http://www.icty.org/sid/10972

By Peter Godwin

14 May 2012

For the past decade, South Africa has been the preferred vacation spot, shopping destination and international transit hub for members of the tyrannical and murderous government ruling its northern neighbor, Zimbabwe — a government that has rigged elections, beaten and killed opposition activists and ruined a once thriving economy. All of this could now change because of a landmark legal decision.

Last week, the High Court in Pretoria, South Africa’s administrative capital, handed down a historic judgment. It ordered South African authorities to investigate and prosecute members of Robert Mugabe’s government who had tortured their political opponents. Under South African law, the police are obliged to investigate evidence of a crime against humanity, wherever it occurs, if the rule of law does not exist there, as is the case in Zimbabwe.

The ruling has profound implications. It could cement South Africa’s commitment to protecting human rights and broaden the application of universal jurisdiction, which is the ability of countries to prosecute people who committed certain egregious crimes outside its borders. Unfortunately, the South African authorities want to sidestep it and are reportedly preparing an appeal to the Supreme Court of Appeal, which oversees the High Courts.

Overturning the ruling would be a disastrous setback, and all those who care about human rights in Africa should pressure President Jacob Zuma of South Africa to let the decision stand.

The case began in early 2008, when lawyers gave South African government prosecutors a dossier containing evidence that 17 Zimbabweans, some of whom now live in South Africa, had been tortured. They had been seized by Mr. Mugabe’s police in Zimbabwe during a raid of the main opposition party’s headquarters. The police then tortured them with electric shocks, mock executions and simulated drowning. Inside the dossier were the victims’ sworn statements, corroborating affidavits from witnesses and doctors and the identities of the alleged perpetrators.

Yet the South African government prosecutors have so far refused to investigate these allegations, overruling the recommendations of the prosecutor in charge of the case. They tried to argue that such an investigation was impractical, and that it would complicate diplomatic relations with Zimbabwe at a time when President Zuma was supposed to be mediating between Mr. Mugabe and the opposition. The Pretoria High Court threw out all these objections, and said that the South African police and prosecutors had acted unconstitutionally by letting political considerations stop them, and that they were obliged to investigate.

Although South African prosecutors cannot try the perpetrators in absentia, the case will still have a galvanizing effect on the situation in Zimbabwe. Anyone there who is under investigation will now risk arrest by coming to South Africa, a country frequented by the Zimbabwean elite for shopping, medical treatment, catching international flights or visiting their vacation homes in Johannesburg or Cape Town.

See here for the rest of the article.

Peter Godwin is the president of the PEN American Center and author, most recently of “The Fear: Robert Mugabe and the Martyrdom of Zimbabwe.”

General Mladić faces 11 counts of war crimes and crimes against humanity, including two counts of genocide. He is charged on the basis of individual criminal responsibility and superior criminal responsibility.

The indictment alleges that:

• From 12 May 1992 until 30 November 1995, General Mladić participated in a joint criminal enterprise (JCE) to permanently remove Bosnian Muslim and Bosnian Croat inhabitants from the territories of Bosnia and Herzegovina claimed as Bosnian Serb territory.

• Between 12 May 1992 and November 1995, Mladić participated in another JCE to establish and carry out a campaign of sniping and shelling against the civilian population of Sarajevo, the primary purpose of which was to spread terror among the civilian population.

• Commencing in the days immediately preceding the 11 July 1995 implementation of the plan to eliminate the Bosnian Muslims in Srebrenica and continuing until 1 November 1995, Mladić participated in a JCE to eliminate the Bosnian Muslims in Srebrenica by killing the men and boys and forcibly removing the women, young children and some elderly men from the area.

• During May and June 1995, Mladić participated in a JCE to take United Nations personnel hostage in order to compel NATO to abstain from conducting air strikes against Bosnian Serb military targets.

The indictment alleges that, additionally, Mladić is individually criminally responsible for planning, instigating, ordering and/or aiding and abetting the crimes charged in the indictment.

