Justiceinfo https://www.justiceinfo.net Sun, 22 Sep 2019 19:13:39 +0200 Joomla! - Open Source Content Management en-gb Lebanon: new indictment, old troubles https://www.justiceinfo.net/en/tribunals/mixed-tribunals/42419-lebanon-new-indictment-old-troubles.html https://www.justiceinfo.net/en/tribunals/mixed-tribunals/42419-lebanon-new-indictment-old-troubles.html The Special Tribunal for Lebanon is now investigating those who allegedly organized attacks against political leaders between 2004 and 2005. George Hawi, former leader of the Lebanese Communist Party, died in a bomb blast in his car (photo) in June 2005.

On September 16, the Special Tribunal for Lebanon disclosed a second indictment, eight years after its first one on the killing of former Lebanese Prime Minister Rafik Hariri and 21 others. The new indictment deals with three other assassination attempts against Lebanese politicians. It may shed new light on Hezbollah’s responsibility, but the Tribunal is unlikely to get any real trial.

The Special Tribunal for Lebanon (STL) announced on September 16 that it has indicted Salim Ayyash for attacks on Lebanese politicians George Hawi, Marwan Hamadeh, and Elias El-Murr — three assassination attempts that it says are connected to the February 2005 Beirut bombing which killed former Lebanese Prime Minister Rafik Hariri and 21 others.

While former cabinet members Hamadeh and El-Murr survived separate bombings in October 2004 and July 2005 respectively, Hawi, former leader of the Lebanese Communist Party, died immediately after a bomb detonated in his car in June, 2005.

The new indictment, which has been under seal since last May, marked the opening of the STL’s so-called “connected cases”, i.e. a number of violent political attacks that took place between October 2004 and December 2005 and that may be connected to the attack that killed Hariri. The new indictment comes nearly 15 years after the facts and almost as many years of international investigations.

Despite multiple attempts, El-Murr could not be reached for comment. Hamadeh, a current member of parliament, informed Justice Info that he would not be speaking further with media in light of recent threats.

A known suspect long at-large

The accused, Salim Jamil Ayyash, a known Hezbollah member, first came under international limelight in 2001 when indicted by The Hague-based STL for alleged involvement in the Hariri assassination. Ayyash along with the four other Hezbollah members accused of orchestrating the bombing were never found by Lebanese authorities. A fugitive of the STL, he has undergone a trial in absentia for almost five years in the main Hariri case. A verdict has been pending for nearly a year and is expected to be announced before 2020.

Ayyash’s alleged participation in the connected bombings has now implicated Hezbollah for generating political instability and violence in Lebanon over a two year period. At the time, the Syrian occupation of Lebanon was hotly contested between two political spheres. In his campaign for Prime Minister in 2005, Hariri made clear his intentions to oppose pro-Syrian parties in Lebanon, among which Hezbollah is prominent. Following the former Prime Minister’s assassination, the opposing camps would be officialized as the March 8 (pro-Syrian) alliance, and the March 14 (anti-Syrian) alliance.

Given Ayyash’s status in the Hariri case, it is unlikely that he will appear before the trial chamber to address the new charges. Three days following the initial indictments in 2011, Hezbollah’s secretary-general Hassan Nasrallah famously vowed that the “honorable brothers” – Ayyash and the four other accused before the STL – would never be apprehended by Lebanese or international authorities “even in 300 years.” Nasrallah and members of Hezbollah have long rejected the tribunal, accusing it of being a biased Israeli conspiracy.

According to a statement released by STL President Judge Ivana Hrdličková on September 17, Lebanese authorities have already informed the Tribunal that Ayyash could not be located and notified of the recent indictment. Nonetheless, an additional 30-day period will be dedicated to locating the suspect before a decision is made to start a trial in absentia.

“This is a different case, and even if connected to the 14 February 2005 attack, it includes new counts, different crimes, and different evidence,” STL spokesperson Wajed Ramadan told Justice Info. “The accused also needs to be notified of the new charges and new counts, despite the fact that he is also accused in relation to another set of facts in the [Hariri] case. He should benefit from the same rights, including the right to a fair trial.”

While Ayyash has long absconded, the insinuation that Hezbollah was involved in organizing a series of terrorist attacks in Lebanon will bear political consequences given the key political party’s representation in Parliament and Cabinet.

Political consequences

“The recent indictment of Ayyash is quite shocking for many,” Imad Salamey, policy advisor and professor of Middle East Political Affairs at the Lebanese American University told Justice Info. “It connects several plots together under one operation all linked to Hezbollah. Now that Ayyash is tied to multiple assassinations, it implies that he could not have done this single-handedly nor with a small group. These attacks must have been well thought out operations leading to Hezbollah and therefore the Iranian intelligence. These cases are no longer about the individuals anymore.”

The immediate effect, Salamey continued, will likely be seen on a political level as Hezbollah’s allies in the Lebanese government are now forced to tread lightly. Decision-making powers over national issues may see a temporary shift in favor of the March 14 alliance, led by Prime Minister Saad Hariri, son of Rafik Hariri.

“Hezbollah is already designated as a terrorist group by the United States, but this indictment may put further pressure on the European Union and other groups to reassess their relationship with them,” Salamey added. As the Lebanese economy struggles to stay afloat, alienation from key foreign countries and institutional donors would be a major risk to the country’s stability.

Although consequences may be felt on a political level, few believe that justice will be achieved. The timeline in which the STL handed the indictment is likely to be too little too late as both Lebanon’s national and geopolitical situations have considerably evolved since the mid-2000’s. No matter the ruling, the aftermath of a decision will bear very different consequences in today’s context.

The STL’s unsettling record

After almost fifteen years of investigations, including four years of a well-funded U.N. commission of inquiry, the STL has only indicted five individuals — none of whom have been brought to court. Such record is unprecedented at the international level.

STL spokesperson Wajed Ramadan noted that such a tribunal cannot be compared to the pace of national trials. “The STL is the first tribunal of international character to prosecute terrorist crimes and to deal with highly complex and technical evidence,” she said. “This kind of crime is by definition difficult to investigate.” While acknowledging the frustration of such a delayed timeline, Chatham House fellow Nadim Shehadi claimed that such was inevitable for the tribunal. “We can speculate for days on why it has taken this long, but this should be expected. The ICTY similarly took well over two decades before it concluded.”

Nonetheless, in its twenty-five years, the International Criminal Tribunal for the former Yugoslavia (ICTY) has tried 111 suspects for genocide, crimes against humanity and war crimes.

When the STL was officially opened in 2009, it was hailed to mark a new era in Lebanese politics — one where political assassinations would not continue with impunity. The watershed moment gave hope to a country crippled by decades of political violence. Investigations led by the Lebanese authorities, the U.N. International Independent Investigation Commission and later by the STL were closely followed by the media. When the first trial in absentia finally began in 2014, it was broadcast across all major Lebanese media networks.

However, attention quickly waned as the hearings grew increasingly technical. Without the defendants, the prosecution and defense relied on circumstantial cellular evidence to develop stories for spectral figures. A small minority of Lebanese media continued to report on the Hariri trial in the ensuing years. The hearings have long since been cut from television.

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“The STL was certainly exciting at first, but it’s true that very few follow the trial now,” Nadim Shehadi said. “The defendants have long absconded. It’s unlikely we will see Ayyash in court for the [connected] case and a trial in absentia does not offer the same hope for justice.”

Salamey agreed, adding that the inability to arraign the accused has nullified confidence in proper avenues of criminal justice. “Simply stated, many feel that it is worthless,” he said. “Most Lebanese have grown apathetic towards the court knowing it has no power to execute any of its rulings.”

informatique@hirondelle.org (Justiceinfo.net) Mixed tribunals Fri, 20 Sep 2019 10:02:33 +0200
Gbagbo/Blé Goudé: why Judge Herrera-Carbuccia refused to acquit them https://www.justiceinfo.net/en/tribunals/icc/42406-gbagbo-ble-goude-why-judge-herrera-carbuccia-refused-to-acquit-them.html https://www.justiceinfo.net/en/tribunals/icc/42406-gbagbo-ble-goude-why-judge-herrera-carbuccia-refused-to-acquit-them.html Judge Olga Herrera-Carbuccia takes her seat as former Ivory Coast president Laurent Gbagbo and former minister Charles Ble Goude await the start of their trial at the International Criminal Court in The Hague on January 28, 2016.

The Prosecutor of the International Criminal Court has just appealed the acquittal of Laurent Gbagbo and Charles Blé Goudé. Seven months after the oral decision to acquit former President of the Republic of Côte d'Ivoire and his Minister of Youth, the International Criminal Court published the reasoning of the decision on 16 July. After showing the reasons for the acquittal, Justice Info goes into the dissenting opinion of the Dominican judge.

