The Rwandan government announced a review of the “genocide ideology” law in April 2010. Amnesty International has welcomed this government initiative and this this report identifies Amnesty International’s concerns about the current legislation and its application in light of the Rwandan government’s review process.

Amnesty International suggests that although prohibiting hate speech is a legitimate aim, the Rwandan government’s approach violates international human rights law. Rwanda’s vague and sweeping laws against “genocide ideology” and “divisionism” under “sectarianism” laws criminalize speech protected by international conventions and contravene Rwanda’s regional and international human rights obligations and commitments to freedom of expression. The vague wording of the laws is deliberately exploited to violate human rights.

Prosecutions for “genocide ideology” and so-called “genocide ideology-related” offences were brought even before the law defining this offence was promulgated. People continue to be prosecuted for “divisionism”, under “sectarianism” laws, even though “divisionism” is not defined in law. Rwandans, including judges, lawyers and human rights defenders, expressed confusion about what behaviour these laws criminalize.

Amnesty state that these broad and ill-defined laws have created a vague legal framework which is misused to criminalize criticism of the government and legitimate dissent. This has included suppressing calls for the prosecution of war crimes committed by the Rwandan Patriotic Front (RPF). In the run-up to the 2010 elections, legitimate political dissent was conflated with “genocide ideology”, compromising the freedom of expression and association of opposition politicians, human rights defenders and journalists critical of the government.

To read the report entitled “Safer to Stay Silent: The Chilling Effect of Rwanda’s Laws on ‘Genocide Ideology’ and ‘Sectarianism” see here – Amnesty Report – Rwanda’s Laws on genocide ideology

Anyone wishing to attend should contact Julian Bradley at 9 Bedford Row, <julian.bradley@9bedfordrow.co.uk>, to register for a place.

Berry Chambers – Conference Poster

Duch’s verdict and sentencing

On July 26 2010, the Extraordinary Chambers in the Courts of Cambodia (ECCC) found Kaing Guek Eav, better known as Duch, guilty of war crimes and crimes against humanity, making him the first Khmer Rouge defendant to be brought to justice. Duch, who ran the infamous Tuol Sleng prison camp in Phnom Penh, is the only senior Khmer Rouge member, so far, to admit his guilt.

He was sentenced to 35 years in prison, shortened to 19 years because of time already served in prison and in compensation for a period of illegal detention by a military court in Cambodia.

The full judgment is available here. The dissenting opinion of Judge Lavergne is available here.

The verdict has prompted appeals from both the Co-Prosecutors and Duch’s lawyers, and has sparked worldwide opinion, analysis and debate.

Prosecutors seek to increase Duch prison sentence

The Office of the Co-Prosecutors had originally sought a 40-year sentence so it is of no surprise that they filed an appeal on the 16 August 2010.  The appeal states that the sentence handed down to Duch is “arbitrary and manifestly inadequate and … outside the range of sentences available to the Trial Chamber..” Prosecutors have identified three grounds for appeal arising from errors of law regarding sentencing discretion, cumulative convictions and enslavement.

Co-Prosecutors Official Notice of Appeal

ECCC Press Release

For further discussion, please see the links below:

Prosecutors seek tougher sentence for Khmer Rouge’s Comrade Duch – The Guardian

Cambodia genocide prosecutors to appeal ex-Khmer Rouge leader sentence  – Jurist.org

Duch’s Lawyers Appeal Conviction

Duch’s lawyers also filed an appeal before the Trial chamber on the 24 August 2010 against the single prison sentence of 35 years.  The appeal concludes by asking the Supreme Court chamber to set aside the Trial Chamber Judgment in its entirety and to acquit Duch.  Click here to read the full appeal.

Ahead of this appeal, Duch had recently appointed a new lawyer, Kang Ritheary to represent him.  His decision to dismiss his international co-counsel, Maitre Francois Roux, in early July after sending a letter to ECCC President Nil Nonn, resulted from his lack of confidence in the French lawyer.