The indictment states that, as Commander of the Main Staff, Mladić was the most senior officer of the VRS. In this capacity Mladić was the superior of, and had effective control over, members of the VRS and elements of Serb forces integrated into, or subordinated to, the VRS that participated in the crimes alleged in the indictment. It is further alleged that Mladić knew or had reason to know that crimes were about to be committed or had been committed by members of the VRS and/or elements of Serb forces under his effective control and that he failed to take the necessary and reasonable measures to prevent the commission of crimes and/or to punish the perpetrators thereof.

The counts read as follows:

1. Genocide – against a part of the Bosniak and/or Bosnian Croat national ethnical and/or religious groups
2. Genocide – against Bosniaks in Srebrenica
3. Persecution (Crime against Humanity) – against Bosniaks and Bosnian Croats
4. Extermination (Crime against Humanity)
5. Murder (Crime against Humanity)
6. Murder (Violation of the Laws of War)
7. Deportation (Crime against Humanity)
8. Inhumane Acts (forcible transfer) (Crime against Humanity)
9. Terror (Violation of the Laws of War)
10. Unlawful attacks on civilians (Violation of the Laws of War)
11. Taking of hostages (Violation of the Laws of War)

Mladić was arrested in May 2011 after years in hiding.

At a hearing at the ICTY in June 2011, he stated: “I defended my people, my country… now I am defending myself.”

Further information on today’s proceedings is available here.

The Defence Team for Assad Sabra, led by David Young of 9 Bedford Row International, challenged the jurisdiction of the STL on the basis that it violates: the Lebanese legal and constitutional order; the core principles of the United Nations Charter, including respect for State sovereignty and the rule of law; and important human rights safeguards as a result of the displacement of Lebanese jurisdictions by an international special court.

The Defence teams argue that Lebanon did not properly consent to be bound by the “agreement” with the UN as the agreement was negotiated, adopted and signed by persons acting without the requisite legal capacity, the agreement was never ratified in compliance with the Lebanese Constitution, and the agreement therefore never entered into force.

The Defence teams also argue that UN Security Council Resolution 1757 illegally bypassed the law of treaties in contravention of the UN’s intention to establish the STL on a conventional basis.

The motions further argue that the UN Security Council acted ultra vires in adopting Resolution 1757 under its Chapter VII powers as the assassination of former Prime Minister Rafiq Hariri could not be considered a threat to international peace and security.

As an unlawfully and unconstitutionally established body, the Defence teams submit, the STL therefore fails to meet the minimum requirement that it be “established by law”. Consequently, the STL is unable to meet basic fair trial standards.

Read the Ayyash motion here.

Read the Badreddine motion here.

Read the Oneissi motion here.

Read the Sabra motion here.

According to Shreen Abdul Saroor, a prominent rights activist working with conflict-affected women in northern Sri Lanka, “These women continue to live in hope even though many of those Tamil men may have died in the last days of the fighting”. She explains that, “even if they do acknowledge that their men have died, they don’t want to be known as widows as that could result in them being seen in a negative light in the community.”

A report by Sri Lanka’s Lessons Learnt and Reconciliation Commission (LLRC), has drawn attention to the plight of Tamil widows stating, “Their lives are often lonely and insecure, and they are treated as a symbol of bad omen in their own social circles.”

War widows and mothers who have lost their loved ones in northern Sri Lanka are fearful of the repercussions they may face if they dare to speak out publicly on sensitive issues. This inability to speak out has been a major hurdle in the post-conflict healing process.

According to government estimates, the ethnic conflict in Sri Lanka has widowed 59,000 women, the bulk of them in the Tamil-dominated north and east. Tamils, who form 12 percent of Sri Lanka’s 20 million population, mostly follow Hinduism, a religion which traditionally considers widows to be inauspicious and does not favour remarriage. While widows elsewhere in the country have marriage certificates to prove marital status, women in the north are unable to produce documents because of the destruction of official records during the war.