In the three hundred pages of her dissenting opinion, Dominican judge Olga Herrera-Carbuccia took the opposite view of the majority's decision. For her, it was clear that in the case of the prosecutor Fatou Bensouda, there was "sufficient evidence, if accepted, on which a reasonable Trial Chamber could convict the accused. »

To reach this conclusion, she adopts an approach different from that of the majority; rather than verifying (and invalidating) step by step the case of the prosecutor like the two other judges, she pays particular attention to the documents and testimonies presented before the Court in order to make up her own mind. Unlike the majority and although in a brief manner, she recalls the presence of victims (through their counsel) at the trial. And in one of the first paragraphs, she decides, before addressing the merits of the case, to describe the objectives, in her view, of international justice: "Establishing the truth behind events and preventing all forms of revisionism have always been the underlying objectives of all international criminal justice systems. If we allow a president in a democratic society who refuses to step down in the aftermath of a contested election to target citizens of that society and commit crimes against humanity with impunity, we fail to comply with the values and purposes enshrined in the Rome Statute ("Statute")... and espoused by the international community. »

A common plan

In her analysis, Judge Herrera-Carbuccia draws on the case law of the International Criminal Tribunal for the former Yugoslavia (ICTY). Through the Limaj judgment, she seeks to show that attacks against the civilian population are often carried out by a State. "It is States which can most easily and efficiently marshal the resources to launch an attack against a civilian population on a ‘widespread’ scale, or upon a ‘systematic" basis’”, she quotes, citing the ICTY decision. She concludes that it is not then necessary to prove that there was an "inner circle" (as in the Prosecutor's theory) operating around former Ivorian President Laurent Gbagbo and sharing the desire to keep him in power at all costs.

"In the case at hand," writes Herrera-Carbuccia, "the analysis must be centred on whether Mr Gbagbo and the State apparatus he led, which included among others his cabinet and senior FDS [Defense and Security Forces] officials, implemented a policy to attack the civilian population.” Targeting the use of mercenaries and pro-Gbagbo youth, the former university dean says that "it is important to determine whether these private elements, although not legally within the State structure, interacted with the State in the implementation of the State policy". The analysis of the evidence presented in connection with the attacks allows her to meet the above criteria in the affirmative.

Crimes against humanity

The judge goes back to the march on Ivorian Radio and Television in December 2010. "Contrary to the submissions of the Defence, there is ample evidence that the FDS hierarchy and Mr Gbagbo were aware that the march was going to take place and that meetings had been held to organise the repression of the march, which was to be prohibited upon Mr Gbagbo's order." She continues: "The evidence also supports the allegation that Mr. Blé Goudé reportedly summoned youth leaders to march on RTI.”

Herrera-Carbuccia mentions a video excerpt from December 12, 2011 in which Interior Minister Emile Guiriéoulou talks to the police about the measures to be taken during the march. The judge quotes the Minister as follows: "We are in a situation that is not a normal situation. So I reminded the prefects that we are in a situation of war and that in a situation of war, special measures must be taken, and that we must not be satisfied with the usual administrative measures, that we must integrate into our behaviour, our actions, our reactions, that we are in a situation of war.”

Testimonies would confirm allegations that unarmed civilians were beaten, detained and killed on 16 December 2010. For the judge, a reasonable trial chamber could therefore conclude that the Defence and Security Forces with other non-State actors have failed to "to perform [their] duty to protect civilians". The judge considered that "the State apparatus attacked unarmed civilians and refused to take measures to protect the people". Even if civilians took part in an unauthorized demonstration, the use of lethal force and "manifestly criminal acts such as rape... is unjustifiable". The judge made a similar observation for the march of Abobo women in March 2011. "The evidence attests to the allegation that the SDF" showed "excessive use of force by firing indiscriminately at a crowd of unarmed women," writes Herrera-Carbuccia.

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Command responsibility

The majority analysed in detail all the articles of the Rome Statute under which suspects were charged. Herrera-Carbuccia takes a different approach. " Judges are limited, in their analysis, to the facts and circumstances of the charges confirmed against the accused," she explains. "However, [...] judges have a discretion to examine only the mode of liability that most accurately describes the conduct of the accused." It is on this basis, and "in the light of Mr Gbagbo's position as President of Côte d'Ivoire and Supreme Commander of the FDS, and the fact that he had the capacity to issue instructions during the post-election violence" that the judge decided to analyse the former president's responsibility under article 28, which defines the "responsibility of military leaders and other superiors".

Article 28, for Herrera-Carbuccia, "was included in the Statute to prevent impunity for those in power - those who, by traditional criminal law standards, would have escaped justice. The essence of article 28 is that it holds responsible those who, under the veil of the rule of law, in fact abuse the rule of law against the population they are supposed to protect." Returning to Gbagbo and to the march on the RTI, Carbuccia-Herrera argues that "although there is no evidence that Mr Gbagbo explicitly ordered the commission of these crimes against civilians, evidence shows that his order to repress the march was implemented in a brutal manner. Evidence also suggests that this violence was planned.” She mentions a televised speech in which "Mr. Gbagbo confirmed that he had knowledge of the civilian casualties. However..., no action was taken to punish those responsible for perpetrating the crimes. »

Blé Goudé could also be convicted

The situation concerning Blé Goudé is different. Article 25(3)(b) would apply, i.e. ordering, soliciting or inducing the commission of crimes. For Herrera-Carbuccia, the evidence confirms that Blé Goudé "was a close and trusted associate of Mr Gbagbo [...], was a Minister in Mr Gbagbo's government while remaining ‘The Street General’" and "had de facto control over FDS officers of the so-called ‘Génération Blé Goudé’".

The "street general" could therefore be convicted for crimes against humanity following his many speeches and "watchwords" asking Young Patriots to act for Gbagbo, even with "bare hands". She justifies this by the fact that Blé Goudé never asked the young people to put an end to the killings, as with the use of "article 125" when he was aware of the commission of these crimes by the young people under his leadership (100 francs of gasoline and 25 matches to burn suspects alive).

Judge Herrera-Carbuccia does not say that Gbagbo and Blé Goudé are, in her view, guilty of crimes against humanity. She only answers in the affirmative to the question put to the Chamber: on the basis of the evidence and arguments presented during the prosecution case, could a reasonable Chamber convict the accused? And she would have liked the defence to be able to present their arguments before the Trial Chamber.

informatique@hirondelle.org (Justiceinfo.net) ICC Thu, 19 Sep 2019 09:30:13 +0200
Why the ICC acquitted Laurent Gbagbo and Charles Blé Goudé https://www.justiceinfo.net/en/tribunals/icc/42384-why-icc-acquitted-laurent-gbagbo-charles-ble-goude.html https://www.justiceinfo.net/en/tribunals/icc/42384-why-icc-acquitted-laurent-gbagbo-charles-ble-goude.html In January 2019, the request for « no case to answer », filed by Laurent Gbagbo and Charles Blé Goudé, resulted in a withdrawal of charges without the need to present the arguments of the defense.

The Prosecutor of the International Criminal Court has just appealed the acquittal of Laurent Gbagbo and Charles Blé Goudé. Seven months after the oral decision to acquit former President of the Republic of Côte d'Ivoire and his Minister of Youth, the Trial Chamber of the International Criminal Court issued a written reasoning on 16 July of this scathing decision for the prosecution. Here are the main points made by the judges.

Evidence of "exceptional weakness". This is how Presiding Judge Cuno Tarfusser describes the case of the International Criminal Court (ICC) Prosecutor Fatou Bensouda against former Ivorian President Laurent Gbagbo and his Minister of Youth Charles Blé Goudé. In 2018, then accused of crimes against humanity, the two men had filed a "no case to answer" request: their defence teams considered that the prosecution file presented over the past two years did not require the defence to present its arguments to obtain the withdrawal of the charges.

A withdrawal that was obtained last January by an oral decision of the majority of the Trial Chamber, with the promise to give a "fully reasoned decision as soon as possible". Seven months later, on 16 July, the same chamber published its "reasons for oral decision". In fact, it is a nine-page document outlining the steps in the proceedings and referring to three appendices: the reasons presented by Judge Geoffrey Henderson (Appendix B), the opinion of Judge Cuno Tarfusser (Appendix A) and the dissenting opinion of Judge Olga Herrera-Carbuccia (Appendix C).

Italian-style settling of scores

Thus, the majority of the Chamber, Tarfusser and Henderson, did not issue a joint reasoned decision as such. The former only relies on the reasoning of the latter (961 pages) while publishing a 90-page opinion in which he gives a very critical judgment of the prosecutor's work, and to a lesser extent of the defence's work. For the President of the Chamber, Gbagbo and Blé Goudé must be acquitted on the basis of "an in-depth analysis of the evidence" and of "its exceptional weakness".  He recounts "sifting through mountains of documents purportedly supporting that case, none of which could confirm it in the slightest".

The text of the President of the Chamber is also an opportunity to speak about him in the first person. "The reasons for this opinion are rooted in the profound differences between my legal background and approach and the ones of my fellow judges," he explains on the second page, before using the pronoun "I" over and over again - something that the other two judges have avoided tactfully. Italian judge Tarfusser seems to be clumsily settling scores with the prosecutor and with the functioning of the ICC, while judge Henderson's opinion, ten times longer, is much more sober and delicate - to achieve the same result: acquittal.

