight the issue of combatting sexual and gender based violence as a crime against humanity and a weapon of war, did the American press jump on the horrific and sensational facts of what is the most deadly conflict since WWII?

Of course not.

Apparently, of far more interest and import to the American public was Clinton’s ‘outburst’  on answering a (mistranslated) question about what her husband thought about Chinese contracts in the DRC.

With the exception of recent pieces in the Washington Post, the New York Times, PBS, and a few others that only mention the incident following detailed descriptions of what Clinton was actually doing in the region, the vast majority of US media focus has been on a ‘Bill/Hillary’ popularity contest.

Barely a mention that the number of dead is greater than the population of Montana, the Dakotas, Delaware, Alaska, Vermont and Wyoming, combined.

Or that the number of reported rape victims is greater than the population of Spokane.

No mention of the International Criminal Court’s ongoing trial against Thomas Lubanga Dyilo, alleged leader of the UPC and FDLR militia and party, for using children as young as 7 as soldiers and sexual slaves.

And certainly no mention or even a brief explanation, as many African commentators are wont to complain, of the exceedingly complex domestic political reality of the conflict.  A brief mention of ‘clashes’ between ‘rebel’ and ‘government’ forces generally seems sufficient.

And so, while the Secretary’s visit was done in an effort to raise awareness of the horrific issue of mass war crimes in eastern Congo -  the American public is instead enlightened with video of Clinton saying she ‘will not be channeling her husband.’

Ah, priorities.

Anyone interested in understanding the history of the International Criminal Court (ICC) and prosecuting war crimes should take a look at the new documentary “The Reckoning.”  This film can currently be viewed on-line here [Warning: contains extremely graphic scenes of violence].

The movie explains the court’s history, its foundations in international criminal law that began with the Nuremburg trials following WWII, the ICTY and ICTR ad hoc Tribunals, and negotiations over the Rome Statute.

It is also a fantastic backgrounder into the ICC’s ongoing investigations in the DRC, Uganda, Sudan and Colombia, including how the threat of an ICC investigation affects governments’ and militias’ actions on the ground.

A particularly interesting portion also describes the US’s history with the court.  Interviews and testimony of former US Ambassador to the UN John R. Bolton are used to show Bush-era opposition to the court, un-signing the underlying treaty in 2002, and the belief that without the US the ICC would fail.  These are contrasted with interviews of former US Ambassador for War Crimes Issues David J. Scheffer who helped negotiate the Rome Statute for the Clinton Administration.

Bolton’s testimony before the Senate Foreign Relations Committee explaining the Bush administration’s desire to “isolate and ignore the ICC” in order to protect the American soldier and leaders from prosecution is followed by Scheffer explaining the ICC’s complementarity principle, that is, “if in fact [the US has] a government that does plot and plan crimes against humanity or war crimes, it is US courts which have first take on that.”

Essentially, only if the US justice system was insufficient to prosecute in a case concerning US soldiers would the ICC be able to step in.

But the documentary’s real strength lies in it’s lack of sensationalism in its visual description of pursuing accountability for war crimes - something which recent tv shows describing similar issues, such as “The Philanthropist” and “The Wanted”, fail to do.   “The Reckoning” moves back and forth seamlessly between sterile meetings at the offices of the ICC Prosecutor, scenes of on the ground horrors, and moving interviews with victims.

Frankly, this emphasizes that the crimes alleged are so horrific that there really is no need for Hollywood-style sensationalism.  While this point might otherwise be lost in the tedium of court room procedures and abstract prosecution discussions, following these portions with real life scenes and on the ground interviews reminds the viewer what the ultimate purpose of this court is.

A particularly good example is intermingling scenes of the ICC’s opening case against Thomas Lubanga Dyilo, alleged former leader of the Congolese UPC and FPLC party and militia, with a rather surreal interview of two young women in the DRC who cannot be more than 18 years old.  One of these women, her friend nodding and smiling in the background, bounces her young child on her lap while stating, almost off-handedly “I killed people.  I killed a lot of people” - and goes on to describe her kidnapping, forced “marriage” (often a euphemism for rape) and use as a child soldier in Lubanga’s militia.  Lubanga is then shown fidgeting in the ICC courtroom as a description of charges against him are read out.

At times both extremely disturbing and extremely sanitized, “The Reckoning” is really a fantastic description of the reality of today’s international criminal justice system - which likewise varies between the horrifically shocking nature of on the ground atrocities and the tedium of a courtroom’s legal minutiae.

It is at heart a visual portrayal of what academics and legal debates cannot ever hope to accurately describe in words, and should be viewed by anyone with an interest in the ICC or the nature of conflict.

Speaking in Kenya, U.S. Secretary of State Hillary Rodham Clinton said it is a “great regret” that the US is not a member of the International Criminal Court (ICC) in the Hague, the Associated Press reports.

The ICC was established in 2002 as the first ever permanent, treaty based tribunal for trying genocide, war crimes and crimes against humanity, building on the foundations of the ad hoc tribunals (ICTR, ICTY) created in the 1990s.  It is currently investigating situations in the Democratic Republic of the Congo, the Central African Republic, Uganda and Sudan.

Rodham Clinton’s husband, former President Bill Clinton, originally signed the Rome Statute (the ICC’s underlying treaty) in 2000.  But the treaty was never ratified by Congress and was then ‘unsigned’ by George W. Bush in 2002, on worries about US citizens being brought before the court.

US opposition to the ICC was then further cemented by the enactment of the American Service-Members’ Protection Act, a law authorizing the use of any means necessary to free any US or allied personnel brought to the ICC - effectively a conditional authorization of US intervention in the Netherlands.

Thus the Secretary’s statements indicate a significant policy shift in favor of the court. But for those that hope this shift will result in imminent US membership, reports that the administration in fact remains split on the issue show that this may not happen anytime soon.