Justiceinfo https://www.justiceinfo.net Fri, 27 Mar 2020 11:27:33 +0100 Joomla! - Open Source Content Management en-gb Asaba massacre memorial still in the pipeline in Nigeria https://www.justiceinfo.net/en/justiceinfo-comment-and-debate/opinion/44045-asaba-massacre-memorial-still-in-the-pipeline-in-nigeria.html https://www.justiceinfo.net/en/justiceinfo-comment-and-debate/opinion/44045-asaba-massacre-memorial-still-in-the-pipeline-in-nigeria.html Banners and candles are displayed during a ceremony commemorating the Biafran War. © Sia Kambou / AFP

A thousand dead in three days. Even today, the name Asaba resounds in the memory of Nigerians as that of one of the great massacres of the Biafran war. But more than 52 years later, the defenders of a dignified memorial continue to fight for it.

The city of Asaba is the capital of the oil-rich Delta State in the south-south region of Nigeria. It lies on the western bank of the Niger river. It is not well known beyond Nigeria, but still has powerful resonances for Nigerians because of events in its environs in the first year of the country’s civil war in October 1967. Federal government troops pursuing the Biafran army entered the town and, over three days, massacred at least a thousand people. The town was left in ruins and the survivors traumatised.

The events of that terrible time remain close to people’s hearts. When Nigeria returned to civilian rule in 1999 after decades of military governance, a body called the Human Rights Violations Investigation Commission – popularly known as the Oputa Panel – received some 10,000 petitions about abuses that had taken place between 1966 and 1999. They included the Asaba massacre. But few cases were examined in any depth. The result was that deep dissatisfaction remained.

The massacre is still little acknowledged and a highly sensitive issue. According to historians Elizabeth Bird and Frazer Ottanelli, the massacre is not well known because it was covered up at the time. They argue that this was done with the connivance of Nigeria’s allies and backers, such as the British Labour government of Harold Wilson. The fact that the military commander whose soldiers committed the atrocities, Muritala Muhammed, became Nigeria’s head of state in 1975 ensured that the suppression of the truth continued.

The Nigerian civil war broke out in July 1967 when the Igbos of several eastern states, who were mainly Christian, formed a breakaway republic of Biafra in response to massacres carried out by troops of the Northern (Hausa) dominated government. It’s estimated that more than a million people died during the three-year conflict, many of malnutrition as a result of an economic blockade. The fighting ended in January 1970 but there continue to be tensions between Christian and Muslim populations in regions of Nigeria.

The Asaba massacre was the single worst atrocity of the civil war. It is part of local folk memory. But, as with many of the events of the civil war, it is not taught in Nigerian schools.

Several years ago, the former leader of the federal government during the civil war, General Gowon, tendered an apology for the atrocities during a private visit to Asaba. But no further action followed.

Campaigners believe it is time that the massacre was officially memorialised. They argue that the obvious location for a permanent memorialisation is Asaba’s historic Mungo Park House.

The memorial

Mungo Park House is a pre-fabricated wooden structure dating from 1886. It is thought to be the last existing building once owned by the Royal Niger Company. Responsibility for the building was assumed by Nigeria’s National Commission on Museums and Monuments in 1997 but without government funding the Commission has been unable to renovate it or develop the project.

For some, building a memorial would be beneficial for people living in the area. As Bird and Ottanelli point out, countries elsewhere in West Africa are discovering the value of cultural heritage. For example, Ghana’s active promotion of its world heritage sites has boosted national prestige and brought considerable tourist income.

In contrast, Nigeria lags behind.

Reconciliation is only possible when it is closed by a consciousness of remorse and compensation, no matter how symbolic.

In 2017, there was a 50th anniversary remembrance event in Asaba, attended by the Nobel laureate, Wole Soyinka, who observed that reconciliation is only possible when it is closed by a consciousness of remorse and compensation, no matter how symbolic.

The state governor was there, but there was no representative from the federal administration, indicative of the government stance that the war with Biafra is best forgotten in the interests of national unity.

Given this, the struggle to secure a memorial is likely to continue for some time. The Conversation


Jon Silverman, Research Professor Media and Criminal Justice, University of Bedfordshire.

This article, slightly modified by Justice Info with the agreement of the author, is republished from The Conversation under Creative Commons license. Read the original article.

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jean-rene.berrenger@hirondelle.org (Justiceinfo.net) Opinion Thu, 26 Mar 2020 09:09:18 +0100
"The Seychelles Commission is not a court, it seeks to bridge divisions" https://www.justiceinfo.net/en/truth-commissions/44041-gabrielle-louise-mcintyre-the-seychelles-commission-is-not-a-court-it-seeks-to-bridge-divisions.html https://www.justiceinfo.net/en/truth-commissions/44041-gabrielle-louise-mcintyre-the-seychelles-commission-is-not-a-court-it-seeks-to-bridge-divisions.html Mid-2019, files from the National Assembly were handed over to the president of the Seychelles truth commission, Gabrielle Louise McIntyre (left). In fifteen months of work, a parliamentary group had received 315 complaints of victims. 16% were seeking to recover their property, 15% truth and justice, 10% an apology and 58% financial compensation. © Thomas Meriton

Before being appointed in 2019 as Chairperson of the Truth, Reconciliation and National Unity Commission (TRNUC) in the Seychelles, Australian jurist Gabrielle Louise McIntyre served at the UN Tribunal for the former Yugoslavia in The Hague and at the Mechanism charged with its residual tasks. Six months after the opening of public hearings, which the Covid19 pandemic is now putting it on hold, McIntyre answers our questions.

JUSTICEINFO.NET: So far, what has been the biggest hurdle the TRNUC has faced?

GABRIELLE LOUISE MCINTYRE: It is difficult to identify the biggest hurdle so far. One hurdle is of course the passage of time, because of which people don’t remember or claim not to remember the events alleged. Another hurdle is keeping on top of the number of complaints that are being heard simultaneously, around 130 currently, and recalling the evidence that has already been given in relation to a case. We cannot refresh our memories in an efficient manner because we have a backlog in the transcription of the hearings. Where that record is in Creole, it has to be translated into English, the working language of the Commission, which creates further delays. But even scheduling the hearings involves overcoming hurdles, particularly in relation to locating witnesses, either in the Seychelles or abroad, so that we can serve them with a request to appear.

Based on some testimonies, there has been a lack of material evidence or access to it for the TRNUC. Does this affect the Commission's work?

A lack of evidence makes it difficult to make a determination and the Commissioners have to decide what the unavailability of evidence signifies in any particular case.

Does that mean that you've been unable to establish the facts in some cases?

The Commission has to try and find that evidence through other sources. For example, the lack of availability of police records has led the Commission to seek evidence from members of the police force at the time of the alleged complaint and obtain evidence directly from them. This method has been used in relation to the disappearances of Gilbert Morgan and Hassan Ali and is being used in relation to numerous other cases.

The Commission is not seeking to punish or alienate perpetrators. It is trying to bring them into a process of reconciliation”

In the past months we’ve often had the impression that the Commission has a hard time reaching conclusive findings; you hear evidence from victims but rarely get decisive and helpful evidence from former alleged perpetrators, or state authorities…

The Commission will reach conclusive findings on a case when it has exhausted its investigations. At this point in its proceedings it has not sought to make conclusive findings because it is still assessing the evidence. Most persons accused of the perpetration of gross violations of human rights before the Commission are served first with a suspect notification and the right to make a written response to that notification. The Commission has not yet reached the stage in its proceedings when those against whom credible allegations have been made and who have been given the right to answer in writing will be called to testify. It needs to build its evidentiary basis prior to calling these people to testify. It is not seeking to punish or alienate perpetrators. It is trying to bring them into a process of reconciliation and give them the opportunity to explain the context in which they carried out human right violations, to seek forgiveness from the complainants but also from society.

The Commissioners are aware that people are not telling them the whole truth”

Some feel that the commissioners do not push hard enough for answers…

The Commissioners do not believe a combative attitude towards witnesses is conducive to building a collective spirit focused on reconciliation. The Commission is seeking to build trust with the community and confidence in all persons that it will accord them a fair process. The Commissioners are aware that people are not telling them the whole truth, but it is also confident that as the process continues people that have been reluctant to be forthcoming will be more likely to do so. Indeed, it already has examples of witnesses coming forward and telling the Commission half of what they know and a few days later advising that they wish to come back because they have more information. Reconciliation is about cooperation, you can’t force reconciliation on people, and the Commission is seeking cooperative relationships with complainants, witnesses, suspects and perpetrators. It has to be underscored that the Commission is not a court, it is not judging people, it is seeking to bridge divisions between people.

With regard to investigations, concerns have been raised too. Do you have a strong team?

Investigations are led by the Commissioners with the support of five investigators. Resources are extremely limited and only one of our investigators has any previous experience in investigative activities. In relation to each case we gather as much documentary and other information as we can, locate important witnesses, request written responses, send out suspect notifications etc. Once we have exhausted investigative efforts and as soon as we have all the relevant transcripts in relation to the evidence heard in a case, we will make determinations.

February was the deadline to file complaints – how many have been lodged?

We had 426 cases as of 9 February 2020, but a few have been withdrawn and some have been ruled inadmissible as they do not allege a human rights violation or a connection to the coup d’état of 1977. I would say we have approximately 420 cases, but admissibility decisions remain outstanding on approximately 200 of these cases. In most of the outstanding cases we need further information from the complainant.

Will the Commission achieve its mandate in 3 years?

There is no doubt that it will be challenging and that we do need more resources, but we are committed to doing all within our power to complete our mandate in that time frame. For a small country like Seychelles it is important that a process such as this not be allowed to linger and drag on. Its effectiveness will be reduced by long delays and its ability to meet its objectives seriously undermined.