Putting the cart in front of the horse

To achieve this, the majority first analyzed the vision of Côte d'Ivoire presented by the prosecutor's office. A vision described by Tarfusser as "relying on shaky and doubtful bases, inspired by a Manichean and simplistic narrative of an Ivory Coast depicted as a ‘polarised’ society where one could draw a clear-cut line between the ‘pro-Gbagbo’, on the one hand, and the ‘pro-Ouattara’, on the other hand". For Justice Henderson, Prosecutor Bensouda "systematically omits or downplays significant elements of the political and military situation", which has resulted in "a somewhat skewed version of events". The judges believe that the prosecutor decided on a theory and then tried to apply evidence to it to support her version of the facts - when the latter should have been the basis of the theory. In short, we wanted to put "the cart in front of the horse", according to the words of the judge from Trinidad and Tobago.

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No common plan

At the “no case to answer” stage, judges do not normally have to assess the authenticity of the evidence - but the case presented being what it was, they made many remarks about the origins of documents and the use of testimony. For crimes to qualify as "crimes against humanity", it is necessary to prove the existence of a common plan and/or a policy of large-scale or systematic attack.

Justice Henderson summarizes the prosecutor's failure to prove the existence of a common plan in the following paragraphs: « The difficulty with the Prosecutor’s approach is that none of the individual factual elements she relies upon. clearly point to the existence of a plan or policy to attack civilians. The Prosecutor acknowledges this but argues that when all the different strands of her argument are considered together, it becomes clear that the Common Plan and the policy were criminal in nature… While it is true that the (criminal) content of the Common Plan can, in principle, be inferred from a combination of circumstantial evidence, this theoretical possibility does not relieve the Prosecutor from formulating a cogent argument in this regard… Ultimately, the Prosecutor bears the burden of demonstrating, for each factual allegation she makes, which evidence purportedly proves it. If it is a  combination of evidence that allegedly proves a fact, then the Prosecutor must clearly identify all the pieces of the puzzle and, crucially, explain how they fit together. »

For example, Henderson explains that "meetings between the members of the alleged 'inner circle' and the accused discussed hereinabove shows that there were relatively frequent contacts between different members of Mr Gbagbo's government as well as senior FDS officers. This does indeed show that there was frequent communication and a certain level of coordination. However, there is nothing unexpected about this. No government can function without a minimum level of communication and coordination. »

No evidence of attack targeting civilians

The majority of the Chamber therefore considers that the existence of a common plan to attack civilians is not proven. It goes even further: the documents presented by Bensouda’s team do not allow to say that the attacks specifically selected in this case targeted civilians. It would be "utterly irresponsible to make any findings about what allegedly happened during the RTI march [Radio-télévision ivoirienne, the national TV and radio network]" on the basis of the prosecution evidence, writes Henderson about the December 2010 demonstration against Gbagbo's decision to remain in power. The prosecutor alleged that the FDS had violently repressed the demonstration and that the victims had been targeted because they were perceived as "actual or perceived political activists or sympathisers, or civilians who were considered to be supporters of the opposition due to their Muslim faith, Dioula ethnicity and/or their provenance from northern Côte d'Ivoire, or other West African countries. »

Another example is the march of women in Abobo commune, where 13 of them were killed on 3 March 2011 by the FDS, according to the prosecutor (who relies on a video and accounts from witnesses and experts). For Henderson, "although serious question marks may be placed by the use of a heavy machine gun in an environment with a very high concentration of civilians, it is not possible to determine on the basis of the available evidence that the soldiers in the BTR 80 or in any of the other vehicles in the convoy caused the deaths and injuries of the 13 victims of the women's march".

No criminal liability

Even if the Chamber had considered that there had been crimes against humanity committed in Abidjan during the post-electoral crisis of 2010/2011, the prosecutor would have had to demonstrate the responsibility of Gbagbo and Blé Goudé in the commission of these attacks. For Henderson and Tarfusser, Bensouda failed here too. "No witness was in a position to say that he had personally attended a speech by Charles Blé Goudé, where he would have incited or encouraged or otherwise condoned violence against political opponents, or otherwise; nor can this be inferred from the video recordings submitted," wrote the presiding judge to illustrate the absence of responsibility, before adding: "Far more frequent are the instances where either Mr Gbagbo or Mr Blé Goudé, as well as members of their alleged 'Inner Circle', are on record as explicitly advocating peace or denouncing violence. »

In our article to be published this Thursday, we will explain why Judge Olga Herrera-Carbuccia, who issued a dissenting opinion to that of the majority of the Chamber, does not agree

informatique@hirondelle.org (Justiceinfo.net) ICC Tue, 17 Sep 2019 10:30:56 +0200
First ICTR review trial for former Rwandan minister Ngirabatware https://www.justiceinfo.net/en/tribunals/ictr/42364-first-ictr-re-trial-for-former-rwandan-minister-ngirabatware.html https://www.justiceinfo.net/en/tribunals/ictr/42364-first-ictr-re-trial-for-former-rwandan-minister-ngirabatware.html The brand new Arusha Division Building of the Residual Mechanism, overlooking Mount Meru,

Augustin Ngirabatware is the first person convicted by the International Criminal Tribunal for Rwanda to obtain a review hearing on his judgment. From 16 to 27 September, the Mechanism for International Criminal Tribunals (MICT) will meet in Tanzania to hear "new facts" from the former Minister of Planning, who was in office during the 1994 genocide.

Augustin Ngirabatware is the son-in-law of Félicien Kabuga, a man of influence in Rwanda in the 1990s and the most notorious of the ICTR indictees who have not been caught. Born in 1957 in the commune of Nyamyumba in Gisenyi prefecture (northern Rwanda), Ngirabatware holds a doctorate in economics from the University of Fribourg (Switzerland). He taught at the National University of Rwanda before being appointed Minister of Planning in 1990. Known as rigorous, this member of the former ruling MRND party was appreciated by Rwanda's donors and even by the emerging opposition, something that was extremely rare at the time. He kept his post in the interim government formed on April 8, 1994, two days after the assassination of President Juvenal Habyarimana.

After fleeing his country in July 1994, the Rwandan economist worked for research institutes in Gabon and France. In addition to this work, he published in August 2006 a book critical of the ICTR, entitled "Rwanda: The Rise of Lies and Injustice", published by Sources du Nil. In his book, Ngirabatware, who knew he was wanted by international justice, states that the Arusha court was "set up by the UN on false premises" and "cannot do justice", according to a summary by the publisher.

Accused of preaching genocide

In 2007, the former minister was arrested in Frankfurt, Germany, and transferred to ICTR headquarters in Arusha, Tanzania, a year later. His first trial began in September 2009. Ngirabatware was charged with conspiracy to commit genocide, genocide, direct and public incitement to commit genocide, and crimes against humanity (including rape). In his opening statement, prosecutor Wallace Kapaya told the court that Ngirabatware held "several meetings" in his native region of Gisenyi in 1994 "to spread the gospel of genocide", repeatedly insisting that no Tutsi survive. The Tanzanian lawyer accused him of distributing weapons to Interahamwe militiamen in his home town of Nyamyumba.

The prosecutor did not stop there. He added that Ngirabatware had abused his position to divert funds from various donors such as the World Bank, the United States and Belgium for the benefit of the Interahamwe militia. He "used his connections, political power and level of education" as part of a "joint criminal enterprise" aimed at destroying all or part of the Tutsi ethnic group, Kapaya alleged. As Minister of Planning, a recognized academic and son-in-law of Kabuga, himself related by marriage of President Juvenal Habyarimana, the accused would have been "an indispensable link in this criminal enterprise", the prosecutor asserted.

"Contradictory or misleading" testimonies

Undaunted, in suit and tie, the former minister closely followed the prosecutor's statement, sometimes exchanging views with his defence team led by British lawyer Peter Herbert. After the prosecutor's witnesses had testified, the defence opened its case on 16 November 2010. "I ask you to conclude that my client is innocent because that's what he deserves. The people of Rwanda need justice," Herbert told the court. "Augustin Ngirabatware does not fear evidence, does not fear a fair trial, does not fear those who conduct it and understands the need for leaders to be held accountable for the suffering of their people. What he fears is a court that bends under pressure and may be afraid to acquit for fear of political repercussions. That's what he fears."

After denouncing charges based on "contradictory” or "deliberately false" statements, the lawyer focused on his client's alibi for the period from 6 to 12 April 1994. The former minister allegedly went at that time to his father's home in the commune of Nyamwumba to supervise arms distribution. "We have very strong alibi witnesses on this point," the lawyer said, finding the allegation "as ridiculous as suggesting that Tony Blair himself went on a bombing mission in Iraq”. Ngirabatware claims to have sought refuge after the assassination of President Habyarimana first at the presidential guard camp in Kigali, then at the French embassy, before flying to Burundi. "I did not leave Kigali between April 6 and 8, 1994. All this is false, entirely false, even unthinkable," protested the former minister during his testimony on November 26, 2010.

Presentation of new facts

The Trial Chamber's judgment came on 20 December 2012. Ngirabatware was found guilty of "genocide, direct and public incitement to commit genocide and rape". According to the court presided by Tanzanian judge William Hussein Sekule, the former minister incited, assisted and encouraged militiamen in his native Nyamyumba commune to kill their Tutsi neighbours and rape Tutsi women in April 1994. Ngirabatware was sentenced to 35 years' imprisonment. However, on 18 December 2014, the Appeals Chamber acquitted him on the charge of "rape as a crime against humanity" and reduced the sentence to 30 years.