Duch’s position has been inconsistent in the past.  In March 2009, he accepted responsibility and apologized for this conduct.  He admitted guilt and asked Cambodian people to condemn him to the “harshest punishment” for their sorrow and suffering.  Yet on the final day of trial, he asked for a full acquittal and release.  His Co-Defenders adopted differing stances during the closing arguments, Kar Savuth asking for acquittal and Roux for clemency.

Further discussion, please see:

Attorneys for Khmer Rouge torture prison leader appeal conviction – CNN

Former Khmer Rouge chief jailer appeals against conviction

- The Guardian

Duch sentencing raises questions of justice (or lack thereof)

As aforementioned, 67 year old Duch now faces just under 19 years in prison.  This sentencing has raised responses across a wide spectrum of opinion from human rights groups, court observers and the Cambodian and international media.

Some, particularly victims, condemn what is seen as an inadequate sentence.  Others, in particular the Cambodian Centre for Human Rights, congratulate the tribunal on delivery of the verdict and the good example that it sets for domestic courts.  The reduction in sentence due to illegal detention in Cambodia is seen as a positive thing and a reminder of the “universality of human rights.” This is particularly significant in a country long mired by human rights abuses in the justice system.

Human Rights Watch have called it “an important step in the search for justice for the victims of the Khmer Rouge” and significant in that there is finally accountability for Duch’s crimes.  One senses overall that despite its shortcomings and criticisms, the verdict is symbolic and an important milestone on the road to closure for Cambodia.

To read some of the reactions, click the links below.

Cambodian Center for Human Rights

Human Rights Watch

Filmmaker Thet Sambath

Further opinion and analysis:

Making Justice relevant for all Cambodians – The Phnom Penh Post

More Justice for Cambodians – The Phnom Penh Post

Anger in Cambodia over Khmer Rouge sentence – New York Times

Khmer Rouge chief Jailer sentenced for War Crimes – The Guardian

16,000 deaths, 19 years in jail – fury greets sentence for Pol Pot’s executioner – The Independent

Do we need a Khmer Rouge Tribunal? – Council on Foreign Relations

Comrade Duch and the Killing Fields – Wall Street Journal

Justice denied for Cambodians – New York Times

Nic Dunlop Article in The Independent

Amid the debate swirling around the Duch sentencing, Irish photojournalist and author Nic Dunlop has written an interesting article regarding his discovery of Duch in the Cambodian jungle in 1999.  Click here for the article.

Duch verdict to be distributed nationally

On 5th August, the ECCC began production of 5,000 printed copies of the entire Duch judgment and 17,000 copies of the judgment summary in Khmer language.  The publications are to be distributed to the public free of charge.  Mr. Reach Sambath, Head of Public Affairs at the ECCC stated that the purpose is to ensure that Cambodians understand the genuine importance of the trials and to make sure that the focus is not solely on the length of prison sentence handed down to Duch.  The official press release is available here.

The verdict was also formally recognized at a verdict distribution ceremony at Kandal Provincial Court, neighbouring province to Phnom Penh.  Mr. Huot Heang, a judge, said that he was optimistic that the printed copies of the verdict would play an important role in re-enforcing the reform of Cambodia’s justice system and would serve as an important reference point for better understanding of the judicial system and improved case handling.  The press release is available here.

Case Number Two:

Genocide Indictment sought in Case 002

On the 16 August, the Co-Prosecutors filed their Final Submission in Case 002 with the Co-Investigating Judges.  In the submission, they have formally requested the indictment of Nuon Chea, Ieng Sary, Khieu Samphan and Ieng Thirith on charges of genocide, crimes against humanity, war crimes, and violations of the 1956 Cambodian Penal Code.  The document is an extensive summary of the relevant facts, 931 pages, in support of the Co-Prosecutors’ allegations, which are legally characterised by both the type of crimes committed and the nature of the Charged Persons’ participation in those crimes.

The official press release is available here.

The statement from Co-Prosecutors is available here.