Interview by Patsy Athanase, our correspondent in The Seychelles

SEYCHELLES' TRUTH COMMISSION

Set up in May 2019, the Seychelles’ truth commission is listening to complaints on human rights violations in the island nation following the June 5, 1977 coup d’état, led by the then Prime Minister France-Albert René. René, who died in February last year, established a one-party state and was the president between 1977 and 2004. Multi-party democracy was re-instituted in 1993. The Commission’s mandate is to shed lights on events leading up to the coup and its aftermath until the return to a multi-party system. Its sessions are held over a ten-day period, every month, since September 2019, and are broadcast live on national TV and streamed online. The Commission has seven members, including two foreigners who are non-resident in Seychelles, of whom the president Gabrielle Louise McIntyre, from Australia. The Commission is planned to work for three years.

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jean-rene.berrenger@hirondelle.org (Patsy Athanase) Truth Commissions Tue, 24 Mar 2020 09:12:41 +0100
Truth on pause in Gambia, Seychelles and Colombia https://www.justiceinfo.net/en/truth-commissions/44037-truth-on-pause-in-gambia-seychelles-and-colombia.html https://www.justiceinfo.net/en/truth-commissions/44037-truth-on-pause-in-gambia-seychelles-and-colombia.html Wherever the virus is present, the consequences of the Covid-19 epidemic are beginning to impact on ongoing transitional justice processes. This is the case for the truth commissions in the Gambia and Seychelles as well as for the Special Jurisdiction for Peace in Colombia. © JusticeInfo.net

In the Gambia and the Seychelles truth commission hearings have been suspended last week due to the Covid-19 pandemic. Public hearings will not resume in the Gambia before early June, at the earliest, after Ramadan. It remains unclear if they can resume in April in the Seychelles. In Colombia [read box], the Special Jurisdiction for Peace suspended its public hearings and started working remotely.

Gambia’s Truth, Reconciliation and Reparations Commission (TRRC) has suspended its public hearings and outreach activities on March 18, a day after President Adama Barrow declared all schools and universities closed for 21 days and banned public gatherings. On March 15 the first case of Coronavirus was found in the small West African country, on a 20-year old woman who had flown from England.

“The public hearings will not resume until after the end of the month of Ramadan, around the first week of June. Outreach activities may resume when considered safe to do so,” said Baba Galleh Jallow, the TRRC’s executive secretary. The Commission’s secretariat will be partially closed, said Jallow, but staff may choose to come to the offices or work from home. 

217 witnesses have testified before the TRRC

As things stand, the TRRC will lose two weeks of public hearings. “Unless the suspension of public hearings is forced to go beyond the first week of June, our work plan will not be affected that much,” Jallow told Justice Info, “but if the crisis persists, yes, it may.”   

The thirteenth session which has now been suspended was supposed to focus on evidence of unlawful attacks on road users by former president Yahya Jammeh’s convoys. Only two witnesses, Musa Sallah and Abdoulie Barry, had time to testify. The total number of witnesses who have appeared before the Commission since the commencement of the public hearings on January 7, 2019, is now 217. They include 40 alleged perpetrators and adversely mentioned persons, and 25 Gambians from the diaspora who testified via video. 

Since the start of its public hearings, the Commission completed 11 themes, including the circumstances surrounding the July 22, 1994 coup, the November 11, 1994 execution of soldiers, the June 1995 murder of former Finance minister Ousman Koro Ceesay, the violations and rights abuses carried out by the Junglers, witch-hunting by Jammeh, attacks on religious freedom, the April 2000 killings of 13 students, the crackdown on the media. 

Jammeh’s HIV/AIDS treatment on the work plan

The main themes remaining on the Commission’s work plan, according to Lamin Sise, the Chair of the TRRC, are Jammeh’s HIV/AIDS and other diseases alternative treatment, enforced disappearances, the case of the 44 Ghanaians and other West African migrants killed in July 2005, the April 2016 incidents involving the National Intelligence Agency (NIA) and resulting in the death in custody of United Democratic Party member Solo Sandeng, as well as institutional hearings on the NIA, the judiciary, the National Drug Law Enforcement Agency, additional hearings on sexual and gender-based violence, and, again, the Junglers.

Sise said the Commission intends to conclude its public hearings during the first week of October, 2020. “The rest of the year will be devoted to preparation of the final report of the TRRC. As and when required, occasional public hearings may be convened,” Sise said.

Lockdown in the Seychelles

The Seychelles’ Truth, Reconciliation and National Unity Commission (TRNUC) is also on lockdown, following the Covid-19 outbreak in the island nation. Since March 14 six persons have tested positive, including two on March 18. The patients include two Seychellois and four foreigners (a Dutch couple, one Ukrainian man and his Mauritian girlfriend). 

As a result, in an email to all media houses on March 19 the Commission's communication and outreach officer Tannia Labiche said the TRNUC “was implementing a lockdown, starting today for two weeks with a provisional return to work date on Monday 6th April 2020”.

The Seychelles’ usual working schedule is to hold two weeks of public hearing at the beginning of each month, but it also holds ad hoc sessions as and when necessary. The last March session, which took place from March 2 to March 13 saw the highest number of hearings behind closed doors. Speaking to local newspaper Seychelles Nation on March 14, the commission's chairperson Gabrielle McIntyre said one of their biggest challenges remains to get complainants and witnesses to come forward and speak publicly. “Normally perpetrators do come forward, tell what they did and why they did it. Here in Seychelles it is a very different situation. It's such a small country that perpetrators are afraid of coming forward and admitting it, and how they would be treated by people in the society”, she said.

The TRNUC is investigating human rights violations following the June 1977 coup d'État and the subsequent one-party state dictatorship. It started its hearings in August 2019, and has two and a half years left to complete its work. Victims had until last month to lodge their complaints.

COLOMBIA’S TRANSITIONAL JUSTICE ON HOLD

The work of Colombia's transitional justice system has also been severely disrupted after the country registered its first confirmed case on March 6th. Colombia registered 231 confirmed cases of Covid-19, including two deaths, as of Sunday March 22nd. After one week of suggested self-isolation, several cities and regions went into local lockdowns and the entire country will go into mandatory lockdown beginning, this Tuesday.

The Special Jurisdiction for Peace (JEP), the judicial arm of the system, began working remotely a week ago, suspending public hearings and court terms on all proceedings with the sole exception of habeas corpus. Justices on the tribunal's Judicial Panel for Acknowledgement have continued work on their macro-cases, interviewing victims via teleconference and registering victims and organisations as interested parties, including the Patriotic Union political party decimated by targeted murders and attacks in the 1980s and 1990s. They also extended the timeframe for victims of kidnapping by FARC to be able to submit their written observations.

The JEP's decision initially foresaw four days of interruption, which were then extended to two weeks. Its main problem is that for the moment its justices can only deliberate remotely but not rule, a decision that could change in the short term given President Iván Duque's announcement on Friday of a three-week nationwide lockdown until April 13th and his call for courts to function online. In the long run, the epidemic will probably force Colombia's justice system - including the JEP - to transition from a heavily face-to-face model to a more tech-savvy one.

The Truth and Reconciliation Commission (TRC) has seen its activities strongly affected, suspending dozens of meetings and closing down its 28 regional ‘houses of truth’ where it listens to victims. Nonetheless it had already come up with a plan for three weeks of remote work before Duque's decision, which has included strengthening its social media presence as an outreach strategy, releasing a 24-minute documentary explaining its work one year into its three-year mandate and moving online testimonies with victims - including in 23 other countries.

One of its major challenges will be choosing one new commissioner, after journalist Alfredo Molano died in October and a public call for candidates fielded 155 applications. The TRC will probably have to remotely interview candidates and come to a decision, which as JusticeInfo pointed out is a unique opportunity to build its credibility in a scenario of political bickering around truth and historical memory.

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jean-rene.berrenger@hirondelle.org (Justiceinfo.net) Truth Commissions Mon, 23 Mar 2020 09:54:46 +0100
Can the Kosovo zombie court come to life? https://www.justiceinfo.net/en/justiceinfo-comment-and-debate/podcast/44029-can-the-kosovo-zombie-court-come-to-life.html https://www.justiceinfo.net/en/justiceinfo-comment-and-debate/podcast/44029-can-the-kosovo-zombie-court-come-to-life.html The flag of Kosovo, independent from Serbia since 17 February 2008. © Armend Nimani / AFP

You’re in lock-down? Listening Stayin’ Alive? May be the right time to finally seat down and learn and laugh about Kosovo’s « zombie court », as nicknamed by Justice Info’s apocalypse freak correspondents and partners, Janet Anderson and Stephanie van den Berg. Lately, confidential indictments has been filed by the Kosovo Specialist Chambers’s (KSC) prosecutor, that still doesn’t help thinking that it can bring a form of acceptable justice to Kosovo population. At the end of this edifying podcast you will hear Maj Grasten, Asymmetrical Haircuts’ guest this week, taking a deep breath… before venturing to say that something might happen, this year 2020, at the KSC! Another good reason to stay alive.

To listen to the podcast, click on the "play" button below:

We finally got around to talking about the Kosovo Specialist Chambers — or the Kosovo Court for short — with Maj Grasten. We met Maj at the annual meeting of the International Criminal Court, the Assembly of States Parties, and she is at Copenhagen Bussiness School and specialized in the Rule of Law missions so, the ideal candidate to spar with us about why the Kosovo court was set up.

We spoke with Maj via Skype in December, and at the time things were very quiet around the court, leading Maj to dub it a ‘ghost court’. But last month things suddenly got a lot more interesting when prosecutor Jack Smith announced he was ready to issue indictments.

In this podcast we talk extensively about the origins of the court which was conceived in the aftermath of the uproar caused by revelations in a book by former International Tribunal for the former Yugoslavia (ICTY) prosecutor Carla del Ponte. In her 2008 memoir The Hunt, Me and War Criminals she alleged that the Kosovo Liberation Army (KLA) harvested organs from Serb prisoners during the conflict in the late 90’s.

Two years later the Council of Europe came with a bombshell report by Swiss senator Dick Marty, known as the Marty report, into the allegations, which led the European Union and the United States to pressure Kosovo to accept a special court to be set up to try the alleged KLA war crimes. Here’s a link to a story Stephanie did at the time for International Justice Tribune.