Protesting his innocence, Ngirabatware refused to admit defeat. In an application filed on 8 July 2016 with the Mechanism for International Criminal Tribunals (MICT), which performs the residual functions of the ICTR, the former leader requested a review of his trial, explaining there were new facts exempting him from liability for the crimes for which he had been convicted. On June 19, 2017, the MICT granted it. "This is the first time the Mechanism has granted a request for a review of a final judgment," the MICT said in a statement.

Defence team arrested in Rwanda

Initially scheduled for February 2018, the review hearing has been postponed twice. First, to allow the new defence lawyer, Diana Ellis, to study the voluminous file. Then in early September 2018, with hearings announced for the end of the month, five Rwandans were arrested in their country, accused by the MICT prosecutor of tampering or attempting to tamper with and intimidate witnesses to obtain statements in favour of the former minister. The five include Dick Prudence Munyeshuli, a lawyer who worked as an investigator in Ngirabatware's defence team. These arrests resulted in a further delay.

The hearings are therefore finally starting on 16 September, after the Chamber rejected a prosecution request to further delay it until after the judgment in the Munyeshuli case. The hearings, scheduled to last until 27 September, will take place before a panel of five judges led by the former president of the MICT, Judge Theodor Meron, a number of whose decisions have angered the Rwandan authorities. Kigali criticizes the American judge for having granted early release to many convicts and for sentence reductions on appeal.

Corrections were made on the first version of this article due to an error in translation. The case is not a “re-trial”, as wrongly stated in English, but a review of the final judgment.

informatique@hirondelle.org (Ephrem Rugiririza) ICTR Mon, 16 Sep 2019 09:55:54 +0200
Tunisia’s presidential hopefuls shun transitional justice issue https://www.justiceinfo.net/en/reconciliation/42356-tunisia-presidential-hopefuls-shun-transitional-justice-issue.html https://www.justiceinfo.net/en/reconciliation/42356-tunisia-presidential-hopefuls-shun-transitional-justice-issue.html To date, the outcomes of the Truth and Dignity Commission (IVD) has been carefully avoided during the three televised debates held with the 26 candidates for the presidential elections in Tunisia. Here, from left to right: Mongi Rahoui, Abdelkrim Zebidi and Elyès Fakhfakh.

Transitional justice is an issue almost absent from Tunisia’s current presidential campaign. There are 26 candidates in the running, but hardly any focus on this crucial question.

"I will never support parties or candidates who:

- put Bourguiba on a pedestal, even though his legacy is complex. Claiming to be a follower without distinguishing between his extraordinary social advances (including the question of women) and the vicious circle of his authoritarianism and clientelism is, in my view, enough to rule someone out.

- surround themselves with central committee members of the RDC (a party created in 1988 by former President Ben Ali). Some members of this central committee are respectable individuals and have not robbed the people. But they belong to the old days. You can't pretend to make something new out of something old; anti-democratic software is not so easy to update.

- consider that the transitional justice process is not necessary and want to achieve ‘reconciliation’ (or rather amnesty) before going through the processes of truth and justice".

This is what jurist Farah Hachad, founder of the NGO Labo Démocratique, wrote on Facebook last week. She is one of the people from civil society who have been deeply engaged in the transitional justice process right from the start.

But in the campaign for the 15 September early presidential elections triggered by the death of President Beji Caied Essebsi on 25 July, Farah Hashad's voice is a lonely one. According to the debates that have been taking place on social networks since September 2, the official start of this campaign, very few Tunisians have made the same demands as this activist. The candidates -- 26 in all including Islamists, centrists, progressives, populists, anti-system, pro-old-system, Arab nationalists, left-wing and left-wing extremists -- seem to be avoiding this subject like the Plague, with only a few exceptions.

Avoiding the issue

Three televised debates with the 26 presidential candidates have recently taken place in Tunisia, a first in the Arab world. More than three million Tunisians (the country has seven million voters) followed this event on TV. Divided into three groups, the candidates expressed their views on the prerogatives of the President, namely national security, border protection and diplomacy. General questions, also drawn by lot, were asked by a duo of journalists at the end of the programme. They included topics such as equal inheritance, individual rights and freedoms, the death penalty and transitional justice. Although the divisive theme of transitional justice has been carefully avoided in public meetings and media interviews by political calculation, it was expressly mentioned twice in the television debates of 7 and 8 September.

A first question was put to Abdelfattah Mourou, candidate of the Ennahda (Islamist) movement, about whether he would publish the list of martyrs and wounded of the Revolution, which the former president refrained from doing.  Mourou, who testified before the specialized chambers in the emblematic Matmati case concerning the enforced disappearance of an Islamist and his death under torture in 1991, replied in the affirmative, adding: "We will also provide reparations for the victims while establishing the truth about the circumstances of the martyrs' deaths".

The other question was addressed to Mohsen Marzouk, founder of the Al Machrou (The Project) party and former leading member of President Caied Essebsi's Nida Tounes party. "How do you intend to manage the transitional justice file?” he was asked. Mohsen Marzouk, despite his break with Nida, draws his support from people close to the former regime of Ben Ali, the same electoral pool as the party he broke from. Hence his answer, which is in total contradiction with the facts and ironic since he is the creator of the Kawakibi Centre for Democratic Transitions, one of whose missions is to produce research on transitional justice: "This process in Tunisia […] is nothing but revenge and hatred. The solution would be to put in place a law on global reconciliation. There is also a project on this issued by the State."

"Global reconciliation"

Hayet Ouertani, former Commissioner of the Truth and Dignity Commission (IVD) responsible for reparations, commented as follows on the candidates' reactions and speeches: "Even those considered close to the process and able to adopt the recommendations of the Truth Commission in their policies do not want to mention the name of the Commission. I listened to Mongi Rahoui, a left-wing man, promise the citizens of Bizerte he would demand reparations and apologies from France for its responsibilities in the Bizerte war. However, he does not cite the IVD as the source of this idea, as if it had become the most pestilential body in the country.”

In fact, "reconciliation" is being used in this presidential campaign as the key word to talk about the transitional justice issue. More precisely, it is a reconciliation-with-amnesty that is at stake, punctuated by slogans such as "let us turn the page on the past", "it is time to forget our hatreds of yesteryear" and "let us revive our national unity".

"Let's turn the page on the past"

The theme of "global reconciliation" is clear in the election promises of candidate Youssef Chahed, Prime Minister and leader of the Tahiya Tounes (Long Live Tunisia) party, who has refused for months to publish the IVD report in the Official Journal. The term also punctuates the meetings of Abdekerim Zbidi, former Minister of Defence and independent candidate but a man of the system extremely close to the late Beji Caied Essebsi. The motto also seems to be very present in the electoral programming of all those that came from the Nida Tounes party, which has fragmented because of the nepotism of its leader and murderous clan struggles since 2015. That includes Nebil Karoui, president of Kalb Tounes (Heart of Tunisia), the favourite in the polls for having conducted his campaign for months on his Nessma TV and currently in prison; Said Aidi, former head of Nida and former minister; Salma Elloumi, former minister and chief of staff to BCE; and Mohsen Marzouk.

Fragility of candidates for transitional justice

"We are not surprised by the positions of all these candidates in the running. They rejected transitional justice outright as early as 2014 as it demands accountability from several of the activists from the ranks of Nida Tounes,” says Khayam Chemli, a lawyer and member of the NGO Avocats sans frontières (ASF). “ But we survived and fought hard against the economic reconciliation law proposed by BCE. But the person that is for us the most formidable remains the candidate Abir Moussi, the passionaria of the old regime, who makes denial of the Revolution and the victims of the dictatorship a constant in her speeches. For her, all this is a lie!"

In the current electoral turmoil, the voices of candidates supporting the five-year work to shed light on the truth and rehabilitate the victims of human rights abuses are not being heard. There are a few raising their voice from time to time, such as Mohamed Abbou, President of Tayar Dimocrati (Democratic Movement), Elyes Fakhfakh, Ettakatol, and Monsef Marzouki, who was President of the Republic at the time of the Troika. However, these candidates are likely to suffer from the fragmentation of votes because of a Tunisian political scene currently split into a thousand and one pieces.

informatique@hirondelle.org (Olfa Belhassine) Reconciliation Fri, 13 Sep 2019 10:57:52 +0200
Central Africans discretely consulted on Truth Commission https://www.justiceinfo.net/en/truth-commissions/42348-central-africans-discretely-consulted-on-truth-commission.html https://www.justiceinfo.net/en/truth-commissions/42348-central-africans-discretely-consulted-on-truth-commission.html For many Central Africans, justice must come before reconciliation. A criminal session in Bangui, on 16 July 2018.

Without publicity, national consultations have been taking place since June 2019 in (almost) the entire Central African Republic to help define the future Truth, Justice, Reparation and Reconciliation Commission.

