After nearly two months of questioning in the Hague, the Special Court for Sierra Leone (SCSL) has temporarily adjourned the Defense’s questioning of former Liberian President Charles Ghankay Taylor, due to the illness of lead counsel Courtenay Griffiths QC.

The SCSL, an ad hoc international-national court - or ‘hybrid’ tribunal - was established by the government of Sierra Leone and the UN to prosecute violations of international humanitarian law and Sierra Leonean law committed during part of Sierra Leone’s eleven year civil war, where the Revolutionary United Front (RUF)/Armed Forces Revolutionary Council (AFRC) rebel alliance committed mass atrocities, including murder, mutilation, amputation, torture, rape and forced abductions. Civilian Defense Forces (CDF) militias fighting on behalf of the government of President Ahmad Tejan Kabbah also committed numerous human rights violations.

Taylor was President of Liberia during much of this time, and is alleged to have been a major backer of the RUF, to have had links with senior leaders in the RUF and the AFRC, and to have been responsible for Liberian forces fighting in support of the Sierra Leonean rebels.  His ongoing trial, though part of the SCSL, was moved to the facilities of the ICC in The Hague due to concerns about regional stability.

Taylor is now charged with 11 counts of war crimes and crimes against humanity including terrorism, murder, sexual violence, physical violence, use of child soldiers, enslavement and looting.  After Slobodan Milosevic, who died while on trial before the ICTY in 2006, Taylor is only the second head of state to be indicted by an international tribunal while in office.

Over the last few months, Taylor has testified that, among other things, he was too busy with goings-on in Liberia to be supporting the RUF in Sierra Leone, that the CIA were involved in his 1985 jailbreak from a US prison, and that his government was not involved in the diamond trade with RUF rebels.  However, when his defense counsel fell ill, further testimony was postponed.  The court ruled that if Mr Griffiths could not appear at court in a few days, a substitute lawyer would need to appear and continue Taylor’s questioning.

And lawyers aren’t only going missing on the defense side – next week the SCSL’s Office of the Prosecutor loses its Chief Prosecutor to the Obama administration.

Stephen Rapp, appointed to the SCSL by Kofi Annan in 2006, will leave the court to assume the post of US Ambassador for War Crimes Issues.  In a recent Q&A session, Rapp talked not only about the past machinations of the SCSL, but also his vision of the US’ role in the future of international justice.

Hopefully the SCSL can quickly move past the temporary loss of Mr Griffiths and the permanent loss of Ambassador Rapp, and eventually serve as a concrete model for prosecuting a head of state for alleged war crimes on the international scene.

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.

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.

If sexual violence against women is often overlooked when discussing war crimes, sexual violence against men is often completely ignored.  But, in recent months the conflict in eastern Democratic Republic of the Congo (DRC) has seen a massive upsurge in sexual violence against men, the New York Times reports.

Although still in a relative minority in relation to the hundreds of thousands of instances of sexual violence against women in the DRC, the impact on affected men is the same.  In fact some would argue that due to the taboos on homosexuality and resulting social ostracizing of a man who has been ‘made a wife’ by another man, men have an even harder time ‘bouncing back’.

Aid workers have said they cannot fully explain this sudden upsurge - the American Bar Association reports that 10% of reported rapes to its Goma clinic in June were brought by men.

But it would seem the increase of rape against men in a society where such traditional gender roles exist heavily underscores the fact that sexual violence in this context is not a random act - it is being used as a weapon of war by armed groups to force certain communities into submission.

On her ten day trip through Africa, US Secretary of State Hillary Clinton will make two stops in the Democratic Republic of the Congo (DRC) - capital Kinshasa and Goma in the east.

Estimates state that conflict in the DRC (a country the size of the US east of the Mississippi) has resulted in 3.5 million to 7.8 million deaths since 1998, and hundreds of thousands of rapes.  Thus international human rights organizations have called on Clinton to urge the prosecution of those military personnel responsible for human rights abuses - in particular ongoing crimes of sexual violence.

In fact, the stated purpose of the Secretary’s visit to Goma is to put a ‘great deal of focus on the issue of sexual- and gender-based violence which is occurring in the eastern Congo’ and she ‘intends to encourage and push the Congolese Government as well as MONUC, the UN peacekeeping force there, to take a much more aggressive stance against gender-based violence.’

Following UN Secretary General Ban Ki-Moon’s report on the systematic use of sexual violence as a weapon as recognized in Security Council Resolution 1820, this trip needs to be a step towards general recognition of the issue’s importance in conflict situations - not just in the DRC, but across the globe.

