JURIST - Paper Chase: Thursday, September 15, 2011

[JURIST] Human Rights Watch (HRW) [advocacy website] on Thursday called on the International Criminal Court (ICC) [official website] to correct an imbalance in its investigations and prosecutions of war crimes and human rights violations. In a 50-page publication titled "Unfinished Business" [report, text; press release], HRW assessed the choice of cases made by the Office of the Prosecutor (OTP) [official website] in its first five investigations, claiming that the resulting prosecutions do not go "far enough to ensure that justice delivered by the ICC will resonate with concerns of victims and affected communities." The court's jurisdiction may be triggered in one of three ways—state parties or the UN Security Council [official website] can refer a specific set of events termed a "situation" to the ICC prosecutor, or the OTP can seek on his own motion authorization by a pre-trial chamber of ICC judges to open an investigation. Based on HRW country expertise and close monitoring of the ICC over the past eight years, the report concludes that to safeguard the ICC's independence and impartiality, the OTP needs to investigate and bring to trial individuals responsible for some of the world's gravest crimes, especially government officials. For example, in Uganda and Democratic Republic of Congo (DRC), ICC investigations have targeted rebel groups but have not yielded charges against government officials and armed forces widely alleged to have committed serious human rights abuses. Without such prosecutions, or clear and public explanations as to why they are not being pursued, the ICC's perceived independence and impartiality is undermined worldwide. The report goes on to state that this is a critical time to correct such perceptions through new investigations, as ICC member states will elect a new prosecutor in December. The current ICC prosecutor, Luis Moreno-Ocampo [official profile], was elected to a nine-year term in 2003. The HRW report was prepared by Elizabeth Evenson [official profile], senior counsel in the humanitarian group's International Justice Program.

The ICC is the world's first permanent court mandated to bring to justice perpetrators of war crimes, crimes against humanity and genocide when national courts are unable or unwilling to do so. The ICC treaty, known as the Rome Statute, entered into force in 2002, four years after 120 states adopted it during the Rome Conference. This month Ocampo announced that he is seeking assistance [JURIST report] from INTERPOL [official website] to locate and arrest former Libyan leader Muammar Gaddafi [BBC profile; JURIST news archive], as the ICC has issued arrest warrants [JURIST report] for Gaddafi, his son and his brother-in-law for alleged crimes against humanity. Also this month the court began hearings in Kenya's post-election violence cases against the "Ocampo Six" [JURIST reports] for incitement of violence during and after the 2007 Kenyan elections. The HRW report called these investigations into Kenyan government officials a "welcomed shift from past practice" and a "marked contrast to Congo" where prosecution delays inadvertently may have actually worsened ethnic tensions. However, it is notable that last month the ICC did conclude its first war crimes trial [JURIST report] with the prosecution of a Congo militia leader charged with enlisting child soldiers into his militia, one which is believed to have committed large-scale human rights abuses in DRC's violent Ituri district. A verdict in the case is expected in early 2012. In addition to the African investigations in Congo, northern Uganda, Libya and Kenya, along with others in the Central African Republic and the Darfur region of Sudan, the OTP is looking at situations in Afghanistan, Colombia, Georgia, Guinea, Honduras, Nigeria and South Korea. The Palestinian National Authority also has petitioned the ICC prosecutor to accept jurisdiction over alleged crimes in Gaza.

[JURIST] A judge for the US District Court for the Eastern District of Michigan [official website] ruled [case materials] Thursday that statements made by Nigerian national Umar Farouk Abdulmutallab [BBC profile; JURIST news archive] while in the hospital following his alleged attempt to detonate a bomb on Northwest Airlines Flight 253 are admissible. Abdulmutallab argued that the conduct of the FBI agents was coercive because they interviewed him while under the effects of painkillers [text, PDF] and did not give him Miranda warnings. The government responded that Abdulmutallab's statements were voluntary [text, PDF] because the fact that an individual was on painkillers alone does not necessitate a finding of involuntariness and there was no evidence of any type of coercive conduct by the FBI agents. The government further argued that the lack of Miranda warnings was justified by the fact that Abdulmutallab claimed that he was trained by al Qaeda and the agents feared that an immediate interview was necessary to ascertain whether there were other imminent attacks planned. Judge Nancy Edmunds agreed with the government [Detroit News report] that national security concerns outweighed the need to give Abdulmutallab his Miranda warnings and testimony from hospital staff established that he was lucid and not confused, despite being administered a painkiller. The trial is set to begin October 11.