The planned Truth Commission has always had very vague outlines. This transitional justice mechanism prescribed in May 2015 by the Bangui National Forum has a steering committee, set up by decree in 2017 and placed under the authority of the Prime Minister. Appointed in March 2018, the steering committee of politicians, international experts and members of civil society is responsible for organizing popular consultations and drawing conclusions from them so as to draft a law establishing the "Truth, Justice, Reparation and Reconciliation Commission (TJRRC)".

It is difficult to organize such consultations in the climate of insecurity that has reigned since the Bangui Forum. But the idea came back in force when the so-called "Khartoum Agreement" was signed in Bangui on 6 February. The accord provides for "accelerating the process of establishing the TJRRC, with the launch of national consultations as soon as possible, and the adoption of a law". It even said that the Commission must start its work within 90 days. At the beginning of September, although the Commission was still not in place, consultations had indeed been held in the seven major regions of the country (Bangui, counting as one region, organized one consultation per district). They were officially launched by the head of state Faustin-Archange Touadéra on 6 June at a presidential palace ceremony, with the aim of "giving popular legitimacy to this last transitional justice system".

“Great opacity”

Since then, the greatest discretion has surrounded these "popular" consultations. Ghislain-Joseph Bindoumi, Central African League for Human Rights delegate to the steering committee, notes "great opacity" of the Ministry of Humanitarian Action and National Reconciliation, which is in charge of setting up the Commission. Since the Khartoum agreement and the establishment of a government including leaders of armed groups "we have not been involved in organizing these consultations," he said. "We were only invited to the launch, like all the other guests." At recent meetings of the committee, he says, "we had drawn up a timetable and a draft budget of around 200 million CFA francs (more than 300,000 euros) for the functioning of the committee and the organization of the consultations." It is impossible to know whether these recommendations have been followed. Bindoumi says it is a "small team within the ministry", which has convened at its discretion representatives of Central African society (victims, women, youth, religious denominations, etc.) and political parties.

"We are not informed of what has been done," adds a source at the UN Mission in the Central African Republic (MINUSCA), which provides technical support to the government. However, she points out that it is "the steering committee that mandated the ministry, and it is therefore normal that the ministry takes charge of this”.

And in many associations, including the Coordination of Muslim Organizations in the Central African Republic (COMUC), people are not happy. "I was invited to the consultation in Bangui 3rd district, but I don't even know if it's on behalf of COMUC or on my own behalf," says Ali Ousmane, its president. “In the rest of the country, our organization was not invited. They do not want to deal with the roots of the crisis." Malick Karomschi, representative of the Organization of Muslim Victims says they are not represented and there is a lack of professionalism. Victims are nevertheless having a say, he adds.

Lewis Mudge, Central Africa director at Human Rights Watch, finds this information worrying. "The TJRRC could be an important mechanism for truth telling around the conflict and how to ensure that mistakes from the past are not repeated. In this regard, the work of the CVJRR should be conducted in the most transparent and inclusive way possible. If there are doubts as to the commission’s motives and how it operates, it could cast doubt on any final conclusions.”

“Popular” consultations?

The consultations can hardly be called "popular". In Berbérati, in the western region, there were hardly more than 100 participants at the meeting, although people came from all over this area, which is among the most populated in the country. While the total number of people consulted remains unknown, it is clear that - as was the case at the Bangui Forum in 2015 - these consultations concerned only a few hundred citizens considered representative.

Organizing such consultations in a country like the Central African Republic is nevertheless remarkable. The central Bria zone, for example, covered one of the biggest (191 350 km2) and least secure parts of the country. Some representatives from far flung towns were unable to come but the consultations “generally went well”, according to MINUSCA sources.

Enthusiasm of victims in Berbérati

Affiche CVJRR (Commission vérité) en Centrafrique
Poster promoting the Truth, Justice, Reparation and Reconciliation Commission (CVJRR) distributed in the regions by the Ministry of Humanitarian Action. © DR

Alain Kizinguere, vice-president of the LCDH and facilitator of the Berbérati consultation, says people were engaged and enthusiastic. "People wanted to talk, especially the victims. We were there to try to channel this. It was a complex exercise. On the question of the period to be covered, some wanted to go back to the death of Barthélemy Boganda [father of Central African independence, who died when his plane crashed in 1959], others to Jean-Bedel Bokassa [president then emperor from 1966 to 1979]. Still others wanted the Commission to concentrate only on the most recent crimes.”

The questionnaire itself contained some 30 questions with “examples of answers” and was not well adapted to “popular” consultations. Should alleged perpetrators of serious acts of violence be prosecuted? Who should be a member of the TJRRC and by whom should they be appointed? What kind of cooperation and complementarity between the Special Criminal Court and the Commission? The complexity and diversity of the topics addressed raises questions. However, the facilitators were given training in how to use this questionnaire, which was developed by a committee of national and international experts.

"The majority want justice first"

Some questions were controversial. "On the issue of reparations, several victims expressed the wish that the State rather than the perpetrators compensate for harm caused by criminal groups,” continues Kizinguere. “One of them had nearly 600 heads of cattle stolen. The man wanted the State to provide him with a new herd." Despite the difficulties, Kizinguere found it satisfactory on one point. "What I saw in the western part of the country reassured me. I saw that people living far from the capital love their country, which augurs well for social cohesion.”

Thematic and group workshops with feedback in plenary sessions allowed some conclusions to be drawn, according to Kizinguere, although he admits that the time allotted - five days - may have been too short to adequately cover the scope of the issues and guide the Commission's future mandate. "The four pillars of the TJRRC are all considered very important,” insists the facilitator. “Everyone wants reconciliation, but the majority want justice first.”

The results of these consultations are to be followed by a feedback workshop, followed by another meeting of experts responsible for drafting the bill, the timetable for which is not yet known.

Les résultats de ces consultations doivent donner lieu à un atelier de restitution, qui sera suivi d’un autre rendez-vous d’experts chargés d’élaborer le projet de loi, dont le calendrier n’a pas été communiqué.

informatique@hirondelle.org (Justiceinfo.net) Truth Commissions Thu, 12 Sep 2019 10:28:28 +0200
Yasukuni Shrine heats up Tokyo-Seoul tensions https://www.justiceinfo.net/en/reconciliation/42336-yasukuni-shrine-heats-up-tokyo-seoul-tensions.html https://www.justiceinfo.net/en/reconciliation/42336-yasukuni-shrine-heats-up-tokyo-seoul-tensions.html Drawing of two Japanese military pilots. Exhibition at the park of the Yasukuni Sanctuary.

How much can the past of the Japanese occupation in Korea poison relations between Tokyo and Seoul? The Yasukuni Shrine, embodiment of a past that is still present, has since August 15 become once again the symbolic epicentre of a diplomatic, economic and strategic crisis.

Relations between these two United States allies in this volatile part of the world, destabilized by Pyongyang's nuclear programs and the territorial claims of China and Russia, have never been so bad. On August 15, the seventy-fourth anniversary of the surrender, Japanese Prime Minister Shinzo Abe sent his right-hand man to the Yasukuni Shrine to give a ritual offering for the repose of warriors who died for the Emperor, including fourteen war criminals convicted and executed after the Tokyo trials in 1946. This was enough to provoke the wrath of Seoul and Beijing, who immediately denounced Japanese militarism and negationism.

The Yasukuni Shrine in Tokyo is in the middle of a 93,000 square metre park, one of the few green spaces in this sprawling city. This peaceful Shinto sanctuary is a place of pilgrimage commemorating the Japanese warriors who died fighting for the Emperor. This is what shocks Korea and other societies that suffered from the brutality of the Japanese occupation. A thousand war criminals, tried after the Second World War, are also honoured here.

The Yasukuni Sanctuary in Tokyo
The Yasukuni Sanctuary in Tokyo. The nostalgics of the almighty imperial power venerate this place where the souls of the dead warriors rest, even though it was created as a symbol of reconciliation at the end of the 19th century. © Pierre Hazan

When I went to the shrine one summer Sunday under a light rain, hundreds of older Japanese people had come there for a walk. Some watched martial arts demonstrations on the stage of the Noh theatre. Others commented on the tactics of fleshy adolescents fighting in sumo battles on the edge of the park. Still others meditated in front of the Shinto temple and offered some coins as usual. Were they simply taking a Sunday out or had they come to honour the souls of war criminals, including military and political leaders executed for launching the attack on Pearl Harbour and allying themselves with Nazi Germany? The first hypothesis is the most likely. In Japan on August 15, the date of its unconditional surrender, there were only extreme right-wing activists and a few nostalgic people marching in imperial army uniforms with the flag of militarist Japan defeated in 1945.

Honouring war criminals

Explanatory sign inside the Yasukuni Museum in Japan
The soldiers who sacrificed themselves for the motherland became deities (or semi-gods) whose memory is preserved in the Yasukuni Museum. © Pierre Hazan

Today, the Yasukuni Shrine nevertheless embodies Japanese militarism. As Professor of Diplomatic History Higurashi Yoshinobu explains in Nippon.com, Nagayoshi Matsudaira (1915-2005), the priest in charge of the shrine, was a senior officer during the Second World War. His father-in-law was Vice-Admiral of the fleet and was shot as a war criminal by the Dutch authorities. Matsudaira has always denounced the Tokyo trials as victors’ justice. That is why, as soon as he was appointed in 1978 to head the shrine, he decided to honour class A war criminals (military and political leaders convicted of "crimes against peace"), to the great displeasure of countries that had been occupied by Japanese troops. Some 1,000 other Class B and C war criminals (convicted of war crimes and crimes against humanity) had already been honoured there between 1958 and 1969.