On July 14, the prosecution wrapped up its case against Thomas Lubanga, the first ever accused brought before the International Criminal Court (ICC).  Lubanga, the alleged leader of the Union des Patriotes Congolais (UPC), and its military wing the Forces Patriotiques pour la Libération de Congo (FPLC), has been charged with enlisting and conscripting child soldiers between 2002 and 2003, in the northeastern Democratic Republic of the Congo’s (DRC) Ituri region as part of the country’s civil war.

The case ran into problems early on, with a judge provisionally ordering Lubanga’s release (later rescinded) after the defense alleged that the prosecutor had failed to disclose all its evidence and testifying witnesses.

But since the start of the Prosecutionʼs case on January 26th, testimony has made another issue increasingly prominent - while witness after witness testified that young girl soldiers were repeatedly raped by commanders, Lubanga has not been charged with crimes of sexual violence.

‘Not considered human beings’

According to many of the thirty prosecution witnesses - mostly former child soldiers themselves - the repeated rape of girls was a daily occurrence in the militia.

‘[The commanders] took girls and would get them pregnant, and then these girls had to leave the camp and go [back] to the village,’ one witness testified. ‘The recruits weren’t considered human beings, so if someone - a girl - was taken by a commander … this had to be accepted.’

Another witness described how certain girl soldiers were forced to have crudely performed abortions in unsanitary conditions. ‘They took traditional medicines. … They had abortions themselves.’  He saw one 14 year old girl die from complications.

As a result of this and other testimony, on May 22 lawyers for 99 victims participating in the trial (the ICC has special procedures whereby victims may be classified as ʻlegal personsʼ and participate to an extent before the court) petitioned the court to include charges of sexual slavery and cruel and unusual treatment. As the victimsʼ lawyers contend that the facts already presented at trial constitute additional crimes, the new charges could only be based on existing witness testimony and evidence.

But this issue indicates a problem that while it has been widely debated in the Lubanga case, is not unique to this case, or the ICC - that is, if rape was so widespread, why did the original indictment fail to include the charges?

Overlooking Crimes of Sexual Violence

There are several reasons how this omission probably occurred in this and other international war crimes cases. The first culprit is the popular belief that systematic rape in war is the exception; that any rape that occurs is a side effect of a high tension situation, generally perpetrated by the ʻrogue soldier.’  Thus investigators on the ground may not immediately seek out evidence of its occurrence - and sexual violence often does not leave publicly visible marks.

But rape as a weapon of war is far more common than most people realize.

The Japanese in World War II have been condemned for the abduction of over 100,000 women for military brothels where they were used as ‘comfort women.’ Approximately 200,000 women were raped during the battle for Bangladeshi independence in 1971.  And while the fact that 800,000 Tutsis and moderate Hutus were killed during the Rwandan genocide is well known, the estimated 250,000 to 500,000 rapes that occurred, resulting in the conception of at least 20,000 children, is a much less prominent figure.

Second, while some investigators might miss the issue because they werenʼt looking for sexual violence crimes, others might miss it because they were asking the wrong questions.

International tribunal practice has shown that, especially where the evidence gatherer is male (as the great majority of international war crimes investigators are), women in many cultures will either not admit to rape at all, or will use local euphemisms that simply do not translate, leaving the investigator no option but to conclude that no sexual violence occurred.

Similarly, admitting to a rape in many cultures could result in a societal backlash against the woman - she will no longer be fit for marriage, and her family may desert her. After having survived indescribable horrors, she can relive her trauma by admitting what happened, and then look forward to a life of being ostracized by her community should protective measures fail and her identity be revealed.

Moreover, even where an investigator has evidence as to rape, lack of communication with the prosecutor may mean it isnʼt ultimately charged, or itʼs subsequently dropped because the investigator was not properly instructed as to the type of evidence that would prove rape before an international court.

This would seem to be the problem in the Lubanga trial, as an ICC representative stated that Lubanga was not charged with rape because of the way the initial investigation was conducted, they ‘[had] too much evidence, not enough focus’ - possibly implying that while investigators came back with a plethora of child soldier recruitment evidence, they didn’t delve further into rape as it wasn’t part of the crimes they thought they were investigating.

But the largest problem by far, is death. Sadly, in conflict situations many victims of sexual violence are killed or die as a result of injuries sustained or diseases contracted during their rape, and can never recount their stories.