Difficulties are often encountered in the process of rehabilitating widows in the north, as loans for livelihood, development and empowerment fail to reach the intended beneficiaries. As a result, many women have been compelled to resort to sex work to earn a livelihood and provide for their families. However, the lack of awareness of birth control methods has led to illegitimate babies being born and reports of spread of HIV/AIDS and other sexually transmitted diseases.

“Multilateral agencies say women are key to post-war reconstruction”, said Shanthi Sachithanandam, executive director of the Viluthu Centre for Human Resource Development that works with conflict-affected women, but “They have no opportunity to tell their stories”.

To read the full IPS article please click here.

“The purpose of the Residual Special Court (RSCL) is to carry out the functions of the Special Court for Sierra Leone that must continue after the closure of the Special Court,” states the RSCSL Statute. But in the wake of the Taylor judgement and almost two years after the RSCSL agreement signed between Freetown and the UN, questions are being asked as to how much is actually in place today to ensure the Court’s legacy.

Click here for the full article:

 http://www.rnw.nl/international-justice/article/much-remains-be-done-sierra-leone

Guest post by Emma Miles

The Ghana Coalition for the International Criminal Court has petitioned the International Criminal Court (ICC) to investigate genocidal statements and ethnic-cleansing pronouncements made by a Member of Parliament, Mr Kennedy Ohene Agyapong.

Mr Agyapong, owner of a radio station and television station, declared publicly on 13 April 2012 that the Akan population (Ghana’s largest ethnic group) should attack any Ewe or Ga person (smaller ethnic groups) they come into contact with.

The New Patriotic Party legislator was subsequently detained for three days at the Bureau of National Investigations in Ghana, and was released on bail after being charged with treason, attempted genocide and terrorism.

The Ghana Coalition for the International Criminal Court petition has used the examples of events in Kenya and the Ivory Coast to emphasise that the prospect of violence is real, especially where the judiciary seems unwilling to punish individuals who incite or engage in violence.

However, it is yet to be seen whether the ICC referral will come to fruition. There has been a mixed reaction within Ghana itself, with officials cited as claiming that since the country’s legal system, judiciary and a democracy is one of the most stable in Africa, it would be absurd to send the case to the ICC.

The Ghanaian press has noted the degenerative implications of an ICC case, citing negative impact on foreign direct investment, the economy, and the depreciation of the currency.

The amendments define the crime of aggression in accordance with UN General Assembly Resolution 3314, Article 3 of which defines acts of aggression as: invading another state; bombing another state; blockading the ports or coastlines of another state; attacking the land, sea, or air forces, or marine or sea fleets of another state; violating a status of forces agreement; using armed bands, groups, irregulars or mercenaries against another state; allowing territory to be used by another state to perpetrate an act of aggression against a third state.

The ICC will have jurisdiction over the crime of aggression after it enters into force for 30 States Parties. The exercise of jurisdiction will require a decision from the Assembly of State Parties, which is to be taken after 1 January 2017.

‘Law 37 of 2012 on the Criminalisation of the Glorification of the Dictator’, meanwhile, prohibits “praising or glorifying Gaddafi, his regime, his ideas or his sons”.

The new legislation has drawn condemnation from Lawyers for Justice in Libya (LFJL) and Amnesty International. Amnesty International has called it “an eerie reminder of draconian legislation that was used to stamp out dissent during al-Gaddafi’s brutal four-decade rule”.

LFJL states: “These laws constitute breaches not only of Libya’s international commitments, including those as a signatory to the International Convention on Civil and Political Rights, but also to the Constitutional Declaration of 3 August 2011 through which the [National Transitional Council] derives its legitimacy. Further, through the unilateral enactment of such laws, in the absence of involvement or consultation with key stakeholders including civil society organisations representing various interests of the Libyan public, the NTC is seriously undermining its own legitimacy.”

For an interesting analysis of the controversial new laws, see Mark Kersten’s post on Justice in Conflict.

As Director of Widows for Peace through Democracy, what has been your main focus?