A museum was subsequently built next to the Yasukuni Shrine. The museum tells the story of Japanese history in a nationalistic tone. It justifies the attack on Pearl Harbour, saying that because the United States had imposed economic sanctions on Japan, the country attacked the US to escape asphyxiation. It says nothing about the Nankin massacres or crimes committed in Korea, China and elsewhere by the imperial army.

Symbols reversed

It is an extraordinary reversal of symbols, for the Yasukuni Shrine was first created as a symbol of reconciliation among the Japanese in 1869, the year after restoration of the Meiji era (1868-1912) when the Emperor's supporters overtook those of the Shogun. According to Shinto tradition, the shrine was a place of pilgrimage to commemorate the souls of the dead warriors, regardless of which side they fought for. Researcher Ryosuke Kondo, a specialist in public spaces, points out that the shrine was for a long time the symbol of intra-Japanese reconciliation, but also of Japan's modernization, importing Western techniques and welcoming French circuses and horse races to Yasukuni in the late 19th century alongside sumo wrestlers. It was here that one of the first modern Japanese gardens was built, combining traditional aesthetics of the lake-stroll style with Western features such as fountains and lawns.

And yet it is this seemingly peaceful place, symbol of reconciliation and openness to the West in the late 19th and early 20th centuries, that now embodies a nationalist Japan, to the point of being the catalyst for the current diplomatic crisis between Japan and its Korean and Chinese neighbours. In addition, Shinzo Abe makes no secret of his desire to repeal Article 9 of the Constitution, passed in 1947 under American occupation, which states that "Japan renounces war" and cannot "maintain land, naval and air forces or other war potential". For the time being, the Prime Minister has not managed to obtain a two-thirds majority in parliament which would allow Japan to build a real army.

Compensating forced labourers in Korea

The Japanese-Korean crisis comes in the context of a historical dispute, after a Korean court ruled in 2018 that Japanese companies should compensate Koreans forced into labour when their country was under Japanese occupation between 1910 and 1945. This court decision reopens the debate on Japanese war crimes, including the use of thousands of sex slaves, a case that both governments had closed. It is true that the Japanese government has never made a formal act of contrition like Germany, even though in recent months the brand new Emperor has expressed his "deep remorse".

Events have followed one another in this crisis, to which are now added economic and security dimensions. Japan refuses to supply South Korea with essential components for the manufacture of semiconductors and flat screens. Then recently, the two countries ended their cooperation in the exchange of security information, even though they are allies against North Korea. This is a worrying crisis between Seoul and Tokyo in a region under tension from the territorial claims of Moscow and Beijing and the Pyongyang nuclear programme.

Perhaps the Japanese government would be well advised to follow the example of German President Frank-Walter Steinmeier, who on 1 September 2019 apologized to the Polish victims of German aggression 80 years ago. A gesture by Japan towards the countries it occupied would allow it to start defusing the recurring tensions around the Yasukuni Shrine.

informatique@hirondelle.org (Pierre Hazan) Reconciliation Tue, 10 Sep 2019 10:22:23 +0200
Colombian transition gets confusing with a disarmed FARC and an armed one https://www.justiceinfo.net/en/reconciliation/42329-colombian-transition-gets-confusing-disarmed-farc-armed-one.html https://www.justiceinfo.net/en/reconciliation/42329-colombian-transition-gets-confusing-disarmed-farc-armed-one.html With the announcement on 29 August that they are taking up arms again, Iván Márquez (centre) and minority FARC dissidents are severely disrupting the peace agreement signed at the end of 2016.

A week ago, a minority group of leaders of the former Revolutionary Armed Forces of Colombia (FARC) surprised Colombians by announcing that they would no longer honour the peace agreement signed in 2016. A significant blow to a peace process that has largely been hailed as a success worldwide.

Colombia now faces its most pressing political and security crisis since the failed October 2016 plebiscite on the peace deal and the ensuing renegotiation with its opponents, which resulted in a second and definitive accord that paved the way for 13,302 rebels to abandon their weapons two years ago. And the person who must now defend the success of FARC’s disarming and deal with this crisis is President Iván Duque, who as a lawmaker opposed the deal struck by his predecessor Juan Manuel Santos, and has only shown a lukewarm interest in implementing it.

A new guerrilla?

 “We were close to ending the longest-running conflict in the Western hemisphere through dialogue, but we failed because the establishment wasn’t willing to respect the principles guiding negotiations that agreements will be kept and are entered in good faith. Once they achieved what they wanted, which was our handover of arms, they deliberately tore the peace accord to pieces,” Iván Márquez said on August 29, from an unknown location near the Venezuelan border.

Donning a camouflage uniform and once again stressing his old nom de guerre, Márquez announced “a new stage of fighting” with the rebirth of FARC as a guerrilla group under his command. Surrounded by twenty gun-toting persons, he justified correcting what he described as “the naïve disarming of the guerrilla” and pinned the blame on the Colombian government for its lacklustre implementation of the accord’s programs on rural development, coca crop substitution or political participation.

Former peace negotiators

Márquez isn’t a nobody. He was one FARC’s historic top commanders and their lead negotiator during the four-yearlong peace talks in Cuba. After the former Marxist guerrilla became a legal political party, he topped their list of candidates for the national Congress, which stumbled badly in the ballot box but still received ten seats as part of the peace accord’s provisions. In the end, he decided against taking up his seat in the Senate after his nephew was arrested on drug trafficking charges, before being extradited to the US and eventually entering a plea agreement with authorities there.

Standing next to Márquez was Jesús Santrich, another former negotiator embroiled in legal problems. After being caught apparently planning a drug operation after the peace deal was signed, Santrich was arrested and sought in extradition by the US.

After several months of political bickering between Duque’s government, the transitional justice system, the US Embassy and the Attorney General, they were unable to reach an agreement on how to probe the exact date in which Santrich had been negotiating the drug shipment. That date was crucial, as it determined whether the transitional justice or the ordinary one should try him, and if an extradition was possible. Following this fracas, Santrich ended up fleeing, eroding the credibility of all the institutions involved. Márquez has always claimed Santrich was framed and politically persecuted.

Alongside Márquez and Santrich were other former commanders from FARC’s military wing, several of which formed part of the guerrilla’s Oriental Bloc that operated in the mountains and jungles of southern Colombia and had the largest military capacity within the organization. They include Henry Castellanos (better known as ‘Romaña’), who infamously devised the guerrilla’s strategy of installing checkpoints on highways and kidnapping persons they deemed profitable, and Hernán Darío Velásquez (aka ‘El Paisa’), the alleged mastermind behind the 2002 car bomb in Bogota’s El Nogal Club that left 37 dead and 198 wounded.

92% of FARC disarmed

Márquez’s announcement does not mean however that others will heed his call. Only 987 of the 13,302 former combatants accredited by the government are currently unaccounted for, according to the National Reincorporation Agency tasked with accompanying them in their transit towards civilian life. This means that 92% of FARC are steadfast in their commitment to a life away from arms.

Aware of the security risk created by a revived faction of FARC, President Duque sought to dispel former rebels’ fears that same day. “We maintain our commitment towards those who are genuinely advancing in their process of reincorporation (…) Our message is clear: those who have chosen a legal path under the principles of truth, justice, reparation and non-recurrence can continue to count with the State’s support,” he said, striking an institutional tone that reaffirmed his commitment to reintegration programs and the transitional justice system. Duque has so far dealt with the crisis as a national security priority, labelling the rebels as narco-terrorists, ordering arrest warrants issued, offering US $1 million rewards for any of them and creating a military task force to go after them.

General condemnation

Even though the peace deal has been the subject of much political bickering, Márquez’s announcement was met with a widespread rebuke.

“What he did is the most serious breach in a peace process: he broke the basic rule of non-recurrence and committed the mortal sin of rearming. In practice, it means leaving the field where we’re all playing,” said Santos’s former peace commissioner and lead negotiator Sergio Jaramillo. “At the heart of the peace deal is a transaction: you abandon your weapons and we facilitate your transition into politics. The government kept its word, he didn’t.”

The Special Jurisdiction for Peace – or JEP, as it is locally known – also took action quickly, reinstating arrest orders for the rebels and initiating the legal procedures to throw them out of the entire transitional justice system. “These persons announced they’re rearming, a criminal activity that implies the loss of all benefits, including their presence in the transitional justice system. They must be excluded from it,” said JEP chair Patricia Linares. This would ensure they cannot receive any special criminal treatment and that any crimes committed – both before and after the peace deal – shall not be investigated by the JEP but by the ordinary justice system.

Farc versus Farc

The decision by Márquez also means the Colombian transition will become quite confusing, with a political party and a rebel group both claiming property of the FARC acronym.