Maj did not give specific reading/watching recommendations, except to suggest science fiction and zombie apocalypse books were a good escape from reality. (Maybe extra appropriate for this COVID-19 month? ED.) This is enough for Stephanie to hijack this section of the shownotes to recommend the wonderful Aleksandar Hemon who also has an aptly named novel called The Making of Zombie Wars. In this article for the equally great Kosovo2.0 magazine he talks Balkans, displacement and working on science fiction movies.

Janet can only counter with Pride and Prejudice and Zombies, which is irrelevant but gloriously silly.

Asymmetrical Haircuts podcastASYMMETRICAL HAIRCUTS

This podcast has been published as part of a partnership between JusticeInfo.net and Asymmetrical Haircuts, a podcast on international justice produced from The Hague by journalists Janet Anderson and Stephanie van den Berg, who retain full control and independence over the contents of the podcast.

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jean-rene.berrenger@hirondelle.org (Justiceinfo.net) Podcasts Thu, 19 Mar 2020 14:39:44 +0100
Political tussle over truth and memory in Colombia https://www.justiceinfo.net/en/truth-commissions/44027-political-tussle-over-truth-and-memory-in-colombia.html https://www.justiceinfo.net/en/truth-commissions/44027-political-tussle-over-truth-and-memory-in-colombia.html In July 2019, in Cartagena, a first ceremony in honour of victims of sexual violence is organized by the Truth Commission of Colombia. © Comision de la Verdad

Truth is purportedly the first casualty of war. It is also the object of constant wrangling in Colombia’s transition. While many Colombians are looking towards the Truth Commission to shed light on 52 years of conflict, President Iván Duque has been promoting other spaces in which sectors critical of the peace agreement have been flocking to.

Colombia’s Truth and Reconciliation Commission (TRC) just completed its first in a three-year term, in which more than establishing what happened, it seeks to find a common ground that can foster reconciliation. “Our goal is not to disrupt this country, point fingers or sow more hate and division, but rather to arrive at a truth that may give all Colombians a wider understanding on how, whether by action or omission, we arrived at a human tragedy that numbers almost 9 million victims,” said Jesuit priest Francisco de Roux, the Commission’s president.

To do so, the TRC first had to agree on what its strategy to build truth would be. Part of its eleven commissioners initially viewed their central mission as cobbling together an in-depth report on what had led Colombia down this path. Another half saw it more along the lines of the ‘third generation’ TRCs like Peru’s, which sought to involve society in public hearings where truth is clarified and to enable collective catharsis from atrocities. In the end, they settled on doing both. While ten teams are working on gathering information, others have been organising gatherings in which citizens can share their stories and reflect together.

At the same time, the TRC is one of three institutions in a broader transitional justice system, in which a Special Peace Jurisdiction (JEP) is responsible for judicial accountability and another agency seeks out persons who have been deemed missing. It’s the TRC’s responsibility to certify which perpetrators have satisfactorily contributed to truth and may therefore qualify for more lenient sanctions.

5.243 victims heard by the TRC

Until December, the TRC had listened to 5.243 victims and 10.755 persons, in formats including individual interviews, collective testimonies and hearings with names such as ‘encounters for truth’ and ‘dialogues for non-recurrence’ in which it has sought citizens’ take on how to solve problems like the alarming rise in attacks against human rights defenders.

However, its work has had limited national visibility, undercut by President Iván Duque’s decision not to attend its inauguration in November 2018 or give it any public recognition. This political reality makes widening the TRC’s credibility all the more important, with replacing journalist Alfredo Molano, who died of cancer in October, one of its key challenges today. A new commissioner will be chosen on April 1st, after a public call for candidates.

In a scenario in which the transitional justice system has been the object of political bickering, this could provide a unique opportunity for the TRC to select someone capable of allaying the fears of population groups who have been sceptical of its work on account of a perceived left-wing and academic bias. These include businessmen, right-wing parties and the military, even though one of its commissioners is a retired army major.

Colombia's Truth commission
Dialogue session organized by the Truth Commission in the city of Quibdó (western Colombia). © Comision de la Verdad

A decade’s work seeking truth

Segments of society that are wary of the truth commission are already finding a new ally: the national government. Just over a decade ago, the demobilization of paramilitary groups during Álvaro Uribe’s government (2002-2010) brought a significant feat with it: a Historical Memory Group was created to begin documenting dark episodes of Colombia’s recent history, with an emphasis on emblematic crimes perpetrated by those non-state actors.

In 2011, when his successor Juan Manuel Santos signed a landmark victims’ bill to officially acknowledge the victims of the armed conflict and begin redressing them, this group got a major boost. It then became a government agency called the National Centre for Historical Memory, which scaled up research on violence during conflict and extended it to armed groups, including the Revolutionary Armed Forces (FARC) and National Liberation Army (ELN) guerrillas and state actors.

Led by respected sociologist Gonzalo Sánchez, the centre spearheaded an impressive body of academic work. Over two different administrations, it has produced 102 book-length investigations documenting human rights violations and diverse effects of Colombia’s conflict, ranging from forced displacement, land dispossession, sexual violence and kidnappings to violence towards indigenous communities, local politicians, journalists or transgender persons. With its wide scope and dedicated teams of researchers, this corpus has led many to believe that Colombia has already advanced much towards building the truth.

These are also the reports that the TRC has used to feed its work and that the JEP has been using to decide which international crimes it prioritises and to build its macro cases. Yet, amid the partisan bickering and widespread polarization that engulfed the peace deal with FARC, the centre has recently been caught in political turmoil.

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The Memory Centre’s sudden swerve

As President Duque charged against a transitional justice system he and his party say they don’t trust and returned to Uribe’s narrative that Colombia never suffered an internal armed conflict but a terrorist threat, they also paved the way for an institution whose work had garnered a rare instance of political consensus to switch courses.

After Duque’s first candidate to lead the National Centre for Historical Memory stepped down amid controversy, he chose Darío Acevedo, a previously little-known historian and university professor whose views on Colombia’s recent history have made him a divisive figure. “Although the victims’ bill says what we endured was an armed conflict, this cannot be made an official truth,” Acevedo said in an interview after being tapped.

Many victims and organisations were alarmed. The Colombian Network of Places of Memory, which comprises 28 memory sites nationwide, suspended the centre’s membership last month citing an “evident contempt for victims and places of memory”. The International Coalition of Sites of Conscience, a global historical memory network, followed suit.

Acevedo has dismissed critiques as a politically-motivated smear campaign by “owners of truth”. “They have elevated the notion of armed conflict as dogma, as if its acknowledgment sheds light on all of the country’s problems,” he wrote in a recent op-ed piece, in which he accused his critics of waging a “Holy Inquisition” and “Jihad” against him and compared them to Stalin’s infamous purges or the Ministry of Truth in George Orwell’s 1984.

In February, Acevedo unveiled the centre’s public call for proposals for new investigations on the effects of the armed conflict, offering up to 100,000 dollars for research groups and designating officials at the newly-created Science Ministry as jurors. In an annex, it details which investigation lines will be considered, including crimes perpetrated by guerrillas, environmental crimes and the effects of conflict on specific population groups such as the military, businessmen, the elderly or the handicapped.

Many of these topics make sense, as they have not been the object of exhaustive investigation. As JusticeInfo showed, scientists and environmental leaders have been pushing for research on the ways in which the environment and its caretakers were affected by war. Military were not frequently sought as sources until the centre’s 2017 report on landmine victims.

More questionable is the centre’s decision to close the door on research on crimes perpetrated by paramilitary groups or state actors such as the military or police, while it still promotes an entire subtopic on crimes committed by four guerrillas, including the now disarmed FARC and the still active ELN. “Its research lines are biased and have a clear ideological background, suggesting that guerrillas were the only perpetrators,” said an open letter from the faculty of social sciences at the University of Antioquia, one of the largest in the country, inviting researchers not to submit proposals.

“Some of the greatest contributions towards understanding the armed conflict over the past decade have come from the centre, but its new director doesn’t seem willing to build on previous work or acknowledge its quality,” says Javier Revelo Rebolledo, a political scientist and professor at Rosario University who also decided against participating. “I think excluding certain actors is problematic. It’s reasonable to expect that we’ll see more research on FARC’s deeds and victims, given that they’re appearing before the transitional justice. It shouldn’t be a political decision, but rather the result of the spirit of the times,” he adds.

A space for sceptical sectors

Duque’s government has been actively seeking to work with those groups who are wary of the TRC. One month ago, Acevedo and Fedegan, the largest guild grouping cattle ranchers, announced they’re considering a joint agreement to recover the memory of victims in the Colombian countryside.

The union claims to have identified 10.000 rural entrepreneurs who over decades endured kidnapping, extortion and cattle theft by groups like FARC, a plight they say the Government has failed to acknowledge. “The Truth Commission seeks to portray businessmen as perpetrators, when they were victims (…) We want to advance in building a part of history that others have tried to deny,” said its president José Félix Lafaurie, a vocal critic of the peace deal and married to a senator from Duque’s party.

Critics fear that an investigation spearheaded by its own subjects could end up whitewashing the sector’s image, given some rancher’s double role as rural entrepreneurs heavily affected by war and funders and promoters of paramilitary groups originally born to counter guerrillas in the 1980s but eventually responsible for thousands of homicides and massacres. Lafaurie’s predecessor, Jorge Visbal, was convicted by the Supreme Court of supporting and advising the paramilitary and is now seeking admission to the transitional justice.

In the end, cattle ranchers have been both victims and perpetrators, or what legal scholar Iván Orozco has dubbed “dual responsibilities”, a complex reality that could be overlooked were its union to lead the investigative efforts.

2 colombians sing on a Truth commission event
At a rural event organized by the Truth Commission called "The campaign sings the truth". © Comision de la Verdad

Memorials caught up in politics

The tug-of-war over historical memory has also extended to the artistic sphere, as Duque has avoided lauding anything connected to the peace deal signed by his predecessor.

In December 2018, a public memorial built using the metal from the weapons laid down by FARC was unveiled in downtown Bogota. Conceived by Doris Salcedo, arguably the country's best-known artist internationally, ‘Fragments’ is a haunting reminder of everything Colombians lost over half-a-century of senseless violence.

