CAMBODIA: ANOTHER MASS MURDER SUSPECT ESCAPES JUSTICE

News of the death of Ieng Sary, 87, one of the high level officials of the country’s deposed Khmer Rouge regime, has been met with a range of responses. The responses have broadly fallen into two categories with some ecstatic that Sary has now met his maker and will accordingly be judged for his hand in the pogroms committed in his time on earth and many who are disappointed that Sary will not now face justice as well as his accusers in the courts of law.

Ieng Seng served as foreign minister in the 1970s and at a time at which the country’s leadership was headed by the murderous Pol Pot whose dictatorship was responsible for the killing of between 1.7 and 2.5 million people. In the aftermath of the pogrom, the United Nations (U.N.), with the agreement of the Cambodian government, created the Khmer Rouge Tribunal, now officially referred to as the Extraordinary Chambers in the Courts of Cambodia, with the aim of trying senior and the most culpable members of the regime. The Tribunal’s processes are overseen by locally qualified and international judges working hand in hand to ensure the achievement of objectives placed within its remit, i.e. facilitating access to justice for victims of crimes against humanity, war crimes and genocide committed by the regime between April 1975 and January 1979.

Elisabeth Simmoneau Fort, a legal representative of some of the victims echoed the sentiments voiced by many that Sary’s death is a big blow to the authorities’ efforts which are aimed at bringing those responsible for the mass crimes to book. Ms Fort stated: “For the victims, this death narrows the scope of the trial and limits their search for truth and justice.” She added: “We can say that by death, Ieng Sary escapes justice.”

Sary’s death comes against the background of claims that the Cambodian government has impeded the Tribunal’s efforts by repeatedly interfering in its work and the rather shambolic conviction rates of the Tribunal constitutes, in the writer’s view, sufficient evidence to buttress this. Thus to date, only one high ranking official of the regime Kaing Guek Eav, famously known as “Duch” has been convicted for his hand in the massacres. Compounding matters further is the fact that there are only two surviving high ranking members of the regime, the majority being deceased and one having been declared mentally unfit to stand trial. With the twin evils of government interference and lack of funding impeding the process one finds it difficult to see how an ending which involves the conviction and subsequent imprisonment of those in custody will ever be achieved.

For reasons of expediency perhaps the cases should be transferred to a neutral country, possibly within the area in which Cambodia is located, appointed by the U.N. as this may rid the issue of government interference which is seen as a major stumbling block in the way of the Tribunal. While many call for increased funding of the Tribunal, one struggles to see how this would result in speeding up the process as it is the interference in the first place which has resulted in the gridlock currently being experienced by the Tribunal, and as a consequence, the Tribunal’s costs have risen accordingly. The Tribunal is clearly not short of funding, what with a reported $175 million having been spent in the five and half years from mid-2006 when it was founded to the end of last year. The writer’s sentiments are seconded by Surya Subedi, the U.N.’s special rapporteur on human rights in Cambodia in last week’s speech in Geneva, Switzerland. To sound-off, Subedi, in urging the Tribunal to exhibit some urgency in dealing with the trials, asserted: “We owe it to the surviving victims of the Khmer Rouge, the families of the victims, and the whole of Cambodian society that continues to suffer from the impact of the Khmer Rouge.” Admittedly, the writer couldn’t have highlighted the significance of the trials to the Cambodian people any better than Subedi did.

NIGERIA: CRIMES AGAINST HUMANITY COMMITTED BY BOTH SIDES, HUMAN RIGHTS WATCH CLAIM

Reports by one of the leading global human rights organisations, Human Rights Watch, that at least 2,800 people have been killed since the onset of the Boko Haram-led insurrection in the West African country of Nigeria are evidence of the scale of the humanitarian tragedy currently pervading Northern Nigeria.


In its Report, the organisation stated that both the Nigerian security authorities and the militant group were complicit in the commission of crimes against humanity. According to Human Rights Watch some of the attacks carried out since the commencement of the conflict bore the characteristics of “deliberate acts leading to population ‘cleansing’ based on religion or ethnicity”. In case the participants in the conflict need to be reminded, offenders charged with crimes against humanity can be prosecuted before the International Criminal Court (ICC) in The Hague.


