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.

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.

“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.

A high-level Rwandan rebel indicted by the United Nations war crimes tribunal for his role in the 1994 genocide in the tiny Central African country has been handed over to the court after being arrested in the neighbouring Democratic Republic of the Congo (DRC).Grégoire Ndahimana, a high-level figure in the Forces démocratiques de libération du Rwanda (FDLR), was arrested in eastern DRC by the Congolese Army on 10 August 2009, and handed over by the Congolese Government to the International Criminal Tribunal for Rwanda (ICTR) on Sunday in a transfer facilitated by the UN Mission in the DRC, known as MONUC.

Mr. Ndahimana was one of 13 fugitives still at large out of the 81 people indicted by the ICTR for serious violations of international humanitarian law committed in Rwanda in 1994, when an estimated 800,000 ethnic Tutsis and Hutu moderates were killed by Hutu militants, mainly by machete, during a period of less than 100 days.

Secretary-General Ban Ki-moon today welcomed the fugitive’s transfer, his spokesperson said in a statement.

WASHINGTON - The CIA’s harsh interrogations are likely to have damaged the brains of terrorist suspects, diminishing their ability to recall and provide the detailed information the spy agency sought, according to a new scientific paper.

The paper scrutinizes the techniques used by the CIA under the Bush administration through the lens of neurobiology and determines the methods to be counterproductive, no matter how much the suspects might have eventually talked.

“Solid scientific evidence on how repeated and extreme stress and pain affect memory and executive functions (such as planning or forming intentions) suggests these techniques are unlikely to do anything other than the opposite of that intended by coercive or enhanced interrogation,” according to the paper published Monday in the scientific journal Trends in Cognitive Sciences.

In the paper, Shane O’Mara, a professor at Ireland’s Trinity College Institute of Neuroscience, wrote that the severe interrogation techniques appear based on “folk psychology” - a layman’s idea of how the brain works as opposed to science-based understanding of memory and cognitive function.

O’Mara told The Associated Press on Monday he reviewed the scientific literature about the effect of stress on memory and brain function after reading descriptions of the CIA’s Bush-era interrogation methods. The methods were detailed in previously classified legal memos released in April.

“The assumption is that the (methods) are without effect on memory, or indeed facilitate the retrieval of information from memory,” O’Mara said.

But overwhelmingly, scientific literature shows the opposite: Chronic stress and trauma - the likely result of the CIA’s methods, particularly for long-term prisoners, according to O’Mara - can damage the hippocampus, the part of the brain that integrates memory.

The list of techniques the CIA used included prolonged sleep deprivation - six days in at least one instance - being chained in painful positions, exploitation of prisoners’ phobias, and waterboarding, a form of simulated drowning that President Barack Obama has called torture. Three CIA prisoners were waterboarded, two of them extensively.

Those methods cause the brain to release stress hormones that, if their release is repeated and prolonged, may result in compromised brain function and even tissue loss, O’Mara wrote.

He warned that this could lead to brain lobe disorders, making the prisoners vulnerable to confabulation - in this case, the pathological production of false memories based on suggestions from an interrogator. Those false memories mix with true information in the interrogation, making it difficult to distinguish between what is real and what is fabricated.

Waterboarding is especially stressful “with the potential to cause widespread stress-induced changes in the brain, especially when these are repeated frequently and intensively,” O’Mara wrote.

“The fact that the detrimental effects of these techniques on the brain are not visible to the naked eye makes them no less real,” he wrote.

The paper also asserted that forcibly exposing prisoners to what they are afraid of - the CIA got approval to use a suspect’s fear of insects against him - is actually a method used to cure phobias.

A 2006 Intelligence Science Board report on interrogation also noted possible negative effects of certain methods. For example, isolating suspects can be beneficial to interrogation because it shakes prisoners’ confidence and expectations, but extended isolation can significantly and negatively affect the ability of the source to recall information accurately, according to the report.

The board, created in 2002, provides independent advice to senior intelligence officials on emerging scientific and technical issues of special importance to intelligence work.

The government is seeking the delay because the rules for military commissions may be substantially changed by legislation (the Military Commissions Act of 2009), intended to overhaul the procedures formalized by the Military Commissions Act of 2006 (‘MCA’).

This request was made as part of a reply to the defense’s writ petition (in a filing with the DC Court of Appeals, the court of appeal for military commissions) requesting an indefinite stay of proceedings; the defense also argued that the MCA is altogether unconstitutional.

While Congress debates a commission overhaul, critics argue that rather than a simple makeover of the commissions - which they see as solely a means to the end of finding all those charged before them guilty and not a proper trial - the detainees’ cases should be brought before the pre-existing tried and tested US court system.

It may seem odd that the requested delay is for one of a class of cases - the all-inclusive ‘military trials’ - consistently reported to have been put ‘on hold’ since President Obama announced soon after taking office that he would close the Guantanamo prison in January 2010; he has thus far (via the prosecution) made two continuance requests to the commissions.

But for trials that are not moving forward by presidential decree, the commission has nonetheless made a few decisions over the last few months.  Due to the fact that hearings at Guantanamo Bay do not amount to a ‘proceeding’, they have thus have been judged not subject to the President’s order.  In other words, never did the commission order a ‘halt’ to ‘any and all actions related to this case’.