Salcedo, known for her crack on the floor of Tate Modern’s Turbine Hall, worked with 25 survivors of sexual violence, pounding 37 tonnes of scrap metal – stemming from the melting of 8.994 rifles decommissioned by the United Nations – into 1300 plaques. She then laid them as tiles on the floor of a colonial-era house’s ruins, in what she termed a ‘counter-monument’ designed to evoke the plight of victims. Duque decided not to attend its inauguration, even though it is located one block away from the presidential palace.

Doris Salcedo on her creation
Colombian artist Doris Salcedo (photo, centre) created "Fragments", a memorial monument whose inauguration was ignored by President Iván Duque. © Comision de la Verdad

A similar scene took place in the UN’s New York headquarters, where another peace-related monument was installed in the garden facing the Hudson River on August 2019. This sculpture, a 6-metre-high golden-hued canoe facing skywards made by artist Mario Opazo from seven tonnes of bullets handed over by FARC, was to “be inaugurated in March 2020 by the Colombian government in a formal ceremony”, according to Culture Minister Carmen Inés Vásquez’s promise. Duque met UN Secretary General António Guterres last week in New York, but not a word was mentioned on the memorial.

However, Duque did lay down the first stone for the future National Historical Memory Museum in Bogota last month, a long-postponed promise that will finally come to life. What its narrative will be, and whether it incorporates the work of both the Centre and the TRC, will show if Colombians can eschew politics and find truths that reconcile instead of dividing them.

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jean-rene.berrenger@hirondelle.org (Andrés Bermúdez Liévano) Truth Commissions Thu, 19 Mar 2020 10:08:00 +0100
ICTR acquitted languish in confinement https://www.justiceinfo.net/en/tribunals/ictr/44024-ictr-acquitted-languish-in-confinement.html https://www.justiceinfo.net/en/tribunals/ictr/44024-ictr-acquitted-languish-in-confinement.html You may sometimes encounter them in the streets of Arusha, but the five acquitted persons from the International Criminal Tribunal for Rwanda, as well as four convicted persons who have served their sentences, never really stray far from the residence to which they are assigned. © Roman Boed

Five people acquitted years ago by the International Criminal Tribunal for Rwanda are still waiting to find a host country. One of them for 16 years. This situation looks unlikely to change any time soon, for them and for four convicts who have served their sentences and share their containment, in the blind spot of international criminal justice.

“I do some gardening to pass the time and stop me from going mad,” says one of the nine Rwandans living in a “secure residence” in the northern Tanzanian tourist town of Arusha. “I pass my time watching television, reading and praying,” says another one encountered at the counter of a pharmacy in the centre of town. “On Sunday I go to Mass.” “I have to walk for at least an hour a day in the town so as not to age too fast,” says a third, panting and sweating a little from his exertions around the neighbourhood. [The people interviewed asked to remain anonymous so as not to compromise procedures with potential host countries].

The nine residents of this unusual “safe house” were all tried by the ICTR, which closed its doors on December 31, 2015. Since then they are the responsibility of the international Mechanism charged with the residual functions of the UN’s international criminal tribunals. Five of them were acquitted, including former Rwandan transport minister André Ntagerura, who in February marked 16 years in this place since his judgment in 2004. The four others are people who were convicted but have served their sentences. 

The youngest of the residents is Captain Innocent Sagahutu, 58, and the oldest is Protais Zigiranyirazo, 82, brother-in-law of the late ex-president Juvénal Habyarimana. They live alongside three former ministers and four other former Rwandan army officers. None of them have travel documents, and so cannot leave Tanzania.

Memories of boarding school

“It’s certainly not a prison, but it reminds me of my secondary school days in a boarding school,” says one. In this residence guarded by the Tanzanian police, they can receive visits from friends and family. “It lifts our spirits a bit when a member of the family arrives,” says another. “But such visits are very costly for them, since many live far away.”

Since January 2019 they are subject to new regulations that carry sanctions if broken. The heaviest punishment is “definitive suspension of certain forms of assistance provided by the Mechanism to the person in question”. According to the rules, “residents must refrain from taking part in political activities aimed at destabilizing the government or which threaten the security of the State, including the host State”. They are also obliged to inform the Mechanism if travelling outside the Arusha region.

This rule was introduced after Sagahutu, one of the convicts who has served his sentence, was intercepted by the Tanzanian authorities in March 2017 in Ngara district, near the border with Burundi. The former Rwandan army officer told the Tanzanian press that he had wanted to visit relatives in Burundi. He was detained for some 20 days by Tanzanian immigration services before being brought back to the “safe house”.

Nothing in the Statutes

Sagahutu and his companions, who say they would not be safe in Rwanda, have one ambition: to join their families living in Western countries. Most of them have wives or children who now have citizenship of Western countries. But that has not helped the Mechanism to find them a host country, which it has been trying to do for years. The countries where they want to go are “reticent”, according to Mechanism spokesman Ousman Njikam, with some citing reasons of “public security”. “We have done everything we can, but the situation has not budged,” says Njikam, stressing that the Mechanism has no obligation to find them a place to go.

"It is understandable that a country might refuse to accept a convict who has served his sentence. But what does international justice mean if an acquitted man cannot be reunited with his family?" asks one of the five acquitted. The Statute of the ICTR insisted on the obligation of states to cooperate in the search, arrest and transfer of accused persons. It did not, however, make any provisions on what should happen to acquitted persons. The texts governing the Mechanism are also silent on this.

“They say they are afraid to go back to their country Rwanda, from which they had fled when they were arrested,” says Njikam. “They say they fear for their security. It’s not up to us to evaluate whether their reasons are justified or not. Nor can the Mechanism put them on a plane and deport them to Rwanda.” Given the reticence of Western countries to take them, he says the Mechanism has started to “approach African countries, especially francophone ones”, since French is the first foreign language of these former prominent persons.

Former health minister Casimir Bizimungu, who was acquitted, and former prefect of Butare Sylvain Nsabimana, who has served his sentence, were thus accepted by Ghana in October 2016. Their departure took place amid the greatest discretion, as did the negotiations that made it possible. As well as Bizimungu and Nsabimana, nine other people among the 14 ICTR acquitted have found host countries. The last one was Brigadier General Gratien Kabiligi, who died last month in France after joining his family in Belgium in October 2018.

Against fundamental rights

ICTR officials have, on several occasions, referred the situation of acquitted persons or persons released after serving their sentences to the Security Council. The Council has adopted several resolutions, but without any clause that is binding on States. During a debate in the Security Council on 17 July 2019, the President of the Mechanism, Judge Carmel Agius, once again appealed to the international community. These people "find themselves in a situation of unacceptable and untenable legal uncertainty," said the Maltese magistrate. "This situation profoundly affects the human rights of these nine people, one of whom has been in this difficult situation since being acquitted by the International Criminal Tribunal for Rwanda in 2004. A permanent solution to this problem must be found."

"The Mechanism emphasizes that it cannot solve the problem without the support and good will of Member States, who bear the ultimate responsibility for the fate of these nine individuals," he said. The judge noted that his institution "continues to suffer the administrative and financial fallout from the need to provide them with housing and daily needs”. In addition to housing and medical care, each resident receives $350 per month for food, travel in the Arusha area, clothing and communications.

While the residents say this amount does not cover their needs, Rwanda thinks it is a misuse of taxpayers' money. “They live very comfortable lives in Arusha at the expense of Member States, including Rwanda, as their cost of living and accommodation are paid through members’ assessed contributions to the Tribunal’s budget,” Rwanda’s representative to the UN Valentine Rugwabiza complained in a UN debate in July 2019. “This in itself symbolizes the tragic irony of the international justice system. Some Member States find it difficult to cooperate with the Office of the Prosecutor to bring to book those who committed the most atrocious crimes and yet find it normal that their taxpayers’ money is used to offer generous living allowances to those released many years ago after their acquittal. In some cases, living expenses and allowances have been paid by the ICTR and later the Mechanism for more than a decade. These continued payments by the Mechanism defeat every logic. Rwanda believes that they should simply be stopped”.

UN apologies?

But the acquitted people think the UN owes them a lot more. “Considering the harm done to the acquitted person, the fact that he has been unduly imprisoned for more than a decade, the fact that he was forcefully separated from his family, the fact that he can no longer take care of himself, the fact that he cannot exercise any income generating activities particularly because he has no identity document, the MICT has an obligation to take care of an acquitted person until he can be reunited with his family,” the residents wrote in a letter dated 21 April 2016 to Mechanism Registrar at the time John Hocking. “The harm done to us is so immense that some of its aspects might remain irreparable. The United Nations should therefore present excuses to the acquitted persons, do all it can to get them rehabilitated and reintegrated into society without forgetting to pay reparation”.

"Now they're exaggerating. The freedom they enjoy today, even if it is not total, is priceless,” says a Mechanism official who prefers to remain anonymous. “I would advise them to be patient, to be less demanding and not to make too much noise."

"Indeed, we have even been forbidden – although they didn’t dare write it in the rules - to talk about our situation to the media, on the pretext that it would complicate the ongoing negotiations to find host countries for us," says one of the residents.

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jean-rene.berrenger@hirondelle.org (Ephrem Rugiririza) ICTR Tue, 17 Mar 2020 09:07:15 +0100
Dominic Ongwen: the ICC’s Poster and Problem Child https://www.justiceinfo.net/en/justiceinfo-comment-and-debate/opinion/44014-dominic-ongwen-icc-poster-and-problem-child.html https://www.justiceinfo.net/en/justiceinfo-comment-and-debate/opinion/44014-dominic-ongwen-icc-poster-and-problem-child.html Ugandan Dominic Ongwen, a former child soldier turned commander of the Lord's Resistance Army, pictured in the final stages of his trial before the International Criminal Court, which seemingly took its toll on his physical and mental health. © ICC/CPI

Last week, the International Criminal Court (ICC) heard the closing arguments in the trial of Ugandan Dominic Ongwen, five years after his first appearance. In no other ICC trial have case narratives been so opposite, morally complex and riddled with paradoxes, say historian Thijs Bouwknegt and criminologist Barbora Holá, who describe how the Ongwen saga seems “both the ICC’s success story and antithesis of what it stands for and fights against”.