Co-Investigating Judges release the first decisions regarding admissibility of Civil Parties in Case 002

Co-Investigating Judges Marcel Lemonde and You Bunleng have begun to issue decisions regarding the large volume of Civil Party applications in the second case file facing the ECCC.  There have been 3988 applications to join Case 002 as Civil Parties.  To be admissible as Civil Parties, victims must show that they have suffered personal injury directly connected to one of the specific facts that the Co-Prosecutors have sent for investigation in their introductory and supplementary submissions.

To see the official press release, please click here.

]]> http://www.internationallawbureau.com/blog/?feed=rss2&p=1686 0 http://www.internationallawbureau.com/blog/?p=1682 http://www.internationallawbureau.com/blog/?p=1682#comments Sun, 29 Aug 2010 13:00:11 +0000 Deirdre Montgomery http://www.internationallawbureau.com/blog/?p=1682

In a Decision rendered during the court recess, ICTY President  Robinson, denied early release to Momčilo Krajišnik. Krajišnik, who has been serving his sentence in the UK since September 2009, would have been eligible for release there on 2 April 2010, having served half of his 20 year sentence (including time served during trial and appeal proceedings). Judge Robinson’s finding was that:

“While Mr. Krajisnik has displayed some evidence of rehabilitation, I am of the view that there remain significant factors that weigh against granting him early release. Mr. Krajisnik’s crimes are of a very high gravity, involving a widespread displacement of the non-Serb population in Bosnia and Herzegovina, which caused great suffering. Moreover, in respect of the requirement that the President shall take into account the treatment of similarly-situated prisoners, the practice of the Tribunal is to consider the eligibility of a convicted person only after he has served two-thirds of his sentence; therefore, the fact that Mr. Krajisnik has only recently completed serving half of his sentence does not weigh in favour of his early release.”

Two Week Adjournment in Karadzic Trial

On Friday last, the Trial Chamber granted a two week adjournment in the Karadžić Trial. This break in proceedings is to give the Accused time to review new disclosure by the Prosecution – audio and video cassettes and CDs seized from the Belgrade residence of Bosiljka Mladić, wife of General Ratko Mladic.  In granting the motion for an adjournment, the Chamber found that:

There is no suggestion made by the Accused that the Prosecution acted inappropriately or with any delay in its disclosure to him of the cassettes and CDs, which are discussed in the Motion. Indeed, he acknowledges that there is no “fault” on the part of the Prosecution in the recent discovery of the material seized from the Mladić residence. Nonetheless, the fact remains that a substantial quantity of material, which may include potentially exculpatory evidence, was provided to the Accused on 4 and 6 August 2010. While a detailed index to that material prepared by the Serbian authorities may have been provided to the Accused, which would suggest which tapes he should initially focus his attention upon, such an index cannot substitute for his own detailed review of all the material (no doubt also being conducted by the Prosecution) so that the Accused can be satisfied as to the nature of its content and whether it contains anything exculpatory or otherwise important for his defence.

…..

The Chamber is also not satisfied that continuing with the trial proceedings, and allowing the Accused to later recall certain witnesses for further cross-examination following his review of the seized material, if necessary, is sufficient, in this instance, to ensure his fair trial rights. Moreover, it will not be, in practical terms, conducive to the smooth conduct of the trial.

Investigation into Prosecution Misconduct Ordered in Seselj Case

The Trial Chamber in the Seselj Case has ordered the appointment of an amicus curiae to “investigate possible intimidation or pressure, albeit indirect, exerted by certain investigators for the Prosecution in this case and to investigate techniques used by these investigators to obtain preliminary written statements from witnesses, particularly insofar as concerns” certain persons who have testified or may potentially testify.

The order comes about as a result of complaints made by the accused, including a motion for contempt against prosecutors Carla Del Ponte, Hildegard Uertz-Retzlaff and Daniel Saxon, of 23 March 2007. A decision on that motion had been stayed until the end of the Trial. The Chamber now reconsiders that stay, noting that since the trial began, certain witnesses, when testifying before the Chamber, referred to pressure or to attempts to intimidate to which they were subjected by investigators for the Prosecution as well as to irregularities during their preliminary interviews by the Prosecution.

