War Crimes

Today, the Supreme Court denied certiorari over a mandamus action filed by Syrian Abdul Rahim Abdul Razak Al Ginco. While this was the first detainee challenge to be acted on since last week’s Boumediene decision, it was a mandamus action rather than a habeas action and so Boumediene probably did not affect the justices’ deliberations.

Applying Boumediene, lawyers for a detainee whose case is before the Fourth Circuit have filed a supplemental brief arguing that language in Boumediene precludes the executive branch from ordering him indefinitely detained. The Supreme Court explicitly declined to reach that issue, and since that detainee - Ali Saleh Kahlah Al-Marri - had already been granted habeas rights by a prior Fourth Circuit decision, it is unclear what effect Boumediene will have on his case.

For those interested in a more detailed treatment of the Boumediene decision, the international law blog Opinio Juris is running a symposium.

In yet another resounding slap in the face to the Bush administration on its policies during the so-called war on terror, the U.S. Supreme Court Thursday ruled 5-4 that foreign nationals held at Guantanamo Bay have a right to challenge 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 on Boumediene/Al-Odah v. Bush, cautioned it was not ruling the detainees were unjustly detained. That, Kennedy said, was a matter left to District Court judges.  Instead, the court ruled that Congress has violated the constitution when it took away habeas rights.  If Congress wishes to suspend the writ of habeas corpus, the Court said, it may only do say when the United States is facing a rebellion or an invasion.  Presumably, the international threat posed by transnational terrorist groups, such as al-Qaida, do not fall within that Constitutionally defined doctrine.

The Supreme Court in earlier cases deemed the prior Bush-indoctrinated war crimes tribunal illegal because only Congress has to the right to establish laws of merit. In response, Congress enacted a new set of tribunal procedures and amended the Uniform Code of Military Justice to include, among others, conspiracy to commit terrorist acts against the United States as a violation of the laws of war.

The ruling follows the beginnings of the tribunal proceedings for self-proclaimed Sept. 11-mastermind, Khalid Sheik Muhammad and other co-conspirators.

The ICC’s first trial, against Congolese warlord Thomas Lubanga Dyilo, will be delayed.

Lubanga, a leader of the Union of Congolese Patriots, is accused of command responsibility for hundreds of civilian deaths and the large-scale recruitment or impression into service of child soldiers. Critical case documents are available here, though the judges’ written explanation of their decision to delay the trial will probably not be issued until next week.

BELGRADE (AFP) — Stojan Zupljanin, wanted by the UN war crimes tribunal in connection with atrocities against Muslims and Croats during the Bosnian war, has been arrested near Belgrade, officials said Wednesday.He was among the most-wanted Serbs indicted by the International Criminal Tribunal for the former Yugoslavia — alongside Bosnian Serb wartime leader Radovan Karadzic and his military commander Ratko Mladic, who remain at large.

“One of The Hague indictees, Stojan Zupljanin, was arrested on the outskirts of Belgrade” shortly after noon (1000 GMT), Bruno Vekaric, prosecution spokesman for Serbia’s war crimes court, told AFP.

Zupljanin, 56, was armed, but there were no casualties during his arrest, according to a source who requested anonymity.

In The Hague, the UN tribunal confirmed the arrest, but was unable to say when he would be transferred to its custody.

“That will depend on a number of formalities in the country where he was arrested,” said ICTY spokeswoman Olga Kavran.

“Once in the detention unit, within a day or two, he will make his first appearance before the judges, and he will be given the opportunity to enter a plea,” she explained.

Zupljanin has been indicted for war crimes and crimes against humanity for his alleged central role in the hostilities and the destruction of the Muslim and Croat communities in northwestern Bosnia during the 1992-95 war.

The ICTY had also fingered him for genocide, but that indictment was later dropped.

Zupljanin was a former aide to Karadzic, who remains at large along with Mladic and another ICTY indictee, Goran Hadzic, wartime president of the self-proclaimed Croatian Serb republic of Krajina.

His indictment accused him of participating in the planning, ordering or committing of the “execution of a campaign designed to destroy Bosnian Muslims and Bosnian Croats, in whole or in part”.

Thousands were held in horrific conditions in Serb-run camps during the war in Bosnia-Hercegovina as the former Yugoslavia disintegrated.

Many did not survive — and in the Prijedor area alone, more than 1,500 people were murdered in three notorious camps.

The Serbian war crimes office said the arrest of Zupljanin was headed by its chief prosecutor Vladimir Vukcevic, and carried out by police and Serbia’s police intelligence agency.

“Zupljanin was arrested in a flat” less than 10 kilometres (five miles) from central Belgrade, said Vekaric, adding he would be handed his ICTY indictement and likely be transferred to the Hague within three days.

The ICTY has been seeking Zupljanin since 1999, and having over the four Serb war crimes fugitives to its custody is the main condition for Serbia’s integration into the European Union.

Zupljanin’s arrest comes just days after chief UN war crimes prosecutor Serge Brammertz urged Serbia to do more to locate and arrest the remaining indictees.

“We strongly believe that the remaining fugitives — Ratko Mladic, Radovan Karadzic, Stojan Zupljanin and Goran Hadzic — are within reach of the authorities in Serbia and that the Serbian authorities can do more to locate and arrest them, ” Brammertz told to the UN Security Council.

“With the exception of a genuine but, alas, failed attempt to arrest Stojan Zupljanin, there has been no notable progress in this critical area of cooperation within the past six months.”

KSM (who has confessed) and his codefendants had a preliminary hearing Thursday. The Washington Post notes that, far from a secret undertaking in a dark room, it was attended by two dozen members of the international press, some of whom blogged about the proceedings.