The Report attributes the killings of Muslim clerics critical of the group’s activities and innocent Christians to Boko Haram and at the same time blames the Nigerian authorities for “physical abuse, secret detentions, extortion, burning of houses, stealing money during raids, and extrajudicial killings of suspects”. Although the leadership of Boko Haram is yet to respond to the conclusions of the report, the government, via its spokesman Lieutenant Colonel Sagir Musa, denied that it had been involved in the ‘culture of impunity for violence’ which the report imputes to it. Lieutenant Colonel Musa averred: “There is no established or recorded case of extrajudicial killing, torture, arson or arbitrary arrest by the JTF (Nigeria’s joint military and police taskforce) in Borno state”.


Followers of global affairs and passive observers alike will note that the Islamist sect has waged a three-year long campaign against the government with the aim of establishing an Islamic state and in effect seceding from the country. Boko Haram are also rumoured to be backed by Somalia’s Al-Shabaab militia and Al-Qaeda who have of recent successfully made inroads – see Mali and Mauritania – into the Western region of Africa. Boko Haram’s notoriety and initial successes were of such significance that a United States Congressional Panel was established to address the threat posed by the group.


The government’s initial lackadaisical and disjointed attempts at dealing with the menace have now been replaced with a joint army and military crackdown commensurate with its opponent’s might. It has successfully conducted raids on areas within the northern part of the country, the region predominantly populated by Nigeria’s Muslims and which is effectively the group’s stomping ground. The group’s bases have been routed, its fighters arrested and some of its figureheads killed following the reinvigoration of the government’s campaign against the militancy. The killing of the group’s spokesman Abu Qaqa by the authorities in a gun battle last month against the authorities was just the news which the country’s beleaguered leader needed to placate critics who have lambasted the lack of urgency he has shown in his handling of the situation.


The Nigerian government at least acknowledges that military engagement on its own will not be sufficient to usher in the peace and tranquillity which previously reigned in the now tumultuous region of Northern Nigeria. To this end it has attempted to engage Boko Haram by way of negotiations in order to achieve an impasse in the dispute. However, Boko Haram’s continued demands for the full implementation of Sharia law in the whole of Northern Nigeria has put paid to hopes that a non-military solution to the troubles can be achieved in the circumstances. Aside highlighting the human tragedy pervading in the warring region at present, the Report does well to remind the protagonists in the conflict of the accountability which awaits them at the International Criminal Court after the war has been won and lost.

SUDAN: THE ARAB SPRING’S LATEST VICTIM?

Protests continued in the North African country of Sudan in the past week leading observers to pronounce that the Arab Spring may be about to claim another victim being the Sudanese Government.

The protests began about two weeks ago following the Government’s imposition of harsh austerity measures which have seen the average man on the street and the most ardent of the government’s supporters raise their voices in protest. The Government’s hands have somewhat been forced by its conflict with neighbouring South Sudan – developments in this regard have been addressed extensively by 1worldinternational – which has resulted in a significant drop in its oil revenue in a country where oil is the main source of revenue.

Both countries have been in a state of ‘semi-war’ over the last few months following a disagreement over oil export fees which Sudan expected to receive from South Sudan for transporting oil via pipeline laid in the Sudan. South Sudan subsequently shut down all oil production which has severely paralysed both countries’ economies since January. In addition, spiralling inflation rates for food and goods have also exacerbated matters in the Sudan and this is expected to worsen in the coming weeks and months. Also, sanctions imposed by the U.S government and corruption have compounded the worsening economic crisis.

The country’s Finance Minister Ali Mahmoud has shot down any hopes that the austerity measures could be reversed by asserting that it was imperative that the nation’s $2.4bn deficit was redressed. In a press conference with the media last week Mahmoud stated: “If international oil prices go up, we'll increase fuel prices. We will not retreat from the decision to lift the subsidies."

As expected, the President Omar Hassan al-Bashir-led government’s response has so far replicated that of regimes ousted by mass revolt during the Arab Spring. The use of teargas and the might of the Police have so far been employed in order to quell the protests. Several activists have also been arrested including the leaders of human rights groups and senior members of opposition parties. The protests, which initially originated in mosques and university campuses located in the Sudanese capital city of Khartoum, has worryingly for the government spread to regional cities.