The use of full body scanners [TSA backgrounder] at airports is largely a response to Abdulmutallab's failed bombing attempt. In July the US Court of Appeals for the District of Columbia Circuit [official website] rejected a constitutional challenge [JURIST report] to the use of the controversial full body scanners by holding that the use of the scanners does not constitute an unreasonable search. In December a federal grand jury charged Abdulmutallab with two new counts of conspiracy and firearm possession, in addition to the six previous charges [JURIST reports] of attempted use of a weapon of mass destruction, attempted murder within the special aircraft jurisdiction of the US, willful attempt to destroy or wreck an aircraft, willfully placing a destructive device on an aircraft, use of a firearm/destructive device during and in relation to a crime of violence, and possession of a firearm/destructive device in furtherance of a crime of violence. In September 2010 Abdulmutallab fired his lawyers and chose to represent himself [JURIST report]. Abdulmutallab plead not guilty to all charges [JURIST report] in January 2010.

[JURIST] Malaysian Prime Minister Najib Razak [official profile] announced on Thursday that the government would repeal two strict security laws that had allowed extended detention of suspects without trial, as well as review other laws dealing with freedom of the press. The government will abolish the Internal Security Act (ISA) of 1960 [text, PDF] and the Banishment Act of 1959 [text, PDF]. The ISA allowed the prime minister to order the imprisonment of individuals deemed to be a threat to national security for a period of up to two years without a trial. The Banishment Act granted the prime minister the right to expel any non-citizen from the country. Razak also announced that the government will carefully review the Restricted Residence Act of 1933, Printing Presses and Publications Act of 1984 and Section 27 of the Police Act of 1967 [texts, PDFs], which allowed police supervision of suspects and regulated newspapers and the right of citizens to assemble peacefully. Some see the actions as movement toward a more democratic government [The Sun Daily report], while others warn that the announcement was politically motivated and not a strong sign of reform.

Malaysia has been criticized for alleged rights violations. For example, last week, the three-judge Malaysian Federal Court [official website] ruled unanimously against indigenous people [JURIST report] fighting against the Sarawak government's seizure of land to build a dam. The court had agreed to hear the suit [JURIST report] in March. Two of the judges refused to rule on the constitutionality of the land takings, saying that the case should have gone to arbitration, and the third judge ruled that the takings were constitutional. The Center for Orang Asli Concerns [advocacy website] expressed disappointment in the ruling, which it said failed to uphold citizens' rights. There are currently more than 100 unresolved land rights suits filed by indigenous people in Malaysia's lower courts.

[JURIST] Tunisia announced its intention Wednesday to plead for the return of its remaining citizens being held at the Guantanamo Bay [JURIST news archive] detention facility. A Justice Ministry representative, speaking at an awareness conference in Tunis, called for the repatriation [AP report] of the five Tunisian detainees still being held at the prison and indicated the nation's intention to send a mission to the US to achieve their release. The conference was organized by Reprieve [advocacy website; press release], a British humanitarian group and legal action charity that seeks to enforce human rights and due process for prisoners worldwide. In the past, such groups had been against repatriation due to reports of torture and abusive interrogation [JURIST reports] upon prisoners' return to Tunisia under the regime of ousted dictator Zine Al Abidine Ben Ali [BBC profile; JURIST news archive]. However, with the fall of the former regime and its reputation of human rights abuses, Reprieve claims there is no longer a reason to hold the remaining prisoners:

On the night the Tunisian people successfully overthrew Ben Ali's dictatorship, five Tunisian men had just spent their ninth anniversary of imprisonment in the notorious US naval base. To date, they have had neither charge nor trial. Members of the interim government, international and national human rights activists, lawyers, ex-detainees and family members have all pledged their support for this cause. Today's conference will examine how this support can be turned into action.

There have been 12 Tunisians imprisoned at the Guantanamo facility [NYT backgrounder] since it opened in 2002, two of whom were returned to Tunisia and imprisoned [JURIST reports] in 2007. The other five released detainees have been extradited to third countries [JURIST reports] for various reasons.