Aside from rejecting appointed counsel, KSM weighed in on same-sex marriage (he’s opposed to it) and helped a court sketch artist do a more accurate - or at least, more flattering - drawing of his nose.

As the Post notes, KSM and his defendants sat at the same table and had the opportunity to confer. According to the attorney for one co-defendant, KSM used the opportunity to push the others to reject legal representation.

“It was clear Mr. Mohammed was trying to intimidate Mr. al-Hawsawi into not having us as counsel,” Jackson said after the hearing ended on Thursday evening. “He was shaking.”

al-Hawsawi, who is accused of financing the attacks, joined the other defendants in rejecting counsel. To ensure they have the opportunity to defend themselves, the court has promised to turn over evidence - including classified evidence - to individuals who stand accused of planning the 9/11 attacks. Other defendants are Walid bin Attash, accused of running an Al Qaeda training camp; accused sleeper cell coordinator Ramzi Binalshibh; and Ali Abdul Aziz.

It is unknown if classified evidence in an ongoing conflict has been turned over to accused war criminals before, or how the necessity of disclosing evidence will affect what cases prosecutors are able to present before the Combatant Status Review Tribunals.

Khalid Sheik Mohammed faces the U.S. military tribunal at Guantanamo Bay, Cuba, Thursday.  The Pentagon charged KSM, along with several other co-conspirators, with terrorism and one count of murder for every victim of the Sept. 11 attacks on New York, Pennsylvania and Washington D.C.  If convicted, each faces the death penalty.  KSM claims, among other things, he is the mastermind behind the Sept. 11 plot.

Critics of the move charge the Pentagon with politicizing the trial as the controversial presidency of George Bush draws to a close.  The tribunal faced international charges of deplorable treatment of the detainees there. The overall U.S.-led effort in the so-called war on terror witnessed broader criticism for its “extraordinary” interrogation techniques (waterboarding) and secret prisons peppered throughout Eastern Europe and Central Asia operated by the Central Intelligence Agency (this will be the first time the world sees KSM since his early morning capture in 2003.)

Furthermore, the U.S. Supreme Court has weighed into the tribunal to determine its legal nature.  Each time the matter appeared before the high court, the Justices chipped away at the general structure of the system.  Among several issues are matters of jurisdiction (the tribunal takes place on a U.S. naval base in a foreign country) and the use of ex post facto law, or defining an act as a crime after it took place.  For example, the Pentagon considered conspiracy to commit terrorism a grave violation of the laws of war after it captured what it calls unlawful enemy combatants.  Finally, the Pentagon claims the detainees do not have the right to challenge their imprisonment in the court systems, or the right to habeas corpus — one of the longest standing foundations of modern civilized law.

Is the United States politicizing the issue by finally putting its highest profile targets before a court?  Probably.  Or is the United States pushing the issue forward before the U.S. Supreme Court weighs in on a package of cases that may finally settle the habeas issue?  Most likely.

On the heels of the International Criminal Court Chief Prosecutor’s report released earlier this week, which implicated the Sudanese government in the ongoing genocide in Darfur, a coalition of human rights groups released this video fleshing out the charges against Harun and Kushayb with testimony from victims and calling on the UN Security Council to push Sudan to cooperate with the ICC.

In the historic first case transferred to Croatian courts by the International Criminal Tribunal for the Former Yugoslavia (ICTY), General Mirko Norac was convicted and General Rahim Ademi acquitted of war crimes on theories of command responsibility.

The historic conviction is a major step forward for Croatia, whose government long resisted responsibility for war crimes committed by ethnic Croats during the conflict and whose EU accession has been conditioned on successful prosecutions of Croatian war criminals. The court has been less active than its Bosnian counterpart, but more successful prosecutions should help facilitate international confidence in the Croatian government and, eventually, EU accession.

The Associated Press reports that International Criminal Court Chief Prosecutor Luis Moreno-Ocampo issued a new report today to the UN Security Council describing evidence that high officials in the Sudanese government are directly linked to the ongoing genocide in Darfur. The report said a pre-trial hearing would be held next month.

Evidence of Sudanese government involvement in the genocide comes as little surprise, since one of the two men indicted by the ICC for crimes in Darfur - Ahmad Harun - continues to serve as Minister of State for Humanitarian Affairs, and the other - Ali Kushayb - was recently released from Sudanese prison. However, Moreno-Ocampo’s report, encompassing testimony from more than 100 witnesses from 18 countries, could replace the Cassesse commission report as the most exhaustive, conclusive record of the atrocities perpetrated in Darfur, and serious charges against “the highest officials of the [Sudanese] government,” as AP suggests the report may recommend, would materially ratchet up the pressure on the Sudaneese government to end its cooperation with the janjaweed.

Reuters reports today that as chief plotter Khalid Sheikh Mohammed and other 9/11 defendants, it is not clear whether inculpatory statements made by the defendants will be admissible into evidence at their trials or which statements prosecutors will seek to introduce. Since many defendants will likely allege such statements were only made as a result of physical coercion, they provide a very shaky foundation for major prosecutions. (In Sheikh Mohammed’s case, however, finding public inculpatory statements should not be difficult).

As Daniel noted a few weeks ago, one of the six defendants the prosecution had initially sought to try jointly, Mohammed al-Qhatani, has already been separated for trial purposes and some commentators conjecture it had to do with particular flaws in the evidence against him. In Al-Qhatani’s case, the presiding judge refused the charges against the man who is accused of plotting to serve as the 20th 9/11 hijacker without prejudice, so the government may refile the charges at any time.

Arraignments are scheduled for Thursday, June 5, but it is very unlikely that either the prosecution’s strategy or the standards the judges will apply in determining which inculpatory statements to admit into evidence will be clarified at that time.