In particular, this has meant further scheduling orders regarding one defendant’s (bin al Shibh) competence to stand trial.  These 2009 orders followed issues raised in several 2008 decisions - those denying the defense request for an independent psychiatric expert to examine the defendant, who military doctors have deemed psychotic and kept on psychotropic medication; and those amending this and appointing a defense psychologist, with the proviso that the psychologist not be permitted to meet with bin al Shibh or testify at a competency hearing.

Thus, regardless of the President’s decrees, in August 2009 the commission continued (partially) on, denying the defense request for ‘non-essential’ information regarding alleged inhumane treatment of bin al Shibh during his 4 years in CIA custody that arguably may have caused his psychosis.

And the competency hearing itself, scheduled for September 21st - the date set by the ‘on hold’ commission - is the one for which both the prosecution and the defense are now requesting a delay.

He was initially charged by the UN International Criminal Tribunal for Rwanda (ICTR) with ordering his subordinates and instigating others to kill hundreds of Tutsi civilians near a tea factory.

Mr. Bagaragaza helped establish, fund, train and arm the Hutu-dominated rebel Interahamwe militia to carry out attacks on Tutsi civilians and to have been the honorary president of a local Interahamwe unit. He also ordered tea factory employees to provide the Interahamwe with vehicle fuel, arms and ammunition from a stockpile at the factory and ordered them to help kill hundreds of Tutsis, the Tribunal said.

Bagaragaza fled to Kenya after the Genocide.  Bagaragaza turned himself in August of 2005 to the ICTR in Arusha, Tanzania as part of an undisclosed “amicable arrangment” with the prosecution.  He was later transferred to the International Criminal Tribunal for Yugoslavia at The Hague due to security concerns.  These concerns stem from Bagaragaza giving testimony in earlier cases against former colleagues including Habyarimana’s brother-in-law.  He requested and was denied referral to the national court system in Norway after it was determined that Norway had no provision to prosecute Genocide and in The Netherlands after doubts arose that their judicial system would be able to carry out the prosecution.  He was subsequently returned to the ICTR in Tanzania where he entered his plea today.

“The mission finds that the conduct of the Israeli armed forces constitute grave breaches of the Fourth Geneva Convention in respect of wilful killings and wilfully causing great suffering to protected persons and as such give rise to individual criminal responsibility,” the report’s executive summary said. “It also finds that the direct targeting and arbitrary killing of Palestinian civilians is a violation of the right to life.”

On the Palestinian side:

“There’s no question that the firing of rockets and mortars [by armed groups from Gaza] was deliberate and calculated to cause loss of life and injury to civilians and damage to civilian structures. The mission found that these actions also amount to serious war crimes and also possibly crimes against humanity.”

Though evidence of international criminal violations was present on both sides Palestinians clearly bore the brunt of the casualties:

Palestinians and human rights groups say more than 1,400 Gazans were killed, but Israel puts the figure at 1,166.

Three Israeli civilians and 10 Israeli soldiers were also killed.

The fact finding mission was headed by Richard Goldstone who has served as Chief Prosecutor for both the Yugoslav and Rwandan International Criminal Tribunals.  Goldstone, one of the most eminent international lawyers in the world and trustee of Hebrew University in Israel, is almost unanimously viewed as a fair an impartial choice to have led the mission, an important factor to the mission’s legitimacy considering the widely perceived anti-Israeli bias of the U.N.  The climate for the release of the mission’s findings could have been better - Human Rights Watch recently suspended one of its top investigators in light of the discovery of his obsession with Nazi paraphernalia - but it comes on the heels of Chief ICC Prosecutor Luis Moreno Ocampo announcing last week that his office is launching a preliminary investigation into possible war crimes committed during the Gaza invasion (and also Afghanistan, Georgia, Colombia and Kenya).

The prisoners will be given military officials - not lawyers - to represent them and will be allowed to call witnesses and present a defense before a military review board.

However, many believe the situation at Bagram to be analogous to that of Guantanamo Bay, and that detainees in both facilities should be allowed to challenge their detentions in US courts, as seemingly espoused in the April ruling of U.S. District Judge John Bates.

However, in response to Bates’ ruling, the Obama administration has argued that the two situations are quite different.  Due to Bagram’s location in Afghanistan - a specifically delineated ‘theater of war’ - the Geneva Conventions do allow for detention of prisoners of war captured there.

According to the administration, a purely military review with no resort to habeas proceedings in US courts is in this case sufficient.

But while this might seem a logical argument, the thorny problem remains that some Bagram detainees are non-Afghans, many of them captured in other countries and ‘rendered’ to Bagram, rather than Guantanamo.  Bates’ decision - noting the similarity of the Guantamo and Bagram situations - was with respect to an application made by non-Afghan detainees captured elsewhere and held at Bagram.

While the resolution of this issue will be key for US military and judicial decision makers for years to come, whether it will have any effect in relations on the ground - after 8 years of war and detention - is questionable.

Scholars differ as to whether the Tribunal has authority to enforce contempt charges.  William Schabas argues that it doesn’t and that if Hartmann ignores the court’s judgement she should be able to skirt any punishment.  The court clearly grants itself authority to hold subjects in contempt but individually negotiated extradition treaties do not generally include such a clause. Proponents of the judgment argue that Hartmann’s disclosure deters future governments’ cooperation with special tribunals.

Hartmann plans to appeal Monday’s decision regardless.  Hartmann’s controversial memoir currently sells used for $100 on Amazon where it ranks in the 3,000,000’s.  It is hard to say whether the book’s revenue would offset the fine.