I am really extraordinarily privileged to work on one of the most neglected areas of gender and human rights. I work on widowhood issues: widowhood in developing countries, specifically countries in conflict and post-conflict scenarios where there are millions of uncounted widows and ‘half widows’ (wives of the missing). There is still so much to achieve; changes in government policies, awareness in the national communities, the UN, and all the international legal mechanisms. The issue of widowhood is not just a woman’s issue, it is an issue for the whole of society.

An important aspect of widowhood is its irrevocable negative impact on their children’s lives. The effect on the children of widows is terrible due to their mothers’ poverty because of their lack of inheritance, land rights and inability to access the justice system. These children are often withdrawn from school or never get the chance to attend it. The most at risk are the daughters of widows. The girls can be forced into prostitution because of poverty or may be married off when they are still children, going on to become young widows themselves. So this is not just a woman’s issue or a moral or welfare compassion issue, it is actually a huge economic and political issue. After all, the most valuable resource of any country is its young people, the future generation.

How did your career begin and what lead you into human rights?

I am 80 years old now and 60 years ago, when I was at Cambridge University, there was no such thing as a human rights course. Nobody even talked about human rights very much! I was never going to follow the conventional path of becoming a practicing barrister, solicitor or judge. I was always interested in the interface between law and society, law and sociology, and law and anthropology – the impact of law on the most disadvantaged people in society, particularly their access to justice.

I began at the Bar in the fifties, when it was a terribly difficult time for women. There was so much prejudice against women lawyers at the Bar in those days, and I wanted to be independent, not to have to live at home with my parents, so I left and slightly changed direction. I moved into advertising and television (which had just started). For a while I worked as a producer at Granada television, making programmes about social issues. I later started a degree in anthropology and, after I got married, I took a degree in social administration and policy at LSE.

At that time, Idi Amin had just kicked out the Ugandan Asians from Uganda and I started to work in this country for the coordination of the welfare of Ugandan Asians. I travelled to India and wrote the first report, called Stranded in India, about Ugandan Asians who were in India when their wives and children were in camps in the UK. Following the report I prepared for the UNHCR and the UK foreign and Home office, the government changed its policy and allowed into this country those Ugandan Asian husbands and sons.  The camps were closed, families reunited, and these hard-working people could start their businesses and support their dependents. I then joined the United Kingdom Immigrants Advisory Service as senior counsel working on immigration and asylum.  But it was as head of law and policy at IPPF (International Planned Parenthood Federation) that really started me thinking about the status of women.

What was it that sparked your interest in the particular field of widows’ rights?

I came across this issue, that nobody was ever looking at, by accident following the death of my husband twenty years ago. At that time, I was Director of Studies at the Royal Institute of Pubic Administration teaching judicial administration to Commonwealth magistrates. One of the magistrates from Malawi came to me and asked for help with a very sick baby. I managed to get a paediatrician at the hospital in Salisbury to admit them under his care. I invited the woman to bring the baby from Malawi to stay with me whilst the baby received treatment. She was the catalyst. She walked into my house straight from the plane and before she had even sat down she looked around my living room and said, “You mean your husband’s brothers let you stay here and keep all these things?” That triggered something – it rang a bell somewhere in my head.

A few weeks later, I was off to UCLA where I had been invited as a visiting professor to teach a course on law, women, development and health and while I was there I began to search in the huge UCLA library for anything written about widows, but there was absolutely nothing. At that time we were moving towards the fourth World Women’s Conference which was to take place in Beijing in 1995. With help from the Commonwealth Secretariat, I held the first international workshop on widowhood in Beijing and that started the process.

Do you have a vision of what you would like to achieve moving forward? What is the mission?

It was a case of, “What can we do?” Widows need to be represented nationally, regionally and internationally. Children have UNICEF and the Save the Children, refugees have UNHCR and prisoners have Prisoners of Conscience and Amnesty. But what about widows? So we set up an international organisation, which has gone through various stages. The organisation I now direct is called the Widows for Peace through Democracy. I suppose the real goal is to have a world where in no countries do widows suffer from stigma and marginalisation, are denied their basic rights, treated like chattels, are the poorest of the poor, their voices never heard and victims of degrading and harmful traditional practices. In some countries these practices really amount to torture.