From 10 to 12 March, about two dozen prosecutors, victim’s lawyers and defence counsels gathered in The Hague to present their closing arguments to three judges on how they ought to perceive Dominic Ongwen, a former Lord’s Resistance Army (LRA) child soldier who became one of its commanders, and whether or not to convict and punish him for a litany of atrocities he perpetrated after his eighteenth birthday. On one hand, Ongwen was portrayed as a monstrous, brutal and cruel serial-paedophile, a mass murderer and a fearless terrorist, who was powerful, proud and happily “gratifying his own desires” in the bush. On the other hand, he was represented as a youth who was victimised, orphaned, imprisoned, initiated, indoctrinated and incorporated into the LRA. Possessed by the spirits called upon by LRA headman Joseph Kony, he had become a madman with suicidal tendencies.

“I was in school. It was noon. A white van pulled up and took me and three friends. They tied my hands and legs and threw me in the truck. When we arrived at the camp, our training started with a beating. We were told if we tried to escape, we would be killed. We were forced to carry heavy supplies, and raid homes to get more. We were forced to steal. To kill. […] I was a boy of 12, now I am grown. I want to move on, but it’s like I am trapped. I cannot go back to school, cannot get a decent job, because no one trusts me. I want to start my life again.”

This tragic story told by an anonymous ‘African’ kid is a contiguous reminder of Ongwen’s first appearance at the ICC in early 2015. In a soft, uncomfortable voice – through translators - Ongwen told Bulgarian Judge Ekaterina Trendafilova that he was “taken to the bush when [he] was 14 years old” and was now “informed he was brought to the ICC because of crimes”. While both stories seem analogous, they are not. The first is an affective soundbite over an animated video produced by the ICC’s outreach office about the sad plight of former child soldiers. To illustrate the life-long, traumatic and lingering impact of being kidnapped in the bush only to be raised as a ferocious fighter, we see a caged bird; it is trapped for life but it wants to be free again. Towards the film’s end the viewer anticipates a moment of hope, liberation, salvation – some twist that is comforting. But there is no happy end. Rather a sense of astonishment, confusion and derailment is what follows when the story awkwardly transits to a young, white lady who sits at the ICC Public Gallery. Gazing through armoured glass into an ICC courtroom she sees the cage looming behind three magistrates. It is supposed to be a clear warning that child soldier enlisters, conscripters and users will be gaoled by international justice. But how does a former child soldier like Ongwen, a victim of such child abductors who later caused mass-suffering as an adult, fit the script?

Charges against the LRA

Let’s first try to grasp the charges. The 70 counts of war crimes and crimes against humanity which Ongwen allegedly committed through seven modes of liability are not just a world-record in international justice, they are also no child’s play. Forty-nine charges relate to attacks against civilians, murder, attempted murder, torture, cruel treatment, inhumane acts, enslavement, pillaging, outrages upon personal dignity, persecution and destruction of property during attacks on Internally Displaced Camps in Pajule, Odek, Lukodi and Abok between late 2003 and mid- 2004. Eighteen charges pertain to forced marriage, torture, rape, sexual slavery, forced pregnancy and outrages upon personal dignity perpetrated by himself against seven of his “wives” and by folks – including child soldiers - under his command. At the end of the list feature two charges of conscription of child soldiers. Although Ongwen was tried for atrocity crimes of which he was once a victim, his trial was not just about him; it was also about the LRA. It is the one thing Ongwen understood very well. “I did understand the document containing the charges but not the charges,” he told the judges on the first trial day in December 2016, “because the charges I do understand as being brought against LRA but not me. The LRA is Joseph Kony, who is the leader of the LRA.” And indeed, from the beginning and throughout their case the prosecution clearly said that “for more than a quarter of a century, the LRA under Joseph Kony and his high command, that includes Ongwen, have terrorised the people of Northern Uganda and neighbouring countries” and that the time for a grand judicial reckoning with the infamous group had finally come.

With visible unease, the prosecutor told the Chamber that the principle of ‘once a victim, always a victim’ does not apply in Ongwen case

Benjamin Gumpert, who leads Ongwen’s prosecution agreed Ongwen had indeed been a victim of abduction; “it is a tragedy”, Gumpert admitted. But then he went to great lengths to paint a picture of Ongwen as an adult who became a willing, conscious and intentional tormenter. In Gumpert’s take on the story, Ongwen actually chose to stay in the LRA, presuming he had ample opportunities to escape. After three years of litigation, Gumpert – who previously led the withdrawn prosecution of Kenya’s President Uhuru Kenyatta and is now reportedly running for the Chief Prosecutor’s position – has to win a case while also maintaining a more general but contradictory stance towards child soldiers. With visible and at times audible unease, he told the chamber that the principle of ‘once a victim, always a victim’ does not apply in this case. You cannot have it both ways, he repeats, arguing Ongwen was a vigorous, effective, enthusiastic commander, who was described by prosecution witnesses as “anything other than happy and sociable”. Gumpert’s depiction of the former child soldier in the dock hardly matched with how three legal representatives of victims talked about the life-long consequences suffered by child soldiers. Francisco Cox told the chamber “our victims” – 4,065 in total, including many child soldiers – were scarred for life; they were stigmatised, discriminated against, dropped out of school, divorced and are at times still “infected by evil spirits, or cen” after they had returned home from the bush. Citing their expert witnesses (Michael Gibbs Wessells, Seggane Musisi and Daryn Scott Reicherter), it was as if the lawyers were describing the man they were actually ‘co-accusing’. But the contrary was also true. Paolina Massidda, principal counsel of the Office of public counsel for victims, said that Ongwen is that one and only exception, that when he obtained the age of reason he knew what unlawful, brutal harm he was proudly causing and that he was even doing so “with the intent to carry out grave violations of international law”. Ongwen’s lawyer, Krispus Ayena Odongo, in rebuttal, said the only laws Ongwen knew were Kony’s Ten Commandments.

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Artificial legal boundaries

As much as child soldiers are imperfect victims, they also are tragic perpetrators, explains Mark A. Drumbl, the author of "Victims who victimise". In all the complexities of their social realities and experiences, child soldiers escape easy qualifications. They do not neatly fit the legal binaries of childhood or adulthood, guilt or innocence, victim or perpetrator, even more so when former child soldiers continue or even aggravate their crimes into adulthood, like Ongwen. It is striking that in international criminal law the transition from being ‘not responsible’ – a compromised child with little capacity to act – to potentially the ‘most responsible’ – an adult with full choice and capacity to act – for the most inhumane acts is so abrupt. From one day to the next, an individual can be transformed from an indisputable victim into a perpetrator. Thus, the boundaries between whom international criminal justice wants to protect the most from international crimes and whom it seeks to punish the most is abrupt, artificial and adversarial. Ongwen is both the ‘poster child’ and the ‘problem child’ of this legal and moral conundrum.

Perhaps the largest paradox in the Ongwen case is that both prosecutors and victims’ lawyers have portrayed Ongwen as an uncurable psychopath but at the same time deny he suffered from mental illness, trauma or post-traumatic stress disorder when he was causing atrocity – a diagnosis they otherwise effortlessly attach to the “30,000 abducted children in Uganda between 1986 and 2007”. As a matter of fact, Ongwen’s being in the dock diametrically clashes with the ICC’s universal message that children are, by default, the ultimate, the most vulnerable and most affected victims of atrocity crimes. At the end of the Thomas Lubanga trial in August 2011, which was all about child soldiers, Fatou Bensouda took on the role of maternal prosecutor, telling the trial chamber that “children need mothers, not commanders”. On 12 February 2019, she reiterated that “children with otherwise bright futures are lost to the violence, subjected to unimaginable atrocities, wrenched from the safety and security of their families, and deprived of the opportunity to grow and develop in a nurturing environment”. However, only twelve days later, Bensouda signed off the closing brief in her criminal pursuit of Ongwen, taking the most rigid view that “during the course of trial, he has sought to hide behind excuses involving mental illness and duress, which have been exposed as false.” Seemingly, the Ongwen saga is both the ICC’s success story and antithesis of what it stands for and fights against.

According to the defence, in the absence of Kony, the prosecution conducted a “proxy-prosecution” victimising Ongwen again and sending the overall message that “children will be prosecuted for the crimes of their captors.”

Obviously, this conflict, conundrum and confusion has been picked up, instrumentalised and exploited by Ongwen’s defence. The defence’s story was clear: Ongwen, they say, was an enslaved prisoner of the LRA until his escape in 2015; he was brutalised and ordered – by Kony and his spirits – to brutalise others. Lead counsel Odongo said Ongwen became a madman, who had no mind of his own and whose sole motive had become “dying”. Ongwen perceived death, Odongo said, as the ultimate escape from the LRA. The defence then turned against the prosecution, whose story is laughable, Odongo proclaimed, saying they portrayed Ongwen “arising from hell a saint and should be judged as a reasonable man”. Looking at Queen’s Counsel Gumpert, Odongo added that an English law professor once told him that the definition of a reasonable person “is a man on the streets of London” and not a child in the bush. Gumpert, sitting eight metres opposite, shrugged and smiled. Furthermore, the undertone of the defence’s allegation was that the prosecution, in the absence of Kony, conducted a “proxy-prosecution” through Ongwen, thus making him a scapegoat, victimising him again and sending the overall message that “children will be prosecuted for the crimes of their captors”. Instead of a vicious perpetrator, the defence concluded on 12 March that Ongwen is a mentally disabled child and a victim who actually ought to be represented by the victim’s lawyers and remedied by the ICC.