As outlined in the Decision, the Chamber finds that the testimony of these witnesses, and other material received since the start of trial, constitute new facts that justify reconsideration of the Stay and that it is necessary for the Chamber to be seized sua sponte of the Motion for Contempt at this stage of the proceedings, without waiting for proceedings to conclude, out of concern for the expeditious conduct of the trial and in order to have a clear glimpse of the grievances alleged by the Accused, based on the findings of the amicus curiae.

Closing Arguments Next Week in Gotovina et al

Closing arguments in the case of Ante Gotovina, Ivan Čermak and Mladen Markač will he held from Monday 30 August to Thursday 2 September. The Prosecution has been allotted six hours to deliver its closing arguments, and the three Defence teams will each have two and a half hours. The Prosecution will then have one hour for rebuttal arguments, and the Defence will have one hour for their rejoinder.

All images courtesy of ICTY website.

]]> http://www.internationallawbureau.com/blog/?feed=rss2&p=1677 0 http://www.internationallawbureau.com/blog/?p=1674 http://www.internationallawbureau.com/blog/?p=1674#comments Tue, 17 Aug 2010 10:52:45 +0000 Deirdre Montgomery http://www.internationallawbureau.com/blog/?p=1674 According to Bangladeshi media, two detained leaders of Jamaat-e-Islami have petitioned the High Court to revoke the first amendment to the constitution that enabled the establishment of the Bangladesh International Crimes Tribunal (ICT). They are also also seeking the repeal of some sections of the International Crimes Tribunal Act, as inconsistent with the constitution.

The ICT was established to try those accused of committing war crimes during the 1971 liberation war, in which Bangladeshi forces gained independence from Pakistan. Jamaat are suspected of having collaborated with Pakistani forces during the war.  Arrest warrants for four Jamaat leaders  were issued in July, they have since been arrested and appeared before the ICT on 2 August 2010 on charges of committing crimes against humanity.  They are assistant secretaries general Mohammad Kamaruzzaman and Abdul Quader Molla, Jamaat chief Matiur Rahman Nizami and secretary general Ali Ahsan Mohammad Mojaheed. They are being detained until further order from the court.

]]> http://www.internationallawbureau.com/blog/?feed=rss2&p=1674 0 http://www.internationallawbureau.com/blog/?p=1670 http://www.internationallawbureau.com/blog/?p=1670#comments Mon, 16 Aug 2010 14:45:46 +0000 Cathy Mac Daid http://www.internationallawbureau.com/blog/?p=1670 Monitor – Khmer Rouge Trials - Based in Phnom Penh, Cambodia

Project Description

Open Society Justice Initiative (“Justice Initiative”) has undertaken capacity building, training, advocacy, monitoring, and outreach, and other work in relation to the Extraordinary Chambers for the period of Democratic Kampuchea process since 2005.

Police, prosecutorial and judicial abuses in Cambodia have periodically drawn strong expressions of concern from the international community in the context of efforts to strengthen the rule of law in the country. Nonetheless, the main focus of international attention in recent years has become the Extraordinary Chambers of the Courts in Cambodia (ECCC) to prosecute Khmer Rouge (KR) leaders for massive crimes committed under their rule from 1975 to 1979. Following a 2003 agreement between the United Nations and the Royal Government of Cambodia, a trial process for senior leaders and those most responsible for the crimes of the Khmer Rouge era has been established.

The atrocities that were committed in Cambodia during the period of Democratic Kampuchea represent one of the great unredressed crimes of the 20th century, and a source of ongoing trauma to Cambodian people and society. The ECCC was established in the courts of Cambodia to try those most responsible for those crimes represent a crucial element in the process of providing redress and assisting Cambodia in addressing the legacy of these crimes. At the same time, the Cambodian government and the officials of the ECCC are undertaking this enormously important task with few resources and in a short time frame, even as the ECCC presents itself as but one part of the larger problem of justice and accountability in Cambodia. These factors make coordination, monitoring, and high-quality input at every stage important.