Although these barriers to evidence gathering will always exist - this issue has often been brought to the international communityʼs attention.  A wide range of solutions have been suggested to the ICC and other international tribunals, including encouraging more female investigators, more local investigators, and training investigators as to what constitutes proper sexual violence evidence and how to minimize trauma while still gathering evidence.

Considering that several judgments at the ad hoc Tribunals have determined that rape is so serious that it can constitute not only a war crime and a crime against humanity, but also genocide, and with NGOs insisting the evidence was there for the gathering, one would think that allegations of widespread rape and crimes of sexual violence would have found their way into the ICCʼs inaugural case.

Impunity for Rape in the DRC Today?

The Lubanga trial, like most international war crimes cases, is at heart an attempt to shatter the impunity of leaders for terrible atrocities. But the desired deterrent effect can only be accomplished if (1) these leaders are tried for all relevant crimes and (2) those on the ground are aware that their actions will have consequences.

Otherwise, those in charge might think there are still acts they can get away with, or else might have no fear of any repercussions whatsoever.

But while the ICC states it will keep the people of the DRC informed about the Lubanga trial through a series of outreach programs - the situation on the ground continues to reflect this perceived impunity. With militia groups fueled by profits from ‘conflict minerals‘ (the tin, tantalum and tungsten used in mobile phones), attacks on civilians have dramatically increased this year at the hands of both rebel groups and government forces.  These have resulted in the reported deaths of more than 1,500 civilians, the rape of thousands of women and girls, and the abduction of hundreds of adults and children.

While local military courts have convicted a small number of soldiers for crimes of sexual violence in recent months and the government has announced a ‘zero tolerance’ policy for rape by government forces, the fact that commanders responsible for ordering rape have not been held responsible has been roundly denounced by international critics.

And since the ICC itself has also been unwilling or unable to thus far charge Lubanga with crimes of sexual violence, it is easy to see why the mass rapes - ordered or tolerated by commanders who think they’ll never suffer any consequences - will very likely continue.

The International Criminal Tribunal for Rwanda (ICTR) has found Tharcisse Renzaho, former prefect of Kigali-Ville and Colonel of the Rwandan Armed Forces, guilty of genocide, war crimes and crimes against humanity for his involvement in the 1994 genocide of approximately 800,000 Tutsis and moderate Hutus in Rwanda; he was acquitted of complicity to commit genocide.  He has been sentenced to life imprisonment by the court.

Renzaho was found guilty based on his support of the killing of civilians at roadblocks, the distribution of weapons, and his involvement in the murder of more than 100 Tutsis at the Sainte Famille Church, where refugees’ names were read from a list and the victims subsequently shot in the church’s garden.  He was also found criminally liable for rapes that occurred as a result of his remarks encouraging sexual violence against Tutsi women.

Detained at the court’s seat in Arusha, Tanzania since 2002, Renzaho’s trial was presented from January to September 2007.  With closing arguments in early 2008 the Trial Chamber cited its involvement in three other cases as the reason for the judgment’s rather extended delay.

Renzaho’s judgment is part of a quickening of the pace in the last few months as the tribunal, originally slated for closure at the end of 2008, attempts to wrap up the remaining 28 cases still on its docket.  However, with certain trials having dragged on for years, and the nagging problem of the ad hoc tribunal’s difficulties retaining personnel at this stage, it’s almost certain that the court will again overrun its already extended mandate.

Charles Taylor testified Tuesday before the U.N.-backed Special Court for Sierra Leone for the first time, calling the charges against him bogus.

Taylor served as president of Liberia during the 1991-2002 civil war in neighboring Sierra Leone. Taylor allied with the leader of the Revolutionary United Front, Foday Sankoh, operating in Sierra Leone to hijack the regions lucrative diamond fields.

Prosecutors at the tribunal accuse Taylor of attempting to undermine the sovereignty of Sierra Leone in order to control the lucrative diamond trade. Specifically, lawyers say Taylor provided weapons and support for the RUF in exchange for so-called blood diamonds.

RUF rebels conscripted child soldiers by using narcotics to condition them into waging a gruesome war on area villages and communities.

Taking the stand Tuesday before the special court for the first time since his trial began almost 2 years ago, Taylor flatly rejected his role in conflict diamonds.

“Never, ever did I receive — whether it is (in) mayonnaise or coffee or whatever jar — any diamonds from the RUF,” he said. “It is a lie, a diabolical lie.”

Taylor’s defense team does not deny these horrific events took place, but they do dispute the level of his involvement.