Ongwen himself remained silent through the closing arguments and all 231 hearings before it. Most of the time, he remained a stoic, introvert defendant, sitting straight up in his chair, hands folded, staring into the screens before him, occasionally scribbling in his red or green notebook, drinking water from a plastic cup. His lawyers refer to him as “that boy”. It is not a secret: in prison Ongwen has reportedly threatened to commit suicide, went on hunger strike and was forcibly removed from his cell at least once. During trial, he once flared up and was restrained by a security guard. The incident happened when a prosecution expert, forensic psychiatrist Gillian Clare Mezey, was giving her opinion about Ongwen’s mental state. Undoubtedly, Ongwen’s detention by the ICC and his trial have taken its toll. On arrival, Ongwen was a seemingly fit, muscled and slim young man; his suit was too big. His body, however, is also a canvas of scars. His leg was shattered and he limps. In the beginning, he was a quiet young man and enjoyed the easy-going prison conditions, his new company – an unusual group of Ivoirian, Congolese, Rwandan and Malian atrocity crime suspects – and education, including piano-lessons. Years and reportedly many antidepressants later, observers say he has put on a lot of weight, and his jacket buttons seems about to burst.

Whom to believe?

Defence lawyer Beth Lyons summed up the challenge facing the three judges, who are now deliberating: it is about answering the question “whom do you believe”. Witnesses, prosecution or defence experts or the court-appointed expert? Court-appointed psychiatrist Joop de Jong and defence experts Emilio Ovuga and Dickens Akena examined Ongwen first hand, each finding that Ongwen at least suffered from some level of major depressive disorder, post-traumatic stress disorder and other specified dissociative disorders. For the defence, Ongwen, who is now in his 40s, has a child-like, tormented state of mind and suffers from mental disability. While the prosecution’s experts Catherine Abbo, Mezey and Roland Weierstall-Pust would agree to some extent, the prosecution would not have it that Ongwen suffered from any mental deficiency when he was in the bush, carrying out the alleged crimes. And before Ongwen’s eyes, during the trial, the parties and even the experts themselves went for blood, with Gumpert calling Ovuga’s expert testimony “nonsense” and Weierstall-Pust – who had never met Ongwen - accusing the defence experts of delivering “sloppy” work.

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Victim-perpetrators, what’s the ICC stand?

What the Ongwen trial shows is that international criminal justice’s reckoning with child soldiers has been problematic; while it proclaims to act in their best interests, its operational outcomes are less than satisfactory. As witnesses, for example, former child soldiers have often proved to be capricious, uncontrollable and susceptible to manipulation – sometimes recanting stories. Our research shows that in over 71 percent of instances involving (ex-)child soldier witnesses at international criminal tribunals and the ICC, judges identified fundamental problems with their testimonies. While questions as to their reliability, credibility, trauma and age began to undermine the very cases initiated to protect them, child soldiers’ legal victimhood was tested and contested too. During sentencing Lubanga, however, the harm inflicted upon a child soldier, by default, was presented and invoked by judges as very serious, long-lasting and irreparable. The child remains a victim for life, with his or her bygone experience and memories of atrocity continuing to inflict pain. In the Ongwen sentencing, if they convict him, judges will have the task of formulating the ICC’s stance towards victim-perpetrators.

The legal and moral threshold that marks the transition from an angel into a devil, and from the future of humanity to someone most responsible for the most heinous crimes, remains ambiguous.

The international legal and moral threshold that marks the transition from an angel to a devil remains ambiguous. Is that transitory moment just an 18th birthday? Unwillingly, the ICC has turned this theoretical puzzle into a real-time laboratory, attracting a wide range of commentary and reflection on responsibility, culpability or justiciability of individuals like Ongwen. On the one hand, it could be argued that any recognition of kidnapping or prior recruitment as a defence cannot overcome the gravity of the crimes such defendants allegedly perpetrated as adults. On the other hand, a case could be made to immunise ex-child soldier defendants from prosecution. A middle-ground position could be that recruitment as a child and its effects on an individual’s level of maturity and development is a mitigating factor when sentencing a convicted perpetrator.

Reintegrate Ongwen, says defence

For the prosecution, having suffered victimization in the past is not a justification nor an excuse to victimise others. Rather they argued, the ICC will not decide Ongwen’s goodness or badness, nor whether he deserves sympathy, but whether he is guilty of the serious crimes he committed as an adult. But Gumpert, while asking the chamber to convict Ongwen on all charges, also paraphrased his chief’s statement at the beginning of the trial that “we are not here to deny that Mr. Ongwen was a victim in his youth”, adding that “victimhood is to be considered during sentencing”. Curiously, all three legal representatives for victims remained silent on the issue – maybe saving it for sentencing hearings in case Ongwen is convicted. On their part, the defence asked the chamber to acquit “that child” in the dock, and that in the case of conviction he not be made to serve sentence “any longer”. Ongwen has been imprisoned by the LRA and in the ICC’s detention centre now for more than 30 years, they said. He wants to live again, they urged – like the boy in the ICC’s video – and in order to do so requested the chamber to send him “back to Acholiland so that traditional mechanisms of Mato Oput can be implemented” to reintegrate him into society. “The principle of complementarity empowers you,” Odongo told judges Bertram Schmitt, Péter Kovács and Raul Cano Pangalangan, “to think outside the box.”

Barbora HolaBARBORA HOLA

Dr. Barbora Hola is Senior Researcher at the Netherlands Institute for the Study of Crime and Law Enforcement (NSCR) and Associate Professor at Vrije Universiteit Amsterdam. She is co-director of the Center for International Criminal Justice and co-chair of the European Society of Criminology Group on Atrocity Crimes and Transitional Justice. A volume on “Perpetrators of International Crimes”, she co-edited, was just published by Oxford University Press.


Thijs BouwknegtTHIJS BOUWKNEGT

Thijs Bouwknegt is a historian and former journalist. He is a Researcher at the NIOD Institute for War, Holocaust and Genocide Studies in Amsterdam, The Netherlands, and Assistant Professor at the universities of Amsterdam and Leiden. His research focuses on the history of transitional justice, particularly in Africa. Since 2006, he attended and covered all ICC (pre-) trials in The Hague, including the Gbagbo and Blé Goudé case.

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jean-rene.berrenger@hirondelle.org (Justiceinfo.net) Opinion Mon, 16 Mar 2020 11:55:16 +0100
Rwanda tribunal residual body fails to catch fugitives https://www.justiceinfo.net/en/tribunals/ictr/44008-rwanda-tribunal-residual-body-fails-to-catch-fugitives.html https://www.justiceinfo.net/en/tribunals/ictr/44008-rwanda-tribunal-residual-body-fails-to-catch-fugitives.html Since 2016, a brand new structure has succeeded the International Criminal Tribunal for Rwanda: the Arusha Branch of the

The Mechanism charged with residual tasks of the International Criminal Tribunal for Rwanda (ICTR) lies outside the Tanzanian town of Arusha, and seemingly outside of time. With its annual budget of 40 million dollars and 200 employees, it is charged with hunting the last eight fugitives accused of participating in the 1994 genocide. But the prosecutor says it is not getting much cooperation from States.

With its safaris and tanzanite, Arusha is Tanzania’s biggest tourist hub and the biggest centre for traders in tanzanite, a new precious stone found only in that east African county. For more than four years, however, the small town has been deprived of the presence of the International Criminal Tribunal for Rwanda (ICTR), a huge judicial machine that closed in December 2015 after some 20 years.

Since January 2016, all the residual functions of the ICTR are the responsibility of a much more modest structure called the International Residual Mechanism for Criminal Tribunals. Created by the UN in December 2010, this “Mechanism”, as it is known for short, was gradually put in place after its Arusha branch was opened in July 2012. There is another branch in The Hague charged with handling the residual tasks of the International Criminal Tribunal for the former Yugoslavia (ICTY).

Four years and $8.7 million dollars

Situated some 20 kilometres from the former ICTR, on a vast plain visited by runaway wildlife from Manyara National Park, the Arusha Mechanism consists of three buildings. They took four years to build and cost about US$8.7 million. While the ICTR was housed throughout its existence in rented offices at the Arusha International Conference Centre, the Mechanism paradoxically has purpose built UN-owned premises. The first building houses a courtroom with state-of-the-art equipment, the second is dedicated to the archives and the third is the administrative block.

Near Arusha, Tanzania, the buildings of the International Criminal Tribunal for Rwanda's residual mechanism
Located twenty kilometres from the centre of Arusha, in the heart of a plain haunted by wild animals, the Mecanism consists of three buildings, which took four years to build and cost $8.7 million. © IRMCT

200 employees and three “big fish”

The main task of the Arusha Mechanism, which currently has 200 employees of 65 nationalities and an annual budget of some $40 million, is to complete the ICTR's judicial mandate by tracking down its eight fugitives and trying three of them considered "big fish". "The arrest of the fugitives remains our main concern," Serge Brammertz, the prosecutor of the Mechanism, told Justice Info. The Belgian magistrate and his team are looking primarily for businessman Félicien Kabuga, often presented as the financier of the 1994 genocide in Rwanda; former Minister of Defence Augustin Bizimana; and Major Protais Mpiranya, who commanded the presidential guard of Juvénal Habyarimana. If arrested, these three "big fish” would be tried by the Mechanism, while the other five fugitives would be handed over to the Rwandan judicial authorities.

Hassan Jallow, Brammertz's Gambian predecessor, often claimed that Kabuga was hiding in Kenya, a six-hour drive from the Mechanism. But Brammertz thinks the octogenarian has muddied the waters. He says his team is following a whole series of leads and that today “Kenya isn't our best lead". Kabuga, who started as a small trader and became the richest man in Rwanda, is accused of ordering the machetes used to kill Tutsis in 1994.

And where might Bizimana and Mpiranya be? Some say that the three "big fish" are no longer alive but Brammertz says there is no proof of this “at the moment". He said his office is also "actively involved" in the search for the other five accused whose files have been transferred to Rwanda: a lieutenant-colonel, two former mayors, an ex-police officer and a former restaurateur. "The majority of our fugitives are living under false identities, some as many as 20 different identities. Some of them manage to obtain passports illegally, allowing them to cross borders and escape," the prosecutor added.

Rwandan genocide fugitives wanted by the International Criminal Tribunal for Rwanda mechanism
"The arrest of the fugitives remains our main concern," says Serge Brammertz, the prosecutor of the Mechanism. © IRMCT

No cooperation from South Africa?