Rodrigo Londoño, who was FARC’s military leader and their presidential candidate in last year’s election, quickly distanced himself from his former colleagues. “The Colombian state’s proven failure to fulfil its commitments cannot be responded with other unfulfilments,” said Londoño, whose handshake with President Santos became the icon of the peace deal. Another former FARC member penned a scathing op-ed accusing Márquez of being selfish and disappointing his former comrades in arms. This week, FARC’s political party announced the new rebels will be expelled.

For the moment, the party will have to live with the fact that it chose not to separate themselves from their vastly unpopular name, resorting to a slightly different variation – the Common Alternative Revolutionary Force – as their new name in democracy. In fact, Londoño and others who strongly support the peace deal originally sought a change in name but were defeated internally. Indeed, it was the now fugitive Márquez and Santrich who insisted most on preserving their old acronym, a move that was seen by many of Colombia’s 8,8 million victims of conflict as a slap in the face and proof of their lack of contrition.

This new scenario becomes even more complex with local elections of mayors and governors slated for October. The FARC party will field candidates in 60 different towns and has even found unlikely allies like Luis Eladio Pérez, a former senator they kidnapped for seven years and whose bid for governor of Nariño they now support. If a FARC outside the law acts just as they begin to campaign, risk levels could increase for them.

Peace process at stake

After Márquez’s announcement several questions remain unanswered and could have a negative impact on the Colombian transition.

The exact number and military capacity of this new faction of FARC isn’t clear yet, or what sources of financing it will pursue. Nor is whether it will be able to forge alliances with other criminal groups like the National Liberation Army (ELN) – as Márquez announced – or with the dissident groups that broke away from FARC before the peace deal was signed and were noticeably absent from the group picture last week.

What role Venezuela will play is one of the biggest question marks. Former president Hugo Chávez was instrumental in persuading FARC to sit down and negotiate, but relations with his successor Nicolás Maduro have soured since. In fact, in his speech Duque accused Maduro of harbouring the rebels and requested help from his rival, interim president Juan Guaidó, in prosecuting them.

Given that for years many guerrilla commanders – including Márquez and Santrich – considered Venezuela as a safe haven, the emergence of a new FARC is likely to become a complicated factor in the neighbouring country’s own political crisis and transition.

It is also not clear what support President Duque will get help from his own party, the Democratic Center in solving this crisis. Just as he seeks to allay demobilized combatants’ fears, his mentor, former president Álvaro Uribe, is stating in campaign rallies that the peace deal should be modified and excluded from the Constitution, two ideas that could further increase divisiveness among Colombians. His party is also actively supporting a referendum in which Colombians would be able to vote on whether to abolish the JEP. Uribe even publicly doubted whether FARC is genuinely committed to peace, suggesting that the former guerrillas had always planned on keeping armed and political wings simultaneously.

In the end, the perception of whether Colombia’s peace process is successful is at stake. In the past, no matter how divisive the country’s politics have been over the accord, the Colombian model that managed to disarm 13,000 rebels was considered praiseworthy and effective. That too could change if the country doesn’t find a way out of this crisis.

informatique@hirondelle.org (Andrés Bermúdez Liévano) Reconciliation Mon, 09 Sep 2019 10:32:00 +0200
Finland to set up Truth Commission for the Sami people https://www.justiceinfo.net/en/truth-commissions/42324-finland-to-set-up-truth-commission-for-the-sami-people.html https://www.justiceinfo.net/en/truth-commissions/42324-finland-to-set-up-truth-commission-for-the-sami-people.html The Sami Parliament (pictured) which sits in Inari (Northern Finland) has initiated the establishment of a Truth and Reconciliation Commission.

The Sami people have lived since early times in the vast northern territories of  Scandinavia, where some still make a living from herding reindeer and from fishing. Like the indigenous people of Canada and other big democracies, the Sami have been victim of  violent assimilation campaigns. In Finland, a truth commission is being set up to shed light on this dark past.

They are the last great indigenous people in Europe, and they are defending their rights. Considered as one of the first peoples, they represent a tourist attraction for many visitors who come for snowshoeing, the Northern Lights and Santa Claus's villages. The Sami - often referred to as "Lapps", a derogatory term meaning "ragged" in Swedish - are an indigenous people of 80,000 to 100,000 people spread over the most virgin territories of four countries (Norway, Finland, Sweden and Russia - mainly the Kola peninsula). But the Sami have been and remain discriminated against and they demand recognition, apology and reparation from the States. Norway has set an example, establishing in 2017 a Truth and Reconciliation Commission, whose work is ongoing. In Sweden, the project is in the making. Russia is lagging behind. It seems likely that the Finnish Sami will have their Truth and Reconciliation Commission before the end of the year.

Canada was a source of inspiration and encouragement for them, as Professor Jean-Pierre Massias pointed out at the summer university organized in France in July by the Institut francophone pour la justice et la démocratie on the theme “indigenous peoples and transitional justice”. Marie Wilson, Commissioner of the Canadian Truth and Reconciliation Commission, travelled to Inari, capital of the Finnish Sami people, in February 2018 to share the experience in her country. It has many similarities, since it is not about managing a transition from war to peace or from dictatorship to democracy, but about recognizing and stopping serious violations in a modern state, including forced boarding school internments, dispossession of land and cultural rights, rape and many forms of individual or collective discrimination against citizens historically considered to be second-class.

Tuomas Aslak Juuso
Tuomas Aslak Juuso, Vice-President of the Sami Parliament.

Tuomas Aslak Juuso, Vice-President of the Sami Parliament of Finland, participated in the negotiations for the establishment of this truth commission. He says: “I think the Canadian example has triggered political will among Sami representatives. It was the crucial factor for us to take the leap and believe in this kind of process. The South African model is not very relevant for us, in a country that is quite peaceful. Basically, some of the basics human are secured for the Sami people, which is of course different from South Africa [during the Apartheid era].” The initial proposal came from the Sami Parliament, which has existed in Finland since 1974 but has only been recognized by the Constitution since 1995. It is based in Inari.

Building a stronger society

Tuomas Aslak Juuso, who himself was a reindeer herder before becoming an activist and entering politics, describes a slow and only recent awareness of their rights by the Sami people. He says complaints have only been coming before the courts for less than ten years. So why now? “I wonder about that,” he says. “Information has become more accessible, our people have better knowledge of their rights, a lot of NGOs have come from abroad... and people are starting to use that.”

In Helsinki as in Inani, there does not seem to be any desire to work in a hurry. Negotiations for the establishment of the truth commission have been ongoing for more than four years. “It is about building a bridge between two peoples,” says the Deputy Speaker of the Sami Parliament. “Today, even in a modern democratic society, it is difficult to build up understanding. The minority is always in a different position and its message is drowned out by the majority society knowledge and discussion in the media, etc. It is about creating a tool for communication between two peoples. It is not only about better respecting rights and identifying what are the crisis points, it is a tool for the government to build up a strong relationship with the people in order to have a strong society. When you don’t have conflicts, you have of course a much better society.”

Frank consultations

Last year, the Prime Minister’s Office appointed an expert, who conducted consultations with the Sami community in their territories from 2 May to 29 June 2018. A budget of €1.5 million has been adopted by the Finnish Parliament for 2019 to establish a Truth and Reconciliation Commission. The official announcement of its creation is expected soon.

“It will be a political decision, not a law, that allocates funds for this commission, and it will most likely be under the responsibility of the Justice Ministry,” says Tuomas Aslak Juuso. The commission will operate on a voluntary basis. It will have access to State archives and may interview former officials, but it will not be able to force them to testify. And the truth component of the commission will undoubtedly prevail over reconciliation, if its commissioners follow the report published at the end of the consultations.

The government had to change its narrative along the way, with many Sami vehemently rejecting the idea that it could be first a reconciliation process. The Sami want the facts to be established first. “An apology from the government to the indigenous Sami people possibly made during or after the process is not expected per se, if the intention is merely to offer it as a so-called symbolic gesture without any concrete content,” the report warns with much transparency. The comments of the Sami interviewed during the consultations – transcribed while preserving their anonymity – are not watered down. “Could it be changed to just be an awareness commission, forgetting reconciliation,” asked one. “I know the old people in our area and, for sure, for these old people this is like the last violation.”

“The Sami people has been eliminated”

One of the issues particularly raised during the consultations was the experiences of boarding schools and the resultant loss of language and culture, says the report. But one of the biggest issues for this traditionally nomadic people is territory, as expressed by one of the people consulted. “Sami area is the Sami area, but the Finns interpret it such that a Sami area is an area in which there are points where Samis live here and there. For example, the Act on Forest Administration, which is based on the fact that everything, the whole region is state owned land, but there are just a few areas where there are Sami dwellings. And such an interpretation has eaten away the foundation of the entire Sami people. The Sami people has been eliminated. In every way.”

The mandate of the commission is expected to go back to Finland’s independence in 1917 from the former colonial power Russia. For the Sami, the writing and recognition of their history is another key demand, as explained by one of those consulted in 2018: “It’s as if our history has been deleted because, when we go to a museum, there are rock paintings but it does not say that they are by the Sami. Then again, the Finns have archaeology and it’s said that they were Finnish, but the Sami are like sparrows that have just landed here. There’s nothing, history on a level of education and science has been taken from us.”