Al-Bashir who has headed the ruling National Congress Party since 1989 has unsurprisingly batted away suggestions that his government may be toppled by the populist fervour which has seen to the recent overthrow of governments in North Africa and the Middle East. Al-Bashir, who has also been indicted by the International Criminal Court (ICC) on counts of war crimes and crimes against humanity in Darfur, has labelled the protesters as enemies of the nation and called for the country’s citizens to resist the protesters’ calls for revolt.

Although protests of this scale against the government are unprecedented, observers generally do not consider that the current protests have the capacity to morph into anything similar to those which toppled the Tunisian, Libyan and Egyptian governments amongst others. Needless to say stranger things have happened and the said observers, one is certain, will happily eat their words if the reverse proves to be the case.

SIERRA LEONE: JUSTICE FINALLY CATCHES UP WITH THE WARLORD CHARLES TAYLOR

The long running saga otherwise known as the trial of the former Liberian warlord and President Charles Taylor culminated in a verdict which many anticipated since the commencement of proceedings five years ago. Last week the UN-backed Special Court for Sierra Leone in The Hague concluded that Taylor had aided and abetted war crimes committed by the Revolutionary United Front (RUF) rebels during the course of the Sierra Leone civil war between 1991 and 2002.


Taylor's Charge Sheet

Taylor was convicted of 11 counts of war crimes and crimes against humanity. The specific charges made by prosecutors against Taylor included acts of terrorism, murder, violence to life, murder, rape, sexual slavery and violence, outrages upon personal dignity, cruel treatment, other inhumane acts, use of child soldiers, enslavement and pillage. Taylor is expected to be sentenced later in May of this year although one anticipates an appeal from the ever indignant defendant who continues to maintain his innocence.

The court also ruled that Taylor, 64, had provided weapons, food, medical supplies, fuel and equipment to rebels in Sierra Leone who were directly responsible for committing the crimes on the ground. Perhaps, of surprise to observers was the finding by the trial chamber, of course conveyed by its Presiding Judge, Richard Lussick, that Taylor did not instigate the crimes. In return for the arms and ammunition provided by Taylor, the rebels furnished Taylor with blood or conflict diamonds. One recalls that the matter of “blood diamonds” took centre stage and almost threatened to divert attention from the crux of proceedings when British model Naomi Campbell was summoned to the court to give evidence regarding diamonds allegedly received as a present from Taylor.


Witness Testimonies and Evidence

Evidence heard during the trial read like scenes out of horror movies with witnesses recounting numerous and gruesome incidents of rape in view of the public, enslavement, and people being burned alive, beheadings and disembowelling, amputations and mutilation. The signature attack of the rebels during the conflict was the cutting off above the hand of their victims, commonly known at the time as ‘long sleeves’ or above the elbow, also known as ‘short sleeves’. The Court surmised that the sole purpose of these atrocities was to instil terror in the civilian population.


The Special Court for Sierra Leone

The Special Court for Sierra Leone was founded in 2002 and was accorded the rather unsavoury task of bringing the perpetrators of atrocities committed during the 11-year civil war to justice. The Court has so far been successful at fulfilling its remit of bringing to justice individuals which include feared RUF rebels Issa Hassan Sessay and Augustine Gbao to justice.


Global Reaction

The conviction of Taylor has been welcomed by human rights organisations, world governments, as well as victims and survivors of the atrocities. White House spokesman Jay Carney, in the aftermath of the conviction, said: "While there is no way fully to redress the suffering and loss of those who were killed, tortured, raped, and enslaved in the service of Taylor's criminal schemes, we are hopeful that today's ruling will help to dissuade others who might follow in his footsteps”.

“Taylor's conviction sends a powerful message that even those in the highest-level positions can be held to account for grave crimes," added Elise Keppler, senior counsel for Human Rights Watch, in a statement. Touchingly Halimatou Jalloh, whose sister was raped and killed by the rebels was spotted by Reuters reporters in the Sierra Leonean capital, Freetown, holding a sign with the words: “Orphans, widows, widowers, rape victims, amputees, and all the war affected, wipe your tears as the dawn of justice has come." Jalloh’s statement couldn’t be more poignant in the circumstances as it succinctly encapsulates the feelings of all those directly and indirectly affected by the Taylor’s deeds.