One of our most important purposes is to support widows in countries where widowhood is a social death. To be able to deliver to them real training, not just training about their rights, because it is really their needs that are most important to them. How can they actually articulate their needs? We want to provide support and training which gives them the confidence to articulate those needs to governments, to be participants in decision-making committees and to even be in governments themselves. To be involved, particularly in countries coming out of conflict where, in the period of transition, there will be constitutional and legal reform and all sorts of other activities to do with truth and reconciliation, peace building and democracy building.

People tell me that I have achieved so much and that I put widowhood on the agenda and raised awareness, but I feel we have such a long way to go. I wish I was thirty years younger so I could do so much more. We have put it on the ladder, but it is right at the bottom and I want to see it further up. I want to see a really powerful organization representing widows internationally, which has a place at all the top tables.

Do you envisage any obstacles along the way?

We face two obstacles. Firstly, there is no reliable data or statistics – we know very little. That is a big obstacle. However, we have an incredible partner in Nepal, whose widow members themselves are filling the gap in data to map and profile. The other biggest obstacle, apart from no core funding of course, is that everyone in government and from development agencies, donors and the UN, all speak about women as if women are an homogenous group – but they are not; one of the most ignored and poorest sub-sect of ‘women’ are the widows and wives of the missing.

Have there been any experiences in your own life, from your professional career or personal life which you draw on for inspiration in this work?

People often ask about my own widowhood, but I can’t speak about it in the same way because I don’t suffer from any of this. Of course, one has grief and sometimes one is lonely, but I have a roof over my head and I have an education, so I could always continue to work and I am not stigmatized because I am a widow – nobody is calling me a witch.

There are many amazing women who inspire me, Nawal El Saadawi from Egypt, Noeleen Kaleeba from Uganda, Graca Machal, Aung San Suu Kyi – but there is one woman in particular. Her name is Lily Thapa and I first met her ten years ago at a meeting about widows in Delhi and I invited her to London to speak at the 20^th birthday of CEDAW. She is the CEO and founder of an extraordinary organisation (my partner in Nepal), called WHR-SWG (Women for Human Rights, Single Women Group). The reason she named it Single Women instead of Widows is because, as in so many countries in the region, the vernacular translation of widow means whore, sorceress or witch.

Lily was widowed when she was a young mother, with three very small boys. Her husband was a surgeon during the Gulf war and when he was killed there she had to suffer all the traditional mourning rites.  Her hair was cut off by her own mother, her nose-ring was torn out with pincers and her jewellery was smashed. Almost immediately, whilst the Nepal conflict was raging, she joined with five other widows and they began to work together to set up their widows organisation. Despite making herself unpopular with the Government, she worked across the country, including in Maoist villages. The WHR-SWG went on to establish shelters and training projects for widows escaping poverty and sexual abuse.

She is now very well known in the UN and in NGO circles. She has mapped and profiled 84,000 widows in 57 of the 76 regions of Nepal. Hers is one of the few NGOs sitting with the Government and Lily Thapa has persuaded the Nepalese to include the treatment of widows as one of the indicators for monitoring the implementation of UN Security Council Resolution 1325. She has helped 11 widows attain seats in the Nepalese Parliament; worked to change the law on pension rights, and convinced the Government to develop a national action plan on 1325. Lily started out in a country where she faced so much discrimination and stigma and she is now an international figure. I am so inspired by her and her achievements.

Where do you get your formidable energy?

Well I think that passion is essential to fuel you, and make you look and explore all around you – finding where you can bring people in to make you aware and to help you.

Widows are not simply victims, they are not simply poor, vulnerable and needy, they undertake key crucial roles as the sole providers for their families. In many countries you have old grandmothers looking after orphans and other dependents who have been wounded and traumatised by war.

Widows can be very effective agents of change if they are helped, and consulted. They must be informed and must be influential in the formation of policies – we want to see widows in the mainstream.

For further information:

Widows for Peace through Democracy

Women for Human Rights, Single Women Group