No transnational commission

The issue is both national and transnational for the Sami, some of whose leaders would have liked a truth commission common to their entire territory. A Sami Council exists, which includes representatives of the four countries in which they live. But for States, this would have been tantamount to encouraging the Sami people’s recurrent autonomist tendencies. In addition, the Norwegian Truth Commission is dealing with violations committed against both the Sami and a second minority of Finnish origin, the Kven. Official contacts are planned, however, between the Norwegian and Finnish commissions on issues and violations that have a cross-border dimension.

A major challenge for the Finnish commission, Tuomas Aslak Juuso predicts, will be to communicate its proposals in a form that is “acceptable and understandable” to Finnish society and the Helsinki Parliament, without which they will not work. Another major challenge will be, according to him, to “get the people share their stories in such a way that the Commissioners have access to the truth in a complete and understandable way”. The Sami of Finland speak three different languages, two of which have a small number of speakers, and therefore of translators. The future commission is expected to have five commissioners, three selected by the Sami institutions and two by the government. Its president, who has not yet been named, will have the heavy responsibility of building trust on both sides of society. Its detailed mandate will be made public with the official announcement of its creation, which is expected by the end of 2019.

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informatique@hirondelle.org (Franck Petit) Truth Commissions Fri, 06 Sep 2019 10:41:14 +0200
Gambia: twenty years later, student victims are still crying out for justice https://www.justiceinfo.net/en/truth-commissions/42317-gambia-twenty-years-later-student-victims-are-still-crying-out-for-justice.html https://www.justiceinfo.net/en/truth-commissions/42317-gambia-twenty-years-later-student-victims-are-still-crying-out-for-justice.html « The people who shot at us are still in the system, » says Abdou Karim Jammeh, one of the students seriously injured during the repression of the April 2000 demonstration.

Before the Truth, Reconciliation and Reparations Commission in The Gambia took a break to go and meet the diaspora, it started to hear testimonies on the repression of a student protest that led to the death of at least fourteen students in 2000. Victims expressed their frustration and sense of abandonment.

Sira Barry lied on her bedside in a modest two-bedroom house in Brikama, about an hour drive from Banjul, Gambia’s capital city. At her parlor to the left was a bed and a chair to welcome guests. She was lying on a mat. She was sick and could not talk to journalists. Sira, fondly called Suba, is the only surviving direct member of the family of Ebrima Barry, a student allegedly beaten to death by members of the Gambia Fire and Rescue Services in 2000. Barry’s death prompted a demonstration that cost their lives to at least 14 students. 

“In our family, we have not seen any investigation report, we have not heard of any arrest in connection to our brother’s death. And we have not had any compensation from the state,” said Alagie Barry, a brother of Ebrima of a different mother, declining to make any further comment. He said their family delegated to Alagie’s brother Mbemba Barry, a police officer, to speak on their behalf. Alagie and Ebrima shared the same father Alieu Barry, who had four wives. Alieu died in 2006, without seeing justice for his son. Ebrima’s mother, Boto Sanneh, died in 2002. Ebrima’s four other siblings from Alieu and Boto followed him to the grave without any promise of justice being fulfilled. “They all died after the death of Ebrima,” said Alagie. 

The rape of Binta Manneh

The student demonstration was a dark period in Gambia’s recent history. Like all of the country’s past under the former dictator Yahya Jammeh, in power from 1994 to 2017, it is now being revisited by the Truth, Reconciliation and Reparations Commission (TRRC). Seven victims of the events have already testified. More are expected to appear when the public hearings resume on September 16, including alleged perpetrators. 

The April 2000 student protest was precipitated by two major events: the death of Ebrima Barry and the rape of Binta Manneh. In 2000, Binta was 15. An athlete, she had travelled from her native Brikama Ba village to represent her school as a sprinter in the national inter-school competition. Binta and her team had gone to the Independence Stadium in Bakau, near Banjul, where the competition was being held. At around 8 p.m. she left the stadium and went out to buy biscuits. 

“I found two security officials outside. One of them held my hand and when I tried to move my hand from him, he told me: ‘Don’t you know I am security officer?’. They took me to a dark corner. He raised my skirt up and cut off my underwear. He placed his elbow on my chest and forcefully slept with me,” said Binta before the TRRC on August 20. “I was at the hospital for a week. I was also bleeding for 4 days. I suffered anxiety later because of trauma. I went back to school but the students talked about it [the rape] everywhere I go. I decided to leave school,” testified Binta. She was married off by her parents at that teenage age. But that never took away how the society looked at her. “I was ashamed of myself,” she said. “You should not be,” replied the chairman of the TRRC, Lamin Sise. “The man who forced himself on you should be the one to be ashamed of himself.”

Binta said she was later told that the person who raped her was a member of the paramilitary section of the police. It was the same police who took over the investigation into the attack. “I was going to meet the investigators in Banjul with my aunt but they later told me that I was lying,” she recalled. 

Like Ebrima Barry’s family, Binta got no justice for her rape.

Security forces shooting at unarmed students

Under the direction of the national student union called Gamsu, students started to demand justice for Ebrima and Binta, both victims of security forces. The repression of that demonstration would kill 14 of them, injuring dozens of others. 

When the student demonstration began, country’s ruler Yahya Jammeh was in Cuba. His vice-president who was in the country at the time, Dr Isatou Njie Saidy, claimed the protesters were carrying guns, justifying the use of force. A statement from the authorities claimed the protest was empowered by “bad elements” in the society who were not students. "There is no doubt that the crisis was incited by the Gambia Students Union (Gamsu) and aggravated by some bad elements and bandits who took advantage of the situation, disguising themselves as students and encouraging the crowd of so-called demonstrators to the damage," the government said in a statement at the time. 

However, these claims were discredited in a report of an inquiry published in August 2000. The 9-member commission of inquiry heard the testimonies of 59 witnesses from security forces, students, parents, ordinary people and school administrators, among others. It recommended the prosecution of security forces who had opened fire at the students. “Top police authorities on the ground at the Kanifing on the 10th April 2000 should accept responsibility for the tragedy that happened; namely secretary of state for the interior Ousman Badji, deputy inspector general of police Sankung Badgie, Commissioner of operations Baboucar Sowe and assistant superintendent of police Momodou Ceesay,” said the report. Security personnel “should assume responsibility for the deaths and injuries that occurred as a result of gunshots and face prosecution for their acts,” the report added, also naming among those responsible Gorgi Mboob, the current head of the anti-crime division in the Gambian police. Mboob and his colleagues “carried an AK47 rifle and fired the guns at the direction of the students on the St. Augustine’s Senior Secondary School compound” and “should face appropriate charges”, the report said. The Commission also asked for the prosecution of seven student leaders who had called for the protest, including the president of Gamsu Omar Joof and its vice-president Alhagi S. Darboe.

However, nothing came out of it. No one was prosecuted for the death or torture of students. In April 2001, the National Assembly even passed a law indemnifying people involved in quelling the protest.

“We felt abandoned by this government”

Abdou Karim Jammeh was one of the students who were badly hurt during the protest. He was shot on his knee cap. Now he uses a walking stick. “People who shot us are still in the system and are being paid. It angers us that after changing the government, there is still no justice. Perpetrators are free and enjoying and victims are crying. It is very unfair,” he told JusticeInfo.  

In 2017, Jammeh and his colleagues petitioned Justice Minister Abubacarr Tambadou demanding the implementation of the recommendations of the 2000 commission of inquiry. Jammeh said they have since not gotten any response from the authorities. 

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Justice was not the only thing that evaded the victims. After the shooting, Sainey Senghore, Assan Suwareh and Yusupha Mbaye were evacuated to Egypt for further treatment. Mbaye was shot at his spinal cord, confining him to a wheelchair. Senghore, who later developed gangrene on his foot, told the TRRC that only a month of their medical bill was paid by the government. Their Egyptian doctor had to volunteer to pay the other month. They would later be returned to the Gambia but their medical problems continued. At the airport, their medical reports were taken from them. The explanation given was that the case of the students was a political one. 

The victims have been seeking further medical treatment to this day. In 2017, the Turkey embassy in Gambia volunteered free visas and free treatment for them. They were only required to buy their own air tickets. The government claimed it had no money. The Gambia Ports Authority pledged tickets for three of the victims. But until today, the victims could not secure the extra two tickets. “We felt abandoned by this government,” said Abdou Karim.

In 2019 the TRRC established a medical board to review the health status of the victims. The Board again recommended an abroad treatment for four students but so far nothing happened. Ebou Faye Njie, from the TRRC victim support unit, told JusticeInfo they are working on a remedy to the victims’ health problems. It is not clear what solution they have and when it would be implemented. 

“For 19 years, we have been crying for justice,” said Senghore before the TRRC. Their cry continues. And Senghore’s dream of studying medicine, like those of his schoolmates, remains a pipe dream. 

informatique@hirondelle.org (Mustapha K. Darboe) Truth Commissions Thu, 05 Sep 2019 09:49:57 +0200