The Future

One hopes that the conviction of Taylor, once the world’s third most wanted man, will leave individuals of his ilk quaking in their boots, from Syria’s President Bashar al-Assad to Sudan’s Omar al-Bashir. Last year the International Criminal Court (ICC) arrested former Ivory Coast president Laurent Gbagbo, who is charged with individual responsibility on counts of crimes against humanity, murder, rape and other forms of sexual violence, persecution, and other inhuman acts. Gbagbo currently awaits his day in a court which is likely to arrive at the same verdict handed down at the conclusion of Taylor’s trial. The victims and survivors of the brutal war which left 50,000 people dead will sleep easier from this point on, but the scars imprinted by the acts of the soon-to-be-jailed criminal will unfortunately be difficult to erase.

GUATEMALA: HUMAN RIGHTS VIOLATORS BROUGHT TO JUSTICE A DECADE AFTER CIVIL WAR

A few months ago, 1worldinternational published a feature on the Argentinean Generals who had been made to face justice decades after their involvement in crimes against humanity committed during the darkest period of the country’s history. The same fate has befallen military officers in Guatemala who presided over alleged crimes against humanity and genocide committed mainly against the country’s indigenous Mayan populace.

The UN Truth Commission set up in the aftermath of the country’s 36-year civil war which lasted from 1960 to 1996 estimates that 200,000 people were killed and/or are still missing since the civil war. The country with a population of 13 million and second only to El Salvador as Central America’s most populated country comprises mainly of indigenous Mayan Indians.

During the ‘dark period’, the country’s army was engaged in a war against left-wing guerrillas who comprised mainly of individuals of Mayan origin. As a result, the government endorsed death squads and paramilitaries akin to the Sudanese government’s use of the Janjaweed in Darfur in its attempts to squash the guerrillas and suspected collaborators. In fact the UN backed Commission for Historical Classification also surmised that Guatemalan security forces were behind 93% of all human rights atrocities which took place in that period and that 83% of the victims of the crimes were Mayans.

The worst of the human rights violations including rape, wanton executions and massacres of whole villages are said to have occurred during the rule of Generals Efrain Rios Montt and Oscar Meja Victores between 1970 and 1983. Survivors of the civil war welcomed last week’s conviction of five right-wing paramilitaries (Eusebio Grace, Julian & Maria Acoj, Santos Rosales, Lucas Tecu) and their subsequent sentencing to a total of 7,710 years in jail for their role in a 1982 massacre in the village of Plaza de Sanchez. The sentence is largely symbolic as the maximum term served under Guatemalan law is 50 years. Four of those individuals were members of a government-sponsored militia and the fifth was a former army intelligence officer.

These latest convictions follow the earlier conviction of a former Guatemalan soldier, Pedro Pimentel Rios, who was sentenced to 6,060 years in prison for his role in the massacre of 201 people in the village of Dos Erres during the brutal 36-year civil conflict. Amnesty International, for long a solitary voice in advocating the bringing to justice of the perpetrators of the mass crimes has welcomed the latest convictions. Sebastian Elgueta, Amnesty International’s Central America Researcher, said: “slowly but surely, justice is beginning to prevail for these horrendous crimes that have hung over Guatemalan society for three decades.” He continued “each new verdict erodes the long entrenched impunity in the country and the authorities must continue to ensure that the thousands of victims and their relatives are given access to justice and full reparation as well as the truth about what happened.”

General Efrain Rios Montt for his own part in the civil war faces charges of genocide and crimes against humanity following the Guatemalan court’s recent revocation of an amnesty granted to Montt by his successor. General Victores on the other hand was ruled unfit to answer to charges of genocide as a result of a stroke suffered recently. Despotic governments around the world will do well to monitor the developments in Guatemala not least because of the message the recent convictions send to the world, that being that as was also the case in Argentina, justice delayed is not justice denied.