Addressing the UN Security Council on December 11, 2019, Brammertz accused South Africa for the second time of “long-standing failure to execute a Mechanism Arrest Warrant". "After assurances in July that cooperation would be forthcoming, I was cautiously optimistic that the arrest would take place expeditiously," said Brammertz, who did not reveal the identity of the accused person. "My Office was greatly surprised, then, to receive in September a formal response from South Africa informing us, for the first time after more than a year of discussions, that it could not cooperate because it lacked the necessary domestic legislation."

South Africa's representative to the United Nations, Mfundiso Mabhongo, replied that his country strictly respects its obligations and the delay should in no way be seen as a rejection of its obligations. The diplomat said the international arrest warrant had already been endorsed, and that his country would continue to cooperate fully with the prosecutor to arrest the wanted fugitive. Three months have passed since then. "We are still in contact with South Africa," says the prosecutor, without going into details.

Chill in relations between Pretoria and Kigali

The ICTR in its day was able to secure the arrest on South African territory of former Rwandan mayor Ignace Bagilishema and businessman Gaspard Kanyarukiga in 1999 and 2004 respectively. So what’s the problem now? "The current chill in relations between South Africa and Rwanda is one possible reason. Don't forget that at the time of the Bagilishema and Kanyarukiga arrests, it was the honeymoon between Kigali and Pretoria," says another Mechanism official who did not wish to be named.

Brammertz reports difficulties obtaining the cooperation of States in a timely manner. "We have sent requests for mutual legal assistance to several countries in the region, but they are taking a long time to respond, and speed is very important," he says. "Important and urgent requests have remained unanswered for more than a year, even though we have provided useful information, such as telephone numbers, places of residence, identity documents."

A failure, according to Rwanda

During a UN debate in New York in July 2019, Rwanda's representative to the United Nations Valentine Rugwabiza castigated the Mechanism’s "failure to deliver on its core mission to complete the unfinished work of the ICTR". In the absence of arrests, only one review trial - that of former Planning Minister Augustin Ngirabatware - has taken place in the Mechanism’s new, state-of-the-art courtroom. The judges sat from 16 to 24 September 2019, only to dismiss Ngirabatware's case three days later. The only current detainee at the UN detention centre in Arusha, Kabuga's son-in-law, is still awaiting trial in contempt of court proceedings for alleged witness tampering.

Fortunately, the Mechanism also has other tasks, including supervising the sentences being served outside Tanzania by ICTR convicts. Eighteen are currently imprisoned in Benin, seven in Mali and five in Senegal. Any of them can apply to the president of the Mechanism for a pardon, commutation of sentence or early release. Its first president, the American Theodor Meron, attracted the wrath of the Rwandan authorities by granting early release, according to a common judicial practice, to convicts who had served two-thirds of their sentences. Accusing Meron of rubbing salt in the wounds of survivors, Kigali argued that released convicts were engaged in genocide denial, an argument supported by Prosecutor Brammertz and some Security Council member countries. Rwanda's concerns appear to have found a sympathetic ear with the new Mechanism president, Maltese Judge Carmel Agius, who took office in January 2019.  "In relation to enforcement, I also look forward to continuing to improve the quality and transparency of the Mechanism's approach to early release and related matters,” he told the UN Security Council in December 2019. “An updated Practice Direction will be forthcoming once the usual consultation process is complete".

In the meantime, requests for release are piling up on the table of the new Mechanism president, including that of Colonel Théoneste Bagosora, the most notorious convict at the ICTR.

MILLIONS OF PAGES OF ARCHIVES

The Mechanism’s Archives and Records Management Section, which currently has 16 staff, occupies one of the three buildings of the Arusha Branch. The archives consist of books, maps, photographs, audio and video recordings, physical objects, etc., which are all stored there. In all, there are some 9 million pages, 27,500 audio-visual cassettes, 700 maps and posters. This represents, we are told, about two linear kilometres of paper files and 1.2 petabytes of digital files.

These ICTR archives include information on the investigations conducted by the Tribunal, indictments and judicial proceedings, the detention of accused persons, witness protection and the enforcement of sentences. There are also files relating to the Tribunal's relations with States and other organizations, and the administration of the Tribunal as a United Nations agency.

The archives can be consulted on site or online. For audio-visual recordings, which are not yet online, a request should be addressed to the Mechanism’s Archives and Records Management Section, specifying the case number and dates of hearings. The Section cannot disclose confidential information, says its head, Tom Adami.

A total of 1,603 people, mostly Tanzanians, have visited the archives section since 2018. Of these, only four were researchers. "It is a source of pride that the memory of all these years of ICTR work is preserved on our Tanzanian territory,” says Nehemiah Mdosi, a law student who visited in 2019. “The only negative point is that the location is too far from the city centre and is not accessible by public transport".

To attract the public, the Mechanism organizes exhibitions, some online, based on archive material. For example, in October 2017, a virtual exhibition was organized on the plight of children during the Balkan wars of the 1990s and the 1994 genocide in Rwanda. It included a selection of photographs, audio and video recordings, depositions and other official documents that have been admitted as evidence before the ICTY and ICTR.

Rwanda had long argued that it was the legitimate custodian of the ICTR archives. "They are part of our history," Kigali argued, saying that the archives could be kept on Rwandan territory while still remaining the property of the United Nations. But it lost the argument with the UN Security Council resolution that plumped for Arusha.
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jean-rene.berrenger@hirondelle.org (Ephrem Rugiririza) ICTR Fri, 13 Mar 2020 11:33:04 +0100
Gambia: When Jammeh was turning crocodile https://www.justiceinfo.net/en/truth-commissions/44002-gambia-when-jammeh-was-turning-crocodile.html https://www.justiceinfo.net/en/truth-commissions/44002-gambia-when-jammeh-was-turning-crocodile.html Smiling and generous outside, as soon as he returned to the State House Yahya Jammeh

Ebou Jarju, a steward, and Ensa Keita, a gravel and sand provider, are civilians who once got to work for former president Yahya Jammeh, directly or close enough. And they were not the only ones to have paid a heavy price for it, they told the Gambia’s Truth, Reconciliation and Reparations Commission.

Gambia’s former president Yahya Jammeh had some of the characteristics of a ‘benevolent dictator’. In his 22-year rule, he would tour the country at least once a year, giving out hundreds of thousands of dalasis, the national currency, to his supporters.

Ebou Jarju testifies against Yahya Jammeh before the TRRC in Gambia.
Ebou Jarju testifies before the TRRC. © Mustapha K. Darboe

But the people closer to him did not see that generous side of the dictator, Jammeh’s former steward Ebou Jarju told the Truth, Reconciliation and Reparations Commission (TRRC) on February 27. The 54-year old is a former hotel worker. In March 2001 he took a job at State House, Gambia’s seat of power. “I thought Jammeh was a good person but when I started to work at State House, it was as if being truthful meant a whole different thing to him,” Jarju said. “When Jammeh would go out and give out money to people, he would be very happy and when he comes back to State House, it is totally different. He would frown and start insulting people. He would insult people’s mothers. He frequently called people bastards.”

Jarju, a member of Jammeh’s Jola tribe, hails from Kombo Darsilami, a village about 1,5 hour drive from Banjul. As a steward, he was responsible for the food and water of the president. He would serve food at State House, state banquets and other gatherings, serving the President alone or with guests. Also among Jarju’s responsibilities was to make sure that food was cooked on time and all ingredients were intact.

Three years in prison without charge

In March 2008, Jarju said the behavior of the former President towards him began to change for the worst. Jarju’s phone was seized by members of the State Guard who were authorized to print out the list of people he called. Jammeh wanted to know who he talked to. The phone was never given back to him.

A few weeks later, Jammeh issued an instruction that “this idiot”, referring to Jarju, should vacate the residence given to him when he became a steward at State House. The flat he occupied at the time was at the Marina Parade, the central district of Banjul where the State House is located.  

After Jarju had left to his native village Darsilami, a vehicle being driven by one Sergeant Sambou Barrow arrived at his home. Jarju learned that he was now under arrest. “I was detained for 9 months at the Banjul police station without charge,” he told the TRRC.

“They said to me: we were told that you attempted to poison the President. I laughed. One of them told me that the accusation was serious and I was laughing. I told them I laughed because this could not have happened. Anything the President ate, I tasted it first,” said Jarju. “It was only after 3 weeks that my people knew I was in Banjul and they brought me some clothes.”

The investigations, according to Jarju, exonerated him. But the truth did not matter. They moved him to the country’s notorious Mile 2 Prison, in the outskirt of Banjul, where he would spend another 3 years without charge. Both his parents died while he was in detention.

Bad temper

Jarju’s appearance before the Gambia’s TRRC relates to a new series of public hearings on the abuse of civil and public servants. Since the TRRC began its public hearings more than a year ago, several witnesses have spoken of the bad treatment State House workers suffered in Jammeh’s hands. The orderlies, protocol officers and stewards particularly paid a high price for their proximity to Jammeh. Jammeh’s longest serving chief protocol officer, Alagie Ousman Ceesay, and Yusupha Sanneh, his former orderly, testified about such bad treatment of the State House staff.

Jammeh, according to Jarju, had very odd eating and sleeping habits. He would at times have his lunch at 6 p.m. and his dinner at 3 or 4 a.m. “Sometimes, you have to sit and wait until 1 or 2 a.m. when he would bring geese and say: slaughter them. If you slaughter geese at 2 a.m., when would you finish preparing them?” asked Jarju. Jarju thinks the president didn’t sleep because “he has hurt too many people and he is afraid they will revenge.”

Because of the dictator’s unusual behavior, stewards and orderlies would sleep while on duty. Jammeh would come with a mosquito repellant and spray it on their faces, said Jarju. “Sometimes, he would pour very cold water on them,” he added.

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The closer the riskier

Jarju said their woes were exacerbated by Jammeh’s erratic behavior and paranoia. “I knew the worst they could do was to kill me. I was used to people being arrested. People were arrested all the times from State House,” he claimed. “It was scary to work at the State House. You would see people taken to National Intelligence Agency and you would not even know why.” Jarju was released in 2012, after which he went into exile in Senegal to return only in 2017 after Jammeh had fled the Gambia.