To this end, the Justice Initiative, is engaged in work to strengthen the ECCC and to increase its potential for contributing productively to the longer-term aim sought by Cambodians, namely, the development of a culture of accountability and the rule of law in their country. We have been the sole full time monitor of the ECCC and court officials, donors, and the NGO community have indicated that our monitoring role is indispensable to ensuring the integrity of the trial process.

Project Background

Since 2003, the Open Society Justice Initiative has been present on the ground in Cambodia to monitor developments, raise local and international awareness about the court, and provide technical assistance in the lead-up to the court’s opening. After long delays and troubled negotiations, the court, imperfect as it is, officially began operations in July 2006. Five individuals were subsequently arrested, the first trial was completed in November 2009, and the Judgment and Sentence handed down on July 26, 2010. Approximately thirty thousand people traveled to the court to witness some part of the proceedings, and countless more have tuned into radio and TV feeds. There is clearly a great interest among many Cambodians in the work of the ECCC.

This impressive progress, however, is set against a backdrop of deep administrative and operational problems. In 2007, the Justice Initiative brought to light serious allegations of corruption at the court. It has been a vocal advocate for much needed changes, including protections for whistleblowers. The court also suffers from a lack of credibility because of evidence of political interference in decisions about who will be prosecuted. Outreach efforts to the Cambodian people, while improving, have been lacking. Limited transparency about the work of the court is a problem. Journalists wanting to report on the court’s work have had difficulty getting information from the court or accessing what they need to cover its proceedings. The court continues to search for additional funds from the international community to finish its work, which is expected to last several more years.

By monitoring and performing advocacy around these and related issues, the Justice Initiative hopes to contribute to the success of the court in meeting its goals.

Responsibilities

Based in Phnom Penh and reporting to the Senior Legal Officer, International Justice, the Monitor–Khmer Rouge Trials performs the following tasks:

1. Closely monitors the pretrial, trial, and appeals processes and provides regular (at least weekly) reports on the process and progress of the KR trials to the Justice Initiative, and provide regular reports for the public at large. As appropriate, prepares confidential reports for the UN, ECCC donors or the court itself;

2. Liaises with all organs of the Tribunal to assess needs that the Justice Initiative or others could fulfill to help ensure the Tribunal fulfills its mandate;

3. Liaises with, and provides accurate information to, NGOs, donors, the UN, and journalists monitoring the Tribunal, in Phnom Penh and elsewhere in Cambodia, and occasionally in New York and Washington DC, as required;

4. Writes op-eds or legal commentary on the trials, to educate the public and the international community about its performance, needs, strengths and shortcomings, as appropriate;

5. Writes at least quarterly updates or thematic reports on the ECCC, both for donors and the public;

6. Provides continuous guidance to the Justice Initiative and others, as appropriate, on the integrity of the trial process, with particular attention paid to corruption and independence issues;

7. Performs other supportive efforts as required and mutually agreed;

8. Coordinates with and supervises other Justice Initiative related staff in Cambodia, including providing assistance with Technical Advisory visits and oversees protection issues;

9. Oversees the operations, including financial reporting, and other work of the Phnom Penh office;

10. Engages in advocacy, outreach, and training on the Khmer Rouge Trials as appropriate; and

11. Performs other duties as requested by the Senior Legal Officer or Executive Director.

Qualifications

Experience working in or with other international/hybrid tribunals;

Strong familiarity with criminal law and procedure;

Ability to interact with diplomats, Tribunal officials, NGOs, journalists, and victimized communities in a professional, discreet, diplomatic and tactful manner;

Effective communication skills with all components of the Tribunal, including Registry, Chambers, Prosecution, Defense, and Administration;

Professional journalistic writing and editing experience;

Superb organizational capabilities;

Cultural sensitivity

Fluency in English with excellent written language skills; Khmer language skills a plus but not a requirement;

High level of motivation and ability to work both independently and with others;

Integrity, professional discretion and ability to handle confidential matters.