The continued operation of Guantanamo Bay remains controversial. In February, JURIST Guest Columnist Naureen Shah [university profile] from the Human Rights Institute at Columbia Law School wrote that some Guantanamo detainees cannot go home [JURIST op-ed], and the US should design smarter monitoring protocols, let courts and the public test decide whether diplomatic assurances can prevent abuse, and resettle detainees who face too great a risk of torture. In January, Human Rights Watch (HRW) [advocacy website] criticized US President Barack Obama for failing to shut down the facility altogether, as Obama's stated desire to close the Guantanamo prison [JURIST reports] has faced heavy opposition in Congress. Earlier in January, Obama signed a bill barring the transfer of Guantanamo detainees [JURIST report] to the US for trial. The legislation authorized funding for defense interests abroad, military construction and national security-related energy programs and barred the use of funds to transfer detainees into the US and limited funds available for transfers to foreign countries. The number of detainees at Guantanamo has been significantly reduced as the administration continues to transfer detainees to a growing list of countries including Germany, Italy, Spain, Maldives, Georgia, Albania, Latvia, Switzerland, Slovakia, Somaliland, Palau, Belgium, Afghanistan and Bermuda [JURIST reports].

[JURIST] The UN Security Council [official website] on Wednesday extended the terms for prosecutors from the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) [official websites] until December 31, 2014. In unanimously adopting resolutions 2006 and 2007 [press releases], the Security Council extended the terms of prosecutors Serge Brammertz [official profile] and Hassan Bubacar Jallow [Cornell profile]. Brammertz has served as Prosecutor of the ICTY since 2008, and Jallow has served as Prosecutor of the ICTR since 2003. The Security Counsel emphasized that both terms will expire when the tribunals complete their work [UN News Centre] and urged both tribunals to complete their cases by December 2014.

The tribunals, created by the UN in 1993 and 1994, have been working to complete their caseloads. Last week, the ICTY convicted [JURIST report] ex-Yugoslav army chief Momcilo Perisic [JURIST news archive] for crimes against humanity and war crimes committed during the wars in Bosnia and Croatia, including his participation in the Srebrenica massacre [JURIST news archive]. Ratko Mladic [JURIST news archive], with whom Perisic allegedly collaborated, is still awaiting trial for genocide at The Hague. The ICTR also continues to try suspects for crimes occurring during the 1994 Rwandan genocide [JURIST news archive]. Earlier this year, the ICTR transferred its first case [JURIST report] to a Rwandan court, saying that Rwanda was capable of accepting and prosecuting the case of former Rwandan pastor Jean-Bosco Uwinkindi [case materials].

[JURIST] The Court of Appeal of Paris [official website, in French] on Wednesday affirmed the acquittal [press release, in French] of former prime minister Dominique de Villepin [BBC profile; JURIST news archive] for allegedly taking part in a smear campaign known as the Clearstream Affair [BBC backgrounder]. Villepin was charged with "complicity in false accusation" for his alleged role in a plot to defame several French public figures, including current President Nicolas Sarkozy [official profile, in French; JURIST news archive]. Prosecutors claimed Villepin came into the possession of a list of secret bank accounts [AP report] that held bribe money relating to illegal arms sales and named Sarkozy and several others as the owners of the accounts. The list was later determined to be fake and prosecutors argued that Villepin should have brought the list to the attention of judicial authorities earlier than he did. Villepin applauded the judiciary for remaining independent and "resist[ing] political pressure" in affirming the decision. He also relayed his hope that the decision would help make France "less vulnerable to rumors and slander" and reiterated his intention to run in the upcoming 2012 presidential election.

A French court acquitted Villepin of all charges [JURIST report] in January 2010. Sarkozy indicated that he would not appeal the verdict, and prosecutors filed an appeal the next day [JURIST report] without Sarkozy listed as a civil party. Villepin was ordered to stand trial [JURIST report] in November 2008, and his trial began in September 2009. Before his acquittal, de Villepin had faced the possibility of an 18-month suspended prison sentence and a €45,000 fine. Villepin's political image was tainted by the allegations as well as by his advance of an unpopular youth labor law [JURIST news archive] during his time as prime minister.