So far, evidence before the TRRC has shown no one endured the wrath of ex-dictator more than those closed to him. Haruna Jammeh and Merci Jammeh, his cousins, were murdered by him, according to Omar Jallow, one of the former ruler’s hitmen who testified before the Commission last year. Evidence before the Commission also indicated that his former spy chief, Daba Marenah, and a number of soldiers close to him have disappeared on Jammeh’s orders.

Work, no pay

Ensa Keita testifies against Yahya Jammeh before the TRRC in Gambia.
Ensa Keita testifies before the TRRC. © Mustapha K. Darboe

Another witness before the TRRC, Ensa Keita was a laborer who supplied gravel and sand for construction works. In 2005, he took a job to supply about 2,600 U.S. dollars’ worth of gravel and sand for Jammeh’s residence in Kanilai, the president’s home village, about 2 hours drive from Banjul. 

The go-between for Keita’s contract with the presidency was Aziz Tamba. Work was done but Tamba would not pay Keita. Keita launched a stubborn pursuit of his payment until 2006 when both Tamba and president Jammeh had enough of it. “The big man [Yahya Jammeh] said he would not pay,” Tamba told Keita in one of their meetings in Kanilai. “I told him that is not true”, said Keita. Keita insisted that his money must be paid. He would even complain to the village head and the imam. Then he received a call. “Come to Kanilai. The big man has given me your money,” said Tamba. At 10 a.m the following day, Keita was in Kanilai. Upon arrival, he was directly taken to a holding cell and tortured. There, he would endure illegal detention without charge for nearly two months. He lost several of his front teeth and one testicle, he told the Commission.

Barbaric acts

Junglers operated on orders of Jammeh. One of their bases was in Kanilai. According to Keita, the holding cell he was kept in was in a building opposite to the president’s residence. “When I asked the soldiers, I was told I was locked on the orders of one Musa Jammeh,” said Keita. Musa Jammeh – who died in 2007 – was a senior Jungler who nicknamed himself “Maliyamungu” after the notorious right-hand man of the former Ugandan dictator Idi Amin Dada. At the time he was the operational commander of the Junglers.

The day after Keita was arrested, Musa came to see him. He greeted him with a slap. “I should say that I am a rebel. He said if I did not agree, they will feed my flesh to the crocodiles,” said Keita. Former Gambian leader had a crocodile pool at his residence in Kanilai. Despite daily torture and starvation, Keita said he was lucky. A few days into his detention, the soldiers brought one man who identified himself as Kajally Jammeh. According to Keita, Sanna Manjang, another feared commander of the Junglers, told the new prisoner: “I am going to kill you, cut your throat and feed your body to the crocodiles.” One night, said Keita, Kajally Jammeh was taken out and slaughtered in front on his cell.

A crocodile in Yahya Jammeh's private pond
A crocodile pond belonging to the former Gambian leader Yahya Jammeh. © Romain Chanson / AFP

Forced disappearances to be investigated

Keita’s testimony was so shockingly graphic that the TRRC lead counsel Essa Faal advised that children should be prevented from watching it. Manjang reportedly put the victim’s head into a polythene bag and took it to the ex-President’s residence. Helping Manjang in this barbaric act was Sulayman Sambou, Keita testified. Sambou was a member of the Junglers who has been named in several hits. Both of them, Keita said, wore a military uniform. According to Keita, another prisoner, a woman by the name of Yama Colley, would also be killed there on that day, strangled to death before his own eyes.

For years, Gambians have speculated on the involvement of the ex-president in human sacrifices. Keita said the two killings which occurred near his prison cell were done in sacrificial manner and their heads were taken away. He also name six others who were brought to his prison cell before being disappeared. The Commission is yet to established the profile of the alleged disappeared victims. This is also the first time the story of Kajally Jammeh and Yama Colley were mentioned before the Commission.

After one month and 21 days, Keita was escorted our without further harm, although he claimed that the guard accompanying him out informed him that Musa Jammeh had instructed for Keita to be killed. After his testimony before the TRRC, people have started to raise money for him, like they did for a number of other victims who appeared before the Commission. Eventually, Keita might get his money back…

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jean-rene.berrenger@hirondelle.org (Mustapha K. Darboe) Truth Commissions Thu, 12 Mar 2020 10:27:54 +0100
MH17: Why the Dutch ruled out war crimes charges https://www.justiceinfo.net/en/tribunals/national-tribunals/43990-mh17-why-the-dutch-ruled-out-war-crimes-charges.html https://www.justiceinfo.net/en/tribunals/national-tribunals/43990-mh17-why-the-dutch-ruled-out-war-crimes-charges.html Chief prosecutor of The Netherlands Fred Westerbeke, at a press conference of the Joint Investigation Team, on June 2019, next to the pictures of the four men accused in the MH17 trial that just opened. © John Thys / AFP

Three Russians and one Ukrainian are prosecuted by a Dutch court for the shooting down of a civilian aircraft in July 2014, killing all 298 people on board. On the opening of the trial on March 9, the prosecution revealed why it charged the suspects with murder and the criminal offence of shooting down an airplane.

“All four of the defendants have been summoned on the suspicion of first: to cause flight MH17 to crash resulting in the deaths of all occupants (…) and second the murder of 298 occupants of MH17,” prosecutor Dedy Woei-a-Tsoi told the court at the opening of the trial, on March 9. “In the opinion of the public prosecutor (the suspects) organized that around 17 July 2014 a deadly weapon - a Buk Telar - was transported to east Ukraine (and) brought to a location from where a missile was launched and that missile hit flight MH17”, she said.

The Dutch trial against the four men started in their absence. The accused are three Russians – Sergey Dubinskiy, Oleg Pulatov and Igor Girkin – and one Ukrainian – Leonid Kharchenko –, who had senior positions in the pro-Russian militias in Eastern Ukraine in 2014 [read our box]. They are charged as co-perpetrators for providing an anti-aircraft missile system to the militia who allegedly fired at the civilian aircraft.

Avoid unnecessary debates

Over five years after the crash, prosecutors thus revealed a part of their strategy by making it clear they were primarily charging the suspects with murder and intentionally shooting down an aircraft, both punishable by a maximum of life in prison under the Dutch law. One of the key questions about the prosecution’s strategy being whether the suspects would also be charged with war crime.

“By charging premeditated murder they seem to be saying this is not a case of international humanitarian law,” assistant professor of international criminal law at Amsterdam’s Free University Marieke de Hoon told journalists after. This would avoid, she added, the whole trial focusing on combatants’ immunities and whether the direct perpetrators who allegedly shot down the plane had taken sufficient measures to identify whether they had a military or civilian target.

However, on Monday prosecutor Ward Ferdinandusse wanted to stress that prosecutors rejected the idea that any combatant immunity would apply in this case, stressing “it only applies to regular military personnel under the supervision of a state in a group that respects international humanitarian law and rules of warfare”. “War is not a license for violence by all, against everybody,” he said. “Our provisional conclusion is that the suspects in July 2014 were not entitled to claim combatant immunity and had no right or excuse to resort to violence in eastern Ukraine,” Ferdinandusse added.

In 2018, the international Joint Investigation Team which has looked into the crash said their probe showed MH17 was taken down by a Buk missile that came from the 53rd Anti-Aircraft Missile Brigade of the Russian Federation. The missile was brought from the brigade’s Kursk headquarters to a field in Ukraine where militias fired it on MH17, investigators said. According to de Hoon, the prosecution will likely make the argument that “if you know you are bringing such a murderous weapon to a zone where there is no combatant privilege, you have taken that role in close conscious cooperation to bring down that flight,” making the Russian and Ukrainian suspects co-perpetrators.

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Finding the truth

None of the suspects appeared in court, but Pulatov sent lawyers to defend him. Pulatov was one of Dubinkskiy’s deputies in the self-styled Donetsk intelligence services. Under the Dutch system if you send a lawyer to represent you it is no longer an in absentia trial. For the other three accused, who did not appear or send representation, the court ruled the case could continue in their absence. “The court will allow due process to prevail and in the case of Girkin, Dubinskiy and Kharchenko they will be tried in absentia,” presiding judge Hendrik Steenhuis said.

While in absentia trials are unusual in international justice, with the exception of the Lebanon tribunal, such proceedings are not uncommon in The Netherlands. Under the Dutch inquisitorial system, the standard is that both the prosecution and the judges are magistrates that work towards finding the truth about what happened and who can be held criminally responsible. As such the prosecution’s job is not considered to be getting the highest possible conviction but ensuring a fair trial, including taking into account potentially exculpatory evidence for suspects.

Six years of waiting for victims’ families

Dutch Prime Minister dismissed potential concerns about an in absentia trial, saying the Dutch legal system “has an A1 reputation”. De Hoon points out that the Dutch rules for in absentia trials have also withstood the tests of the European Court of Human Rights.

This week’s procedure was described by the court beforehand as a stock taking exercise, to see where the prosecution is with its case, to check if defendants or their lawyers turn up, and to assess if additional investigations are needed. Opening statements and hearings on the substance on the case are likely months away.

THE FOUR ACCUSED

Igor Girkin (Russia) – aka Strelkov (the shooter) - is a former colonel of the FSB Russian security service. In 2014 he was appointed ‘defence minister’ of the self-proclaimed Donetsk republic, the Ukrainian separatist region from where the missile that hit MH17 was fired. 

Sergey Dubinskiy (Russia) is a former employee of the GRU, the Russian military intelligence services. He was the head of the intelligence services for the self-proclaimed Donetsk republic and worked closely with Girkin.

Oleg Pulatov (Russia) is a former member of a special military unit of the GRU. Pulatov was one of Dubinkskiy’s deputies in the self-styled Donetsk intelligence services.

Leonid Kharchenko (Ukraine) has no military background but at the time of the downing of flight MH17 he was the leader of a militia around Donetsk.

Prosecutors say the three Russian suspects kept close ties with the Russian military establishment which enabled them to get an anti-aircraft missile to the area around Donetsk with the help of Kharchenko on the ground.

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jean-rene.berrenger@hirondelle.org (Stephanie van den Berg) National tribunals Tue, 10 Mar 2020 09:17:47 +0100