PART 1:- HUMANITARIAN INTERVENTION: AN EVALUATION OF THE CASE FOR THE FORCIBLE REMOVAL OF REPRESSIVE REGIMES UNDER INTERNATIONAL LAW

While the notion of ‘humanitarian intervention’ was not explicitly recognised and addressed by the United Nations Charter, some have argued that the concept of international peace and security appears to have acquired meaning beyond traditional collective security, to one in which ethnic cleansing, genocide, breaches of human rights, as well as grave breaches of humanitarian law, including those encompassed within a state's own borders are considered parts of the security fabric.

This article therefore intends to examine in some detail whether contemporary international law imposes a duty on states to intervene in a third state such as Syria where mass crimes including crimes against humanity or war crimes et al are being perpetrated, although within the confines of the United Nations legal regime. The article will address this matter over two parts with the concluding part published next week.

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INTRODUCTION

The UN General Assembly on the legality of intervention once recognised that: "No state or group of states has the right to intervene, directly or indirectly in the internal or external affairs of any other states...all forms of interference or threats against the personality of the state or against its political, economic or cultural elements are in violation of international law”. It is said that signatories to the UN Charter have delegated their right to unilateral enforcement to the UN, save on the grounds of self-defence where states are allowed to respond to the attack in the circumstances. The Security Council is thus endowed with the responsibility of undertaking executive action in order to prevent, punish a threat to or breach of the peace or act of aggression. The difficulty in ascertaining when an armed conflict constitutes or potentially constitutes a 'threat to peace and security' within the meaning of the Charter is readily apparent in many episodes that have confronted the international community since the adoption of the Charter. In the context of humanitarian intervention, the United States relied on this argument on numerous occasions over the years, most notably in Grenada and Panama. Although some identify a gradual evolution of customary international law permitting intervention by states in the event of humanitarian catastrophe, the Charter's text will undoubtedly be compromised in that event. Against this background, while the removal of, for example, the Syrian regime might be noble and ethical its legality will however be uncertain.


THE UNITED NATIONS CHARTER ON THE USE OF FORCE

Article 51 of the UN Charter which confers on individual states an 'inherent right of individual or collective self-defence' and Security Council authorised enforcement actions under Chapter VII constitute the only exceptions to Article 2(4) which prohibits 'the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations'. The Security Council is accorded primary responsibility for maintaining international peace and security and pursuant to Article 34 may investigate any dispute which might endanger the maintenance of international peace and security. Under Chapter VII, the Council may take any action including the use of armed force 'as may be necessary to maintain or restore international peace and security'. A determination of a threat to peace or breach of the peace made by the Security Council in response to the situations in for example, Syria or Sudan, will serve as a legitimate trigger for Chapter VII enforcement action circumventing the domestic jurisdiction clause of Article 2(7). Nevertheless, a more fundamental difficulty however will be establishing the existence of elements such as humanitarian crises or a disruption to democracy in Syria which have served as a precursor to intervention in the past, most notably in Somalia and Haiti.


THE CONCEPT OF ‘HUMANITARIAN INTERVENTION’

i. Humanitarian intervention brought about by human rights abuses

It is increasingly being accepted that the concept of international peace and security appears to have acquired meaning beyond traditional collective security (envisaged as collective response to armed attack), to one in which ethnic cleansing, genocide and other gross violations of human rights, as well as grave breaches of humanitarian law, including those encompassed within a state's own borders are considered parts of the security fabric. Humanitarian intervention was recognised in the Council's resolution which expressed demand for urgent response by the international community, determining that the magnitude of the humanitarian crises in Rwanda constituted a threat to international peace and security in the region. The Council authorised 'operations aimed at protecting displaced persons, refugees and civilians at risk, using 'all necessary means to achieve these humanitarian objectives'. Humanitarianism was reiterated in the text of Security Council resolution 688(1991) which expressed grave concern over 'the repression of Iraqi citizens leading to a massive flow of refugees towards and across international frontiers and to cross border incursions, which threaten international peace in the region', demanding Iraq to end the repression immediately. If the line of authority espoused in Iraq and Rwanda is to be followed, the displacement of a large amount of the population, who have fled Syria following the political crisis in the country, certainly presents an international crisis and consequently constitutes a 'breach of peace' which falls within the ambit of Article 39, thus requiring enforcement.


TO BE CONTINUED