Salary: Commensurate with experience with full benefits.

Anticipated Start Date: November 1, 2010

To Apply

Please email resume, writing sample and cover letter with salary requirements and contract details of 3 references (preferably previous supervisors) to applications@admingroup.hu , including “Monitor – OSJI” in the Subject title.

Application deadline: September 1, 2010.

New legal database launched to enhance protection for war victims

Geneva (ICRC) – To mark the 12 August anniversary of the Geneva Conventions, the International Committee of the Red Cross (ICRC) is launching a new database of the organization’s major study of customary international humanitarian law.

Developed in association with the British Red Cross, the database is designed to be used as a legal reference in international and non-international armed conflicts, including by courts, tribunals and international organizations. As one of the principal sources of international humanitarian law, customary law enhances the legal protection of victims of armed conflict.

“The majority of armed conflicts are non-international, and current treaty law doesn’t regulate them in sufficient detail. Customary law therefore provides men, women and children caught up in such conflicts with essential protection. Respect for customary law reduces the human cost of conflict,” said Jean-Marie Henckaerts, the ICRC’s head of project for customary law. “The new database is a significant step towards ensuring that the rules of customary international humanitarian law and the practice underlying them are easily accessible.”

Customary international humanitarian law is a set of unwritten rules derived from a general, or common, practice which is regarded as law. It is the basic standard of conduct in armed conflict accepted by the world community and is universally applicable. In contrast to treaty law, it is not necessary for a State to formally accept a rule of custom in order to be bound by it, as long as the overall State practice on which the rule is based is widespread, representative and virtually uniform.

“The formation of customary international humanitarian law is a dynamic process,” continued Mr Henckaerts. The new database provides a means of following developments in the application and interpretation of the law. It facilitates reflection and discussion and contributes to further clarification of the law.

The new customary international humanitarian law database features 50 per cent more content than the original study – a printed version would run to more than 8,000 pages. Divided into two parts, the first includes 161 rules which the original study assessed to be of customary nature. The second part contains the practice on which the conclusions in part one are based. The database offers practitioners and academics easy access to the rules of customary international humanitarian law identified in the ICRC study and gives them the opportunity to investigate underlying practice by means of three search parameters: subject matter, type of practice and country.

The database also contains new international materials, in particular international case law and United Nations material up until the end of 2007. As the formation of customary international humanitarian law is an ongoing process, regular updates, including of national practice, will be provided on the basis of contributions by ICRC delegations and National Red Cross and Red Crescent Societies, which will be processed by a team of lawyers based at the Lauterpacht Centre for International Law, University of Cambridge.

Since its publication in 2005, the ICRC study of customary international humanitarian law has been used as a legal reference in connection with international and non-international armed conflicts such as those in Israel and the occupied territories, Lebanon, Iraq, Afghanistan, Colombia and Sri Lanka. The ICRC uses the study in its dialogue with parties to conflict in order to identify rules by which combatants or parties must abide. The study has also been used by the United Nations, international and mixed criminal courts and tribunals, national courts and non-governmental organizations. For example, on the basis of practice collected by the study, the Special Court for Sierra Leone concluded that the recruitment of child soldiers is a war crime in non-international armed conflicts, thus enhancing the protection for children against being recruited and used as child soldiers.

“In line with its mandate, the Office of the Prosecutor has requested the Lebanese authorities to provide all the information in possession of Secretary General Hassan Nasrallah,” the Special Tribunal for Lebanon stated in a news release.  The Office of the Prosecutor also invited Mr. Nasrallah to “use his authority to facilitate its investigation.”

For the STL press release please see here – http://www.stl-tsl.org/sid/195

Rule 51 is alarming:

51. (1) The onus of proof as to the plea of ‘alibi’ or to any particular fact or information which is in the possession or knowledge of the defence shall be upon the defence.

We welcome further comment